Conservation Congress v. United States Forest Service et al

Filing 195

STIPULATION and ORDER signed by District Judge John A. Mendez on 8/7/19 STAYING the Briefing on Plaintiff's motion for attorney's fees and costs until 10/31/19. If the parties have not resolved the issue of fees and costs by 10/31/19, they shall jointly inform the Court and shall propose to the Court a schedule for briefing Plaintiff's Motion for Attorney Fees and Costs pursuant to Local Rule 293. (Becknal, R)

1
2
3
4

STEVEN SUGARMAN, NM 5717 (pro hac vice)
347 County Road 55A
Cerrillos, NM 87010
[phone]
[e-mail]

7

JAMES J. TUCHTON, Cal. 150908
6439 E. Maplewood Ave.
Centennial, CO 80111
[phone]
[e-mail]

8

Attorneys for Plaintiff

9

(Additional counsel listed on next page)

5
6

10
11

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

12

SACRAMENTO DIVISION

13
14

CONSERVATION CONGRESS,

15
16
17
18
19
20

Plaintiff,
v.
UNITED STATES FOREST SERVICE and
UNITED STATES FISH AND WILDLIFE
SERVICE,
Federal Defendants,

21
22
23
24
25

and
TRINITY RIVER LUMBER CO.,
Defendant-Intervenor.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

No. 2:13-CV-01977-JAM-DB
SECOND
JOINT STIPULATION AND ORDER
TO STAY PLAINTIFF’S MOTION
FOR ATTORNEY FEES AND
COSTS

Hon. John A. Mendez

26
27
28
STIP. AND [PROPOSED] ORDER TO STAY PL.’S MOT. FOR ATT’Y’S FEES AND COSTS
Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB

1

1
2

LAWRENCE VANDYKE
Deputy Assistant Attorney General
United States Department of Justice
Environment & Natural Resources Division

3
4
5
6
7

HAYLEY A. CARPENTER, CA Bar No. 312611
Natural Resources Section
PO Box 7611
Washington, DC 20044-7611
[phone]
hayley.carpenter @usdoj.gov

8

13

SETH M. BARSKY, Chief
S. JAY GOVINDAN, Assistant Chief
ANDREA GELATT, Cal. 262617
Wildlife & Marine Resources Section
PO Box 7611
Washington, DC 20044-7611
[phone]
[e-mail]

14

Attorneys for Federal Defendants

9
10
11
12

15
16

The parties now jointly stipulate to an additional stay on the briefing of Plaintiff’s motion

17

for attorney fees and costs, which Plaintiff initially filed on June 16, 2017 and which Plaintiff

18

renewed on August 6, 2019. ECF Doc. Nos. 151, 192. The Plaintiffs and Federal Defendants

19

propose this stay solely to facilitate potential settlement and in seeking this stay do not concede

20

or compromise any claim or defense in support or against the award of attorney’s fees in this

21

case. In support of this stipulation, Plaintiff and Federal Defendants state as follows:

22
23
24
25

1.

Plaintiff intends to seek an award of attorney’s fees and costs under the Equal

Access to Justice Act (“EAJA”) and under the Endangered Species Act (“ESA”) citizen suit
provision.

26
2.

This Court entered judgment in this matter on May 30, 2017. ECF No. 142.

3.

Plaintiff noticed its appeal to the Ninth Circuit on May 31, 2017. ECF No. 143.

27
28

STIP. AND [PROPOSED] ORDER TO STAY PL.’S MOT. FOR ATT’Y’S FEES AND COSTS
Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB

2

1

4.

Under Local Rule 293, “[m]otions for awards of attorneys’ fees to prevailing

2

parties pursuant to statute shall be filed not later than twenty-eight (28) days after entry of final

3

judgment.”

4

5.

EAJA requires a party to file an application for fees and other expenses within 30

5
6
7
8
9
10

days of an unappealable final judgment. 28 U.S.C. § 2412(d)(1)(B). A “final judgment” under
EAJA is “a judgment that is final and not appealable.” Id. § 2412(d)(2)(G).
6.

Under the ESA citizen suit provision, “[u]nless a statute or a court order provides

otherwise,” an application for attorney’s fees and expenses must “be filed no later than 14 days
after the entry of judgment.” See Fed. R. Civ. P. 54(d)(2)(B)(i).

11
12
13
14
15
16

7.

The Ninth Circuit resolved Plaintiff’s appeal adversely to Plaintiff, and issued its

mandate in this case on August 1, 2019.
8.

