Friends of the River v. National Marine Fisheries Service et al

Filing 24

STIPULATION AND ORDER signed by District Judge John A. Mendez on 11/28/2016 DISMISSING the Ninth and Tenth Claims of the 1 Complaint, with prejudice; DISMISSING Defendants Sally Jewell, Bureau of Land Management, Neil Kornze; DISMISSING a portion o f the Seventh Claim of the 1 Complaint, with prejudice; DISMISSING the 21 Counterclaim, without prejudice; GRANTING the plaintiff leave to file an Amended Complaint within five days; ORDERING all defendants to file their Answers to the Amended Complaint 30 days thereafter; ORDERING that the plaintiff and Yuba County Water Agency bear their own fees and costs in conjunction with the dismissed claims and counterclaims. (Michel, G.)

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Christopher A. Sproul (Bar No. 126398)
ENVIRONMENTAL ADVOCATES
5135 Anza Street
San Francisco, California 94121
Tel: [phone]
Fax: [phone]
[e-mail]
Patricia Weisselberg (Bar No. 253015)
LAW OFFICE OF PATRICIA WEISSELBERG
115 Oakdale Avenue
Mill Valley, CA 94941
Tel: [phone]
[e-mail]
Attorneys for Plaintiff
FRIENDS OF THE RIVER

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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Case No. 2:16-cv-00818-JAM-EFB

Friends of the River,

v.

STIPULATION AND ORDER TO
DISMISS PORTIONS OF PLAINTIFF’S
COMPLAINT, YCWA
COUNTERCLAIMS

National Marine Fisheries Service, et al.,

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Defendants.

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This Stipulation is entered into by and between Plaintiff Friends of the River, Defendant-

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Intervenor Yuba County Water Agency (“YCWA”), and Defendants National Marine Fisheries Service

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("NMFS"), Penny Pritzker as Secretary of Commerce, United States Army Corps of Engineers

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("Corps"), Lt. General Todd T. Semonite, Commanding General of the Corps, S.M.R. Jewell as

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Secretary of the Interior, Bureau of Land Management ("BLM"), and Neil Kornze, Director of the BLM.
WHEREAS, Plaintiff filed a Complaint for Declaratory and Injunctive Relief (Document No. 1)

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on April 20, 2016;

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///

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Stipulation To Dismiss Claims and Amend Complaint

Case no. 2:16-cv-00818-JAM-EFB

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WHEREAS, on October 7, 2016, YCWA filed a motion to intervene, (Document No. 16), and,

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on October 13, 2016, the Court issued an order granting YCWA’s motion to intervene (Document No.

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WHEREAS, on October 17, 2016, YCWA filed a Counterclaim against Plaintiff in YCWA’s

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Answer alleging that Plaintiff’s Ninth and Tenth Claims and parts of Plaintiff’s Seventh Claim violated

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the Restated Stipulation of Settlement Between Plaintiff and Defendant Yuba County Water Agency;

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Amended Order Dismissing Plaintiff’s Claims and Relief Against YCWA (“2009 Settlement

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Agreement and Order”) entered by this Court on June 15, 2009 in South Yuba River Citizens

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League, et al. v. National Marine Fisheries Service, et al., Case No. 2:06-CV-02845-LKK-JFM

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(E.D. Cal. Document No. 291) because Plaintiff’s Ninth and Tenth Claims and parts of Plaintiff’s

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Seventh Claim asserted claims relating to the Brophy Diversion (water diversion infrastructure owned

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and operated by YCWA on the Yuba River) that the 2009 Settlement Agreement and Order bars

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Plaintiff from asserting;

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WHEREAS, YCWA contends that the allegations in paragraphs 126, 127, and 128 of Plaintiff’s

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Seventh Claim that the Corps has caused take of protected species in violation of Endangered Species

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Act (“ESA”) section 9, 16 U.S.C. § 1538(g), by issuing and extending a license to YCWA for the

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Brophy Diversion, are barred by the 2009 Settlement Agreement and Order;

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WHEREAS, Plaintiff does not admit that the 2009 Settlement Agreement and Order bars it from
bringing its Ninth and Tenth Claims and the aforementioned allegations in its Seventh Claim;
WHEREAS, the Parties, through their authorized representatives and without either adjudication

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of Plaintiff’s Ninth and Tenth Claims and the allegations in Plaintiff’s Seventh Claim concerning the

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Corps perpetuating take of protected species by issuing and extending a license to YCWA or admission

