Friends of the River et al v. U.S. Army Corps of Engineers et al

Filing 88

STIPULATION and ORDER signed by Judge John A. Mendez on 9/11/14: This case is dismissed without prejudice. (Kaminski, H)

1
2
3
4
5
6
7
8
9
10
11
12
13

E. Robert Wright (CA Bar No. 51861)
Friends of the River
1418 20th St., Suite 100
Sacramento, California 95811
Tel: [phone] x207
Fax: [phone]
[e-mail]
Lisa T. Belenky (CA Bar No. 203225)
Center for Biological Diversity
351 California St., Suite 600
San Francisco, CA 94104
[phone] x307
Fax: [phone]
[e-mail]
Jason Rylander (Pro hac vice)
Defenders of Wildlife
1130 17th Street N.W.
Washington D.C. 20036-4604
Tel: [phone] x145
Fax: [phone]
[e-mail]

14
Attorneys for Plaintiffs
15
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

16
17
18

FRIENDS OF THE RIVER, DEFENDERS OF
WILDLIFE, and CENTER FOR BIOLOGICAL
DIVERSITY,

19
20
21
22

Plaintiffs,
v.
UNITED STATES ARMY CORPS OF
ENGINEERS, et al.,

23
24

Defendants.

25
26
27
STIPULATION OF DISMISSAL AND ORDER
CASE NO. 2:11-CV-01650-JAM -JFM

1

Case No. 2:11-cv-01650-JAM -JFM
STIPULATION AND ORDER OF
VOLUNTARY DISMISSAL
WITHOUT PREJUDICE

1
2
3

Pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure, the Parties
hereto stipulate through counsel to dismissal of this case as follows:
1. Plaintiffs filed this case on June 20, 2011[Doc. 1], and filed a first amended complaint

4

on October 10, 2011[Doc. 25]. Specifically, Plaintiffs’ First Amended Complaint for Declaratory

5

and Injunctive Relief challenges policies allegedly adopted by the United States Army Corps of

6

Engineers (“Corps”) and consists of an Administrative Procedure Act (“APA”) claim for

7

violations of the National Environmental Policy Act (“NEPA”), an APA claim for violations of

8

the Endangered Species Act (“ESA”), and an APA claim for failure to follow rulemaking

9

procedures. Specifically, Plaintiffs’ claims relate to several alleged actions by the Corps

10

including: the issuance by the Corps of Engineering Technical Letter (“ETL”) 1110-2-571 on or

11

about April 10, 2009, establishing “Guidelines for Landscape Planting and Vegetation

12

Management at Levees, Floodwalls, Embankment Dams, and Appurtenant Structures”; issuance

13

of a draft Policy Guidance Letter (“PGL”) that adopted a new variance process in February 2010,

14

entitled “Process for Requesting a Variance From Vegetation Standards for Levees and

15

Floodwalls,” 75 Fed. Reg. 6364 (Feb. 9, 2010); and the Corps’ reliance on a document entitled

16

“Final Draft White Paper: Treatment of Vegetation within Local Flood-Damage-Reduction

17

Systems” dated April 20, 2007. Plaintiffs allege that the Corps violated NEPA by failing to

18

prepare an Environmental Impact Statement (EIS), violated the ESA by failing to ensure against

19

jeopardy through consultations with the National Marine Fisheries Service and the United States

20

Fish and Wildlife Service, and violated APA rulemaking provisions in adopting a policy

21

prohibiting vegetation on levees.

22

2. On October 21, 2010, Defendants filed a Motion to Dismiss all claims pursuant to Fed.

23

Rule Civ. Pro. 12(b)(1) [Doc. 26], Plaintiffs opposed the motion [Doc. 47], and this Court denied

24

Defendants’ motion to dismiss on April 27, 2012 [Doc. 55 ].

25

3. On or about April 30, 2014, the Corps issued a new ETL, ETL 1110-2-583,

26

establishing “Guidelines for Landscape Planting and Vegetation Management at Levees,

27

Floodwalls, Embankment Dams, and Appurtenant Structures.”
STIPULATION OF DISMISSAL AND ORDER
CASE NO. 2:11-CV-01650-JAM -JFM

2

1

4. In June 2014, Congress enacted into law and the President signed the Water Resources

2

Reform and Development Act of 2014 (“WRRDA”), including § 3013, P.L. 113-121, 128 Stat.

3

1193, 1284-86 [a true and correct copy of WRRDA § 3013 is attached hereto as Attachment A].

4

WRRDA § 3013 requires the Secretary of the Army to, among other things, “carry out a

5

comprehensive review of the guidelines [Corps of Engineers policy guidelines for management

6

of vegetation on levees] in order to determine whether current Federal policy relating to levee

7

vegetation is appropriate for all regions of the United States.” Section 3013(c) sets forth specific

8

factors that the Secretary “shall consider” in carrying out the review. Section 3013(f) requires

9

that not later than 18 months after the date of enactment of WRRDA the Secretary shall “revise

10

the guidelines based on the results of the review. . .” Section 3013(g) mandates that “Until the

11

date on which revisions to the guidelines are adopted in accordance with subsection (f), the

12

Secretary shall not require the removal of existing vegetation as a condition or requirement for

13

any approval or funding of a project, or any other action, unless the specific vegetation has been

14

demonstrated to present an unacceptable safety risk.”