Although the Court’s May 30, 2017, Judgment was not final for purposes of

EAJA or the ESA citizen suit provisions, Plaintiff filed its motion for attorney fees in an
abundance of caution to comply with the technical requirements of Local Rule 293. ECF Docs

17
18

Nos. 151, 192. At the request of Federal Defendants, Plaintiff filed a Renewed Motion for

19

Attorney Fees and Costs on August 6, 2019. ECF Doc. No. 192. Plaintiff has not yet filed a

20

Memorandum Brief in Support of its Motion for Attorney Fees and Costs in this matter.

21

9.

The parties represent to the Court that they desire to resolve the matter of the

22
23

amount of attorney fees and costs to be paid – if any – in the most expeditious and efficient

24

manner possible. Specifically, the parties believe that the matter of attorney fees and costs is

25

susceptible to resolution by a good faith negotiation and settlement. The parties desire to

26

proceed towards a final resolution of this case in that manner, and without further judicial

27

intervention or litigation on the matter of fees and costs.

28
STIP. AND [PROPOSED] ORDER TO STAY PL.’S MOT. FOR ATT’Y’S FEES AND COSTS
Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB

3

1

10.

The parties represent to the Court that a stay of proceedings on Plaintiff’s Motion

2

for Attorney Fees and Costs is necessary to facilitate a negotiated resolution of the fee and cost

3

issue, and further represent to the Court that the negotiation will be somewhat complicated

4

because of the unusual length and procedural history of this litigation, the fact that Plaintiff was

5
6
7
8
9
10

represented by multiple counsel over the case’s pendency, and the fact that Plaintiff prevailed on
only a subset of its claims.
11.

It is within the Court’s power to stay briefing on Plaintiff’s motion to conserve the

resources of the Court and the parties. See Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)
(“[T]he power to stay proceedings is incidental to the power inherent in every court to control the

11
12
13
14
15
16

disposition of the causes on its docket with economy of time and effort for itself, for counsel, and
for litigants.”).
For these reasons, and for good cause shown, the parties stipulate as follows and request
that the Court approve this stipulation:
1. Briefing on Plaintiff’s motion for attorney’s fees and costs is stayed until October 31,

17
18

2019.

19
20
21
22
23
24
25
26
27
28
STIP. AND [PROPOSED] ORDER TO STAY PL.’S MOT. FOR ATT’Y’S FEES AND COSTS
Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB

4

1
2
3
4

2. If the parties have not resolved the issue of fees and costs by October 31, 2019, they
shall jointly inform the Court and shall propose to the Court a schedule for briefing
Plaintiff’s Motion for Attorney Fees and Costs pursuant to Local Rule 293.

5
6

Respectfully submitted this 6th day of August, 2019.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

/s/ Steven Sugarman
STEVEN SUGARMAN, NM 5717
(pro hac vice)
347 County Road 55A
Cerrillos, NM 87010
[phone]
[e-mail]
JAMES J. TUCHTON, Cal. 150908
6439 E. Maplewood Ave.
Centennial, CO 80111
[phone]
[e-mail]
Attorneys for Plaintiff

LAWRENCE VANDYKE
Deputy Assistant Attorney General
United States Department of Justice
Environment & Natural Resources Division
/s/Hayley A. Carpenter (with permission on
August 5, 2019)
HAYLEY A. CARPENTER, CA Bar No.
312611
Trial Attorney
Natural Resources Section
PO Box 7611
Washington, DC 20044-7611
[phone]
[e-mail]
SETH M. BARSKY, Chief
S. JAY GOVINDAN, Assistant Chief
ANDREA GELATT, Cal. 262617
Trial Attorney
Wildlife & Marine Resources Section
PO Box 7611
Washington, DC 20044-7611
[phone]
[e-mail]

23
24

Attorneys for Federal Defendants

25
26
27
28
STIP. AND [PROPOSED] ORDER TO STAY PL.’S MOT. FOR ATT’Y’S FEES AND COSTS
Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB

5

1
ORDER

2
3
4

The Court having considered the stipulation of the parties, IT IS SO ORDERED.

5
6
7
8

Dated: August 7, 2019

/s/ John A. Mendez____________
Hon. John A. Mendez
United States District Court Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
STIP. AND [PROPOSED] ORDER TO STAY PL.’S MOT. FOR ATT’Y’S FEES AND COSTS
Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB

6