Western Watersheds Project v. Jewell et al

Filing 14

STIPULATION AND ORDER signed by Chief Judge Morrison C. England, Jr. on 3/13/2015 ORDERING 13 no later than 6/30/2016 the Service shall submit to the Federal Register for publication a 12-month finding as to whether the listing of the Eagle Lake ra inbow trout as a threatened or endangered species is warranted; Defendants agree to pay Plaintiff $10,850.00 in settlement of the attorneys' fees and costs in this matter; the terms of this Agreement shall become effective upon entry of an order by the Court adopting the Agreement; upon adoption of this Agreement by the Court, all counts of Plaintiff's complaint shall be dismissed with prejudice; Notwithstanding the dismissal of this action, however, the parties hereby stipulate a nd respectfully request that the Court retain jurisdiction to oversee compliance with the terms of this Agreement and to resolve any motions to modify such terms; the terms and conditions of the parties' Stipulated Settlement Agreement are hereby ADOPTED as a enforceable ORDER of this Court. CASE CLOSED (Reader, L)

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René P. Voss (CA Bar No. 255758)
15 Alderney Road
San Anselmo, CA 94960
Phone: [phone]
Email: [e-mail]
Paul D. Ruprecht (OR Bar. No. 132762)
WESTERN WATERSHEDS PROJECT
126 NE Alberta Street, Suite 208
Portland, OR 97211-2665
Phone: [phone]
Email: [e-mail]
Pro Hac Vice
Attorneys for Plaintiff

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UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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WESTERN WATERSHEDS PROJECT,
Plaintiff,
v.
S.M.R. JEWELL, in her official capacity
as Secretary of the United States
Department of the Interior; DAN ASHE,
in his official capacity as Director of the
United States Fish and Wildlife Service;
and the UNITED STATES FISH AND
WILDLIFE SERVICE,
Defendants.

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CASE NO. 2:14-CV-02205-MCE-KJN
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STIPULATED SETTLEMENT
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AGREEMENT AND ORDER
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Western Watersheds Project v. Jewell, et al., 2:14-CV-02205-MCE-KJN
Stipulated Settlement Agreement and Order

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This Stipulated Settlement Agreement (“Agreement”) is entered into by and between

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Plaintiff Western Watersheds Project (“WWP”) and Defendants S.M.R. Jewell, in her official

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capacity as Secretary of the United States Department of the Interior; Dan Ashe, in his official

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capacity as Director of the United States Fish and Wildlife Service (“Service”); and the United

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States Fish and Wildlife Service (collectively, “Defendants”), who, by and through their

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undersigned counsel, state as follows:

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WHEREAS, in 2003, Mr. John Bosta submitted a petition to the Service requesting that

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the Service list the Eagle Lake rainbow trout (Oncorhynchus mykiss aquilarum) as an

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Endangered or Threatened Species under the Endangered Species Act (“ESA”);

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WHEREAS, on September 5, 2012, the Service issued a “90-day finding,” in which the

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Service determined that the Eagle Lake rainbow trout may be warranted for listing as an

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Endangered or Threatened Species. 77 Fed. Reg. 54548;

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WHEREAS, WWP sent a letter to Defendants on May 13, 2014, stating its intent to file

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suit to compel the Service to issue a finding pursuant to 16 U.S.C. § 1533(b)(3)(B) (“12-month

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finding”) as to whether the listing of the Eagle Lake rainbow trout is warranted, not warranted, or

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warranted but precluded;

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WHEREAS, on September 23, 2014, WWP filed the above-captioned action to compel
the Service to issue a 12-month finding pursuant to 16 U.S.C. § 1533(b)(3)(B);

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WHEREAS, the parties, through their authorized representatives, and without any

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admission or final adjudication of the issues of fact or law with respect to Plaintiff’s claims, have

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reached a settlement that they consider to be a just, fair, adequate, and equitable resolution of the

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disputes set forth in Plaintiff’s complaint;

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WHEREAS, the parties agree that settlement of this action in this manner is in the public
interest and is an appropriate way to resolve the dispute between them;

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NOW, THEREFORE, the parties hereby stipulate and agree as follows:

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1.