15

5. The guidelines that must be reviewed by the Secretary pursuant to WRRDA Section

16

3013 include, but may not be limited to, the draft Policy Guidance Letter entitled “Process for

17

Requesting a Variance from Vegetation Standards for Levees and Floodwalls” (77 Fed. Reg.

18

9637 (Feb. 17, 2012)), ETL 1110-2-571, and the successor policy ETL 1110-2-583. This review

19

would by extension address the policy recommendations made in the draft final White Paper as

20

far as those recommendations pertain to the Rehabilitation Program’s implementation of the

21

vegetation guidelines, thereby encompassing the documents challenged by the Plaintiffs in this

22

action.

23

6. The Corps will proceed to conduct the review of the guidelines and take the actions

24

required by WRRDA § 3013. In accordance with § 3013(g) until the date on which revisions to

25

the guidelines are adopted, the Corps will not require the removal of existing vegetation as a

26

condition or requirement for any approval or funding of a project, or any other action, unless the

27

specific vegetation has been demonstrated to present an unacceptable safety risk. Accordingly,
STIPULATION OF DISMISSAL AND ORDER
CASE NO. 2:11-CV-01650-JAM -JFM

3

1

the Parties agree that the claims set forth in Plaintiffs’ Complaint need not be resolved by this

2

Court at this time.

3

7. The parties have also resolved by letter agreement(s), Defendants’ December 11, 2013

4

assertion of an inadvertent release of documents subject to a claim of privilege or protection as

5

trial protection materials.

6

8. The parties agree that nothing in this dismissal without prejudice shall limit any of the

7

plaintiffs’ rights to challenge past, present, and/or future actions or decisions by the U.S. Army

8

Corps of Engineers regarding vegetation management on levees including, but not limited to, any

9

guidelines, rules, engineering technical letters, variance policies, or similar documents issued by

10

the U.S. Army Corps of Engineers regarding vegetation management on levees, or any individual

11

authorizations or permits issued by the U.S. Army Corps of Engineers regarding vegetation

12

management on levees, any environmental review conducted by the U.S. Army Corps of

13

Engineers related to vegetation on levees, any Endangered Species Act consultation or lack

14

thereof by the U.S. Army Corps of Engineers, or any future biological opinions or concurrences

15

issued by U.S. Fish and Wildlife Service or the National Marine Fisheries Service to the U.S.

16

Army Corps of Engineers related to vegetation on levees, or to limit Defendants’ defenses

17

thereto.

18

9. All parties shall bear their own costs and attorneys’ fees.

19

THEREFORE, pursuant to Federal Rule of Civil Procedure 41(a), the undersigned parties

20

hereby stipulate to the voluntary dismissal without prejudice of all claims in Plaintiffs’ first

21

amended complaint.

22
23

Dated: September 11, 2014

24
25
26
27
STIPULATION OF DISMISSAL AND ORDER
CASE NO. 2:11-CV-01650-JAM -JFM

/s/ E. Robert Wright
E. Robert Wright (CA Bar No 51861)
Senior Counsel
Friends of the River
1418 20th St., Suite 100
Sacramento, California 95811
Tel: [phone] x207
Fax: [phone]

4

1

Dated: September 11, 2014

/s/ Lisa T. Belenky
Lisa T. Belenky (CA Bar No. 203225)
Center for Biological Diversity
351 California St., Suite 600
San Francisco, CA 94104
[phone] x307
Fax: [phone]
[e-mail]

Dated: September 11, 2014

11

/s/ Jason Rylander
Jason Rylander (Pro hac vice)
Defenders of Wildlife
1130 17th Street N.W.
Washington D.C. 20036-4604
Tel: [phone] x145
Fax: [phone]
[e-mail]

12

Attorneys for Plaintiffs

2
3
4
5
6
7
8
9
10

13
14

Dated: September 11, 2014

15
16
17
18
19
20

/s/ John H. Martin (as authorized 9/10/14)
John H. Martin, Trial Attorney
U.S. Department of Justice
Environment and Natural Resources Division
Wildlife and Marine Resources Section
999 18th Street, South Terrace Suite 370
Denver, CO 80202
Tel: [phone]
Fax: [phone]
Email: [e-mail]

25

Devon Lehman McCune, Senior Attorney
U.S. Department of Justice
Environment and Natural Resources Division
Natural Resources Section
999 18th Street, South Terrace Suite 370
Denver, CO 80202
Tel: [phone]
Fax: [phone]
Email: [e-mail]

26

Attorneys for Defendants

21
22
23
24

27
STIPULATION OF DISMISSAL AND ORDER
CASE NO. 2:11-CV-01650-JAM -JFM

5

1
2

Good cause appearing therefore, IT IS ORDERED that this case is dismissed without
prejudice.

3
4

DATED: September 11, 2014

/s/ John A. Mendez
United States District Judge

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
STIPULATION OF DISMISSAL AND ORDER
CASE NO. 2:11-CV-01650-JAM -JFM

6