Murphy v. United States Forest Service, et al.

Filing 102

STIPULATION and ORDER RE DISMISSAL signed by District Judge Troy L. Nunley on 10/10/16. CASE CLOSED (Benson, A)

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NOSSAMAN LLP
PAUL S. WEILAND (CA 237058)
[e-mail]
BENJAMIN Z. RUBIN (CA 249630)
[e-mail]
ASHLEY J. REMILLARD (CA 252374)
[e-mail]
18101 Von Karman Avenue, Suite 1800
Irvine, CA 92612-0177
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff Dennis D. Murphy

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DENNIS D. MURPHY, PH.D.
Plaintiff,

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Case No: 2:13-cv-02315-TLN-AC

STIPULATION AND ORDER RE
DISMISSAL

vs.

UNITED STATES FOREST SERVICE;
THOMAS TIDWELL, in his official capacity as Date Action Filed: Nov. 16, 2013
Chief of THE UNITED STATES FOREST
SERVICE; NANCY J. GIBSON, in her official
capacity as Forester of THE UNITED STATES
FOREST SERVICE,
Defendants.

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Case No. 2:13-cv-02315-TLN-AC

STIPULATION AND ORDER
26551862

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Plaintiff filed a complaint on November 6, 2013, which was subsequently amended on

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two occasions and presently alleges Defendants violated the National Environmental Policy Act

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(“NEPA”), 42 U.S.C. § 4321 et seq., and the Endangered Species Act (“ESA”), 16 U.S.C.

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§ 1531 et seq., during the planning and implementation of the Upper Echo Lake Hazardous

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Fuels Reduction Project. The parties having met and conferred hereby agree as follows:

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1)

Defendants will not take any further action to fund, authorize, or carry out the

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Upper Echo Lake Hazardous Fuels Reduction Project, which was previously approved on

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November 15, 2012, and withdrawn on July 20, 2015.

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2)

Although Defendants have no present plan or intention to burn the downed

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wood, slash, and vegetation previously cut and piled by the agency as part of Phase I of the

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Upper Echo Lake Hazardous Fuels Reduction Project, Defendants retain, at their discretion and

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consistent with all applicable legal requirements (including, where applicable, NEPA and the

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ESA), the ability to take appropriate steps to remediate such materials. In the event that the

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Forest Service proposes to burn any vegetation previously cut and piled by the agency as part of

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Phase I of the Upper Echo Lake Hazardous Fuels Reduction Project before October 1, 2021, the

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agency will provide written notice to Plaintiff through counsel of such proposal and include in a

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map identifying with sufficient specificity the locations of each of the piles it intends to or may

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burn as part of such remediation, and an explanation of the reasons for its proposed action. The

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written notice will be provided at least 60 days in advance of any action.

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3)

Defendants agree to pay, and Plaintiff agrees to accept, $150,000 in full and

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complete satisfaction of any and all claims pursuant to the Equal Access to Justice Act, 5

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U.S.C. § 2412 et seq. and/or any other statute, for all attorney fees and costs incurred by

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Plaintiff in the above captioned lawsuit. Defendants’ payment will be made by electronic funds

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transfer to the appropriate trust account for Nossaman LLP. Within ten (10) days of entry of

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this Stipulation, Plaintiff will provide Defendants with the following information necessary for

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Defendants to process the payment by electronic funds transfer: the payee’s name, the payee’s

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address, the payee’s bank account number, the account type, the name of the payee’s bank, the

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bank routing transit number, and the payee’s tax identification number. Defendants agree to
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STIPULATION AND ORDER

Case No. 2:13-cv-02315-TLN-AC

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submit all necessary paperwork to the appropriate office within thirty (30) days of receipt of the

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signed Court order approving this Stipulation, or within thirty (30) days of receiving Plaintiff’s

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account information and other information needed to facilitate the payment, whichever is later.

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4)

Plaintiff’s attorneys are receiving funds in trust for Plaintiff, and Plaintiff agrees

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to this procedure. Plaintiff and its attorneys agree to hold harmless Defendants in any litigation,

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further suit, or claim arising from the payment of the agreed upon $150,000.00 settlement

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amount pursuant to Paragraph 3, other than for an allegation of Defendants’ breach of this

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Stipulation.

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5)

Defendants will not take any retaliatory action against Plaintiff due to Plaintiff’s

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pursuit of this action and any other activities with respect to the Upper Echo Lake Hazardous

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Fuels Reduction Project.