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No later than June 30, 2016, the Service shall submit to the Federal Register for

publication a 12-month finding as to whether the listing of the Eagle Lake rainbow trout as a

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Western Watersheds Project v. Jewell, et al., 2:14-CV-02205-MCE-KJN
Stipulated Settlement Agreement and Order

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threatened or endangered species is (a) not warranted; (b) warranted; or (c) warranted but

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precluded by other pending proposals, pursuant to 16 U.S.C. § 1533(b)(3)(B).

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2.

Either party may seek to modify the deadline specified in Paragraph 1 for good

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cause shown, consistent with the Federal Rules of Civil Procedure. In that event, or in the event

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that either party believes that the other party has failed to comply with any term or condition of

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this Agreement, the parties shall use the dispute resolution procedures specified in Paragraph 3,

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below.

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3.

The Order entering this Agreement may be modified by the Court upon good

cause shown, consistent with the Federal Rules of Civil Procedure, by written stipulation

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between the parties filed with and approved by the Court, or upon written motion filed by one of

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the parties and granted by the Court. In the event that either party seeks to modify the terms of

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this Agreement, including the deadline specified in Paragraph 1, or in the event of a dispute

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arising out of or relating to this Agreement, or in the event that either party believes that the

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other party has failed to comply with any term or condition of this Agreement, the party seeking

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the modification, raising the dispute, or seeking enforcement shall provide the other party with

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notice of the claim or modification. The parties agree that they will meet and confer (either

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telephonically or in person) at the earliest possible time in a good-faith effort to resolve the claim

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before seeking relief from the Court. If the parties are unable to resolve the claim themselves,

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either party may seek relief from the Court. In the event that Defendants fail to meet the deadline

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in Paragraph 1 and have not sought to modify it, Plaintiff’s first remedy shall be a motion to

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enforce the terms of this Agreement. This Agreement shall not, in the first instance, be

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enforceable through a proceeding for contempt of court.

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4.

No party shall use this Agreement or the terms herein as evidence of what does or

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does not constitute a reasonable timeline for issuing a 12-month finding under 16 U.S.C. § 1533

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in any other proceeding regarding the Service’s implementation of the ESA.

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5.

Nothing in this Agreement shall be construed or offered as evidence in any

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proceeding as an admission or concession of any wrongdoing, liability, or any issue of fact or

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law concerning the claims settled under this Agreement. Defendants do not waive any defenses
Western Watersheds Project v. Jewell, et al., 2:14-CV-02205-MCE-KJN
Stipulated Settlement Agreement and Order

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they may have concerning the claim under this Agreement or any similar claims brought in the

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future by any other party. This Agreement is executed for the purpose of settling Plaintiff’s

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Complaint, and nothing herein shall be construed as precedent or having preclusive effect in any

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other context.

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

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commitment or requirement that Defendants take action in contravention of the ESA, the

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Administrative Procedure Act (“APA”), or any other law or regulation, either substantive or

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procedural. This Agreement only requires that Federal Defendants take actions by the deadline

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specified in Paragraph 1. Nothing in this Agreement shall be construed to limit or modify the

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discretion accorded to the Service by the ESA, the APA, or general principles of administrative

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law with respect to the procedures to be followed in making any determination required herein,

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or as to the substance of any final determination. To challenge any determination issued pursuant

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to Paragraph 1, Plaintiff must file a separate action. Plaintiff reserves the right to challenge

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substantive decisions made by Defendants pursuant to Paragraph 1 above, and Defendants

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reserve the right to raise any applicable claims or defenses to such challenges.

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7.

Defendants agree that Plaintiff is entitled to an award of attorneys’ fees in this

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action and agree to pay Plaintiff’s reasonable attorneys’ fees and costs pursuant to Section 11(g)

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of the ESA, 16 U.S.C. § 1540(g). Therefore, Defendants agree to pay Plaintiff $10,850.00 in

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settlement of the attorneys’ fees and costs in this matter. Plaintiff agrees to accept this amount in

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full satisfaction of any and all claims, demands, rights, and causes of action for attorneys’ fees

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and costs incurred in connection with the above captioned litigation pursuant to the Equal Access

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to Justice Act, 28 U.S.C. § 2412(d), the ESA, 16 U.S.C. § 1540(g), and/or any other statute

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and/or common law theory, through and including the date of this agreement. Plaintiff agrees

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that receipt of this payment from Defendants shall operate as a release of Plaintiff’s claims for

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attorneys’ fees and costs in this matter, through and including the date of this agreement.