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by the Defendants of any alleged violation or other wrongdoing in connection with these claims, have

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chosen to resolve this action through settlement and to avoid the costs and uncertainties of litigation of

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these claims;

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WHEREAS, YCWA and the Plaintiff, through their authorized representatives and without
either adjudication of YCWA’s Counterclaim against Plaintiff or admission by Plaintiff of any alleged

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Stipulation To Dismiss Claims and Amend Complaint

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Case no. 2:16-cv-00818-JAM-EFB

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violation or other wrongdoing alleged in this Counterclaim, have chosen to resolve this Counterclaim

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through settlement and to avoid the costs and uncertainties of litigation of this claim;

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WHEREAS, the Plaintiff shall be granted leave to file and shall file an Amended Complaint

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which shall omit any claims or allegations that YCWA contends are barred by the 2009 Settlement

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Agreement;

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NOW THEREFORE IT IS HEREBY STIPULATED BETWEEN THE PARTIES AND
ADJUDGED, ORDERED AND DECREED BY THE COURT AS FOLLOWS:
1. Plaintiff’s Ninth and Tenth Claims are dismissed with prejudice and S.M.R. Jewell, the BLM
and Neil Kornze, Director of BLM, are dismissed as parties, effective on the date that the Court issues
an order approving this stipulation.
2. The portion of Plaintiff’s Seventh Claim alleging, in paragraphs 126, 127, and 128, that the

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Corps has caused take of protected species in violation of ESA section 9, 16 U.S.C. § 1538(g), by

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issuing and extending a license to YCWA for the Brophy Diversion is dismissed with prejudice,

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effective on the date that the Court issues an order approving this stipulation.

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3. YCWA’s Counterclaim asserted in its Answer against Plaintiff is dismissed without

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prejudice, effective on the date that the Court issues an order approving this stipulation. However,

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YCWA shall not refile claims against Plaintiff for breach of the 2009 Settlement Agreement and Order

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so long as Plaintiff only pursues the claims and remedies remaining in the Amended Complaint.

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4. Plaintiff shall be granted leave to file and shall file Plaintiff’s Amended Complaint attached

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hereto as Exhibit A within five days of the Court issuing an order approving this stipulation; Plaintiff

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and YCWA agree that the Amended Complaint does not assert any claims or allegations that are, or pray

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for any relief that is, barred by the 2009 Settlement Agreement.

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5. All Defendants shall have 30 days from the date that Plaintiff files its Amended Complaint to
file Answers to the Amended Complaint.

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Stipulation To Dismiss Claims and Amend Complaint

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Case no. 2:16-cv-00818-JAM-EFB

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6. Plaintiff shall not in this case seek any order from the Court that would directly or indirectly

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require YCWA to reduce diversions of water from the Brophy Diversion, restrict YCWA from operating

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the Brophy Diversion, or require YCWA to modify the Brophy Diversion.

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7. Plaintiff may pursue the following allegations in its Amended Complaint: 1

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(a) the allegations in its First Claim that the Corps' October 2013 Biological Assessment for the

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U.S. Army Corps of Engineers' Ongoing Operation and Maintenance of Englebright Dam and Reservoir

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on the Yuba River ("Englebright BA") is arbitrary, capricious, an abuse of discretion and not in

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accordance with the ESA because it excludes the Corps’ issuance and ongoing administration of a

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license to YCWA for the operation of the Brophy Diversion from the Corps' actions on the Yuba River

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(“Corps Yuba Action”) that presently require ESA consultation;

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(b) the allegations in its Second Claim that NMFS's concurrence ("Englebright Concurrence"), in

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a letter to Colonel Michael J. Farrell, Commander, U.S. Army Corps of Engineers, Sacramento District,

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on May 12, 2014 (File Number WCR-2013-3), with the Englebright BA's narrow definition of the Corps

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Yuba Action is arbitrary, capricious, an abuse of discretion and not in accordance with the ESA to the

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extent that NMFS determined that the Corps' issuance and ongoing administration of the Corps' license

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for the Brophy Diversion is a future action for which no ESA consultation is presently required;

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(c) the allegations in its Third Claim that the May 12, 2014 Biological Opinion for the Corps'

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Operation and Maintenance of Daguerre Point Dam and Fish Ladders ("Daguerre BiOp") is arbitrary,

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capricious, an abuse of discretion, and not in accordance with the ESA because it does not analyze the

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entire Corps Yuba Action, which should lawfully include the Corps’ issuance and ongoing

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administration of the license to YCWA for operation of the Brophy Diversion;

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(d) the allegations in its Fourth Claim that NMFS's rescission of the February 29, 2012

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Biological Opinion for the U.S. Army Corps of Engineers Operation and Maintenance of Englebright

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and Daguerre Point Dams and Englebright Reservoir on the Yuba River (File number

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151422SWR2006SA00071) ("2012 BiOp") and its replacement with the legally inadequate Daguerre

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Federal Defendants do not join in ¶7 of this Stipulation.