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6)

Plaintiff and Defendants stipulate to dismissal of this Action with prejudice

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pursuant to Fed. R. Civ. P. 41(a)(2). This agreement constitutes the full and complete

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satisfaction of any and all claims arising from (a) the NEPA and ESA causes of action set forth

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in the complaint filed in this lawsuit; (b) any and all claims for attorneys’ fees and costs that

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Plaintiff may seek to pursue in this matter relating to the litigation or settlement; and (c) any

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litigation or administrative proceeding that Plaintiff has brought, could bring, or could have

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brought regarding the Upper Echo Lake Hazardous Fuels Reduction Project, including, but not

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limited to, any litigation or administrative proceeding under the Information Quality Act,

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Section 515 of Public Law 106-554.

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7)

By entering into this agreement, Plaintiff does not waive any right to challenge

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future actions by the Forest Service. Nothing in this agreement is intended to provide Plaintiff

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with any cause of action that would not otherwise exist, or excuse Plaintiff from any applicable

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procedural requirements for such a challenge to a future action, including but not limited to

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exhaustion of administrative remedies.

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8)

No representations have been made or intended as to the federal or state tax

consequences of the payment under this agreement.

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STIPULATION AND ORDER

Case No. 2:13-cv-02315-TLN-AC

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9)

This instrument does not constitute an admission of liability or fault on the part of

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the Defendants, or any federal agencies, agents, servants or employees, in reference to the events

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alleged in the Complaint or otherwise. It is entered into for the purpose of compromising

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disputed claims and avoiding the expenses, distractions and uncertainties of litigation.

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10)

The Plaintiff acknowledges that it releases and forever waives any right to appeal or

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election to appeal of any order, decision, judgment, or entry of judgment arising from the Complaint.

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Defendants acknowledge that they release and forever waive any right to appeal or election to appeal

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of any order, decision, judgment, or entry of judgment arising from the Complaint.

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11)

The Parties agree that the Court may retain jurisdiction over this matter solely to

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enforce the terms of this Settlement Agreement. See Kokkonen v. Guardian Life Ins. Co., 511

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U.S. 375 (1994). Any dispute over compliance with any provision of this Settlement Agreement

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shall proceed as set forth in Paragraph 12.

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12)

In the event that any party believes another party to be in breach of this

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agreement, such party must give notice to the other party at the earliest possible date. The other

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party shall have 21 days to respond to the claim of breach. If such a response is provided, the

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parties shall have 60 days to meet and confer regarding the alleged breach, and any potential

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remedy. Notice from Plaintiff should be provided to the Forest Supervisor and to undersigned

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counsel for Defendants. The Parties agree that neither will seek contempt of court as a remedy

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for any violation of this Settlement Agreement, and the Parties therefore knowingly waive any

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right that they might have to seek an order of contempt for any such violation. No party shall

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seek action by this or any other court regarding the alleged breach until either (a) the expiration

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of the meet and confer period, or (b) both parties agree, in writing, that they have reached an

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impasse. Nothing in this section is intended to create a cause of action that would not otherwise

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exist, or to invest this Court with authority that it would not otherwise have.

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13)

No provision of this Agreement shall be interpreted as, or constitutes, a

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commitment or requirement that Defendants are obligated to spend funds in violation of the

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Anti-Deficiency Act, 31 U.S.C. § 1341, or any other law or regulation.

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Case No. 2:13-cv-02315-TLN-AC

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14)

The Agreement contains all of the agreement between Plaintiff and Defendants,

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and is intended to be the final and sole agreement between them. Plaintiff and Defendants

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agree that any prior or contemporaneous representations or understanding not explicitly

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contained in this written Agreement, whether written or oral, are of no further legal or equitable

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force or effect.

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15)

The undersigned representatives of each party certify that they are fully

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authorized by the party or parties they represent to agree to the Court’s entry of the terms and

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conditions of the Agreement and do hereby agree to the terms herein.

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Dated: October 10, 2016

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By: /s/ Paul S. Weiland
Attorneys for Plaintiff Dennis D. Murphy

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NOSSAMAN LLP
PAUL S. WEILAND
BENJAMIN Z. RUBIN
ASHLEY J. REMILLARD

Dated: October 10, 2016

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PHILIP A. TALBERT
Acting United States Attorney
By:

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/s/ Gregory T. Broderick (authorized 10/6/2016)
Attorneys for Defendants

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IT IS SO ORDERED.

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Dated: October 10, 2016

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Troy L. Nunley
United States District Judge

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STIPULATION AND ORDER

Case No. 2:13-cv-02315-TLN-AC