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Plaintiff agrees to furnish Defendants with the information necessary to effectuate

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this payment. Defendants agree to submit all necessary paperwork for the processing of the

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attorneys’ fees award to the Department of the Treasury’s Judgment Fund Office, pursuant to 16
Western Watersheds Project v. Jewell, et al., 2:14-CV-02205-MCE-KJN
Stipulated Settlement Agreement and Order

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U.S.C. § 1540(g)(4), within ten (10) days of the receipt of the necessary information from

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Plaintiff or the approval of this Agreement by the Court, whichever is later. Plaintiff’s attorneys

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agree to send confirmation of the receipt of the payment to counsel for Defendants within 14

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days of such payment.

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Plaintiff reserves the right to seek additional fees and costs incurred subsequent to

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this Agreement arising in any future litigation or continuation of the present action. Defendants

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reserve the right to contest fees claimed by Plaintiff or Plaintiff’s counsel, including hourly rates

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and the number of hours billed, in any future litigation or continuation of the present action.

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Further, this Agreement as to attorneys’ fees and costs has no precedential value and shall not be

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used as evidence in any other attorneys’ fees litigation.
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Nothing in this Agreement shall be interpreted as, or shall constitute, a

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requirement that Defendants are obligated to pay any funds exceeding those available, or take

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any action in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other

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applicable appropriations law. The parties agree that this Agreement was negotiated in good faith

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and that this Agreement constitutes a settlement of claims that were denied and disputed by the

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parties. By entering into this Agreement, the parties do not waive any claim or defense except as

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expressly stated herein. The Agreement contains all of the agreement between the parties, and is

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intended to be the final and sole agreement between the parties. The parties agree that any prior

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or contemporaneous representations or understanding not explicitly contained in this written

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Agreement, whether written or oral, are of no further legal or equitable force or effect.

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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 this Agreement and do hereby agree to the terms herein.

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The terms of this Agreement shall become effective upon entry of an order by the

Court adopting the Agreement.
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Upon adoption of this Agreement by the Court, all counts of Plaintiff’s complaint

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shall be dismissed with prejudice. Notwithstanding the dismissal of this action, however, the

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parties hereby stipulate and respectfully request that the Court retain jurisdiction to oversee
Western Watersheds Project v. Jewell, et al., 2:14-CV-02205-MCE-KJN
Stipulated Settlement Agreement and Order

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compliance with the terms of this Agreement and to resolve any motions to modify such terms.

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See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994).

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Respectfully submitted this 12th day of March, 2015.

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/s/ René Voss
René P. Voss (CA Bar No. 255758)
15 Alderney Road
San Anselmo, CA 94960
Phone: [phone]
Email: [e-mail]

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/s/ Paul D. Ruprecht
Paul D. Ruprecht (OR Bar. No. 132762)
WESTERN WATERSHEDS PROJECT
126 NE Alberta Street, Suite 208
Portland, OR 97211-2665
Phone: [phone]
Email: [e-mail]
Pro Hac Vice

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Attorneys for Plaintiff

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JOHN C. CRUDEN,
Assistant Attorney General
SETH M. BARSKY, Chief
KRISTEN L. GUSTAFSON,
Assistant Chief
/s/ Travis J. Annatoyn
TRAVIS J. ANNATOYN
Trial Attorney
U.S. Department of Justice
Environment & Natural Resources Division
Wildlife & Marine Resources Section
Ben Franklin Station, P.O. Box 7611
Washington, D.C. 20044-7611
[phone] (tel)
[phone] (fax)
[e-mail]
Attorneys for Federal Defendants

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Western Watersheds Project v. Jewell, et al., 2:14-CV-02205-MCE-KJN
Stipulated Settlement Agreement and Order

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UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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WESTERN WATERSHEDS PROJECT,
Plaintiff,
v.
S.M.R. JEWELL, in her official capacity
as Secretary of the United States
Department of the Interior; DAN ASHE,
in his official capacity as Director of the
United States Fish and Wildlife Service;
and the UNITED STATES FISH AND
WILDLIFE SERVICE,
Defendants.

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ORDER

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The terms and conditions of the parties’ Stipulated Settlement Agreement are hereby
adopted as an enforceable ORDER of this Court.
IT IS SO ORDERED.

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Dated: March 13, 2015