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Stipulation To Dismiss Claims and Amend Complaint

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Case no. 2:16-cv-00818-JAM-EFB

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BiOp is arbitrary, capricious, an abuse of discretion and not in accordance with the ESA because the

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Daguerre BiOp did not analyze the Corps’ issuance and ongoing administration of the license for the

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Brophy Diversion as part of the Corps Yuba Action; and

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(e) the allegations in its Fifth Claim that the Corps has failed to comply with its ESA section

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7(a)(2) procedural duties by failing to include the Corps' issuance and ongoing administration of the

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license for the Brophy Diversion in its Englebright BA and by failing to include this licensing as part of

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the Corps Yuba Action upon which the Corps and NMFS consulted.

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As the sole relief for the allegations in the First, Second, Third, Fourth and Fifth Claims
discussed in subparagraphs (a)-(e) above, Plaintiff shall seek an order ruling that the Daguerre BiOp, the

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Englebright Concurrence, and the Englebright BA are arbitrary and capricious, and that the Corps

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violated its ESA section 7(a)(2) procedural duties, vacating the Englebright Concurrence and Daguerre

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BiOp, and requiring the reinitiation of consultation between NMFS and the Corps over the Corps’

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issuance, ongoing administration, or extension of a license to YCWA for the Brophy Diversion.

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Defendants do not waive and may assert any defenses to Plaintiff’s claims or requested remedies
in this paragraph.

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8. This stipulation shall not limit the rights of each Defendant and YCWA to deny any of the

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allegations described in the preceding paragraphs, to assert any defenses, or to oppose the request for

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relief described in the preceding paragraph.

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9. Plaintiff and YCWA shall bear their own costs in conjunction with Plaintiff’s Ninth and Tenth

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Claims, the dismissed portions of Plaintiff’s Seventh Claim, and YCWA’s counterclaim against

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Plaintiff. Plaintiff agrees not to file a memorandum of costs with the Court against YCWA, or otherwise

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claim or seek to recover costs or attorneys’ fees against YCWA, in connection with this Action.

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Plaintiff further agrees that this Stipulation shall not provide grounds to claim or seek any form of

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compensation from Federal Defendants for attorneys’ fees, expert fees, or costs of litigation incurred

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from Plaintiff’s litigation against YCWA in this matter (including for time expended preparing this

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stipulation or the Amended Complaint contemplated in Paragraphs 2 and 3 of this stipulation) where

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such compensation is otherwise prohibited by law.

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Dated: November 23, 2016

Respectfully submitted,

Stipulation To Dismiss Claims and Amend Complaint

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Case no. 2:16-cv-00818-JAM-EFB

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/s/ Christopher a Sproul
Christopher A. Sproul
ENVIRONMENTAL ADVOCATES
5135 Anza Street
San Francisco, California 94121
Tel: [phone]
Fax: [phone]
Email: [e-mail]

________________________________
John C. Cruden
Assistant Attorney General
Environment & Natural Resources Division
S. Jay Govindan, Assistant Chief

Patricia Weisselberg
LAW OFFICE OF PATRICIA WEISSELBERG
115 Oakdale Avenue
Mill Valley, CA 94941
Tel: [phone]
Email: [e-mail]
Attorneys for Plaintiff
FRIENDS OF THE RIVER

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/s/Travis Annatoyn
Travis Annatoyn, Trial Attorney
Trent S.W. Crable, Trial Attorney
U.S. Department of Justice
Environment & Natural Resources Division
Wildlife & Marine Resources Section
Ben Franklin Station, P.O. Box 7611
Washington, DC 20044-7611
Tel: [phone] Fax: [phone]
Attorneys for the Federal Defendants
/s/ Howard F. Wilkins III
Howard F. Wilkins III
L. Elizabeth Sarine
REMY MOOSE MANLEY, LLP
555 Capitol Mall, Suite 800
Sacramento, California 95814
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Attorneys for Defendant-Intervenor

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ORDER

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Pursuant to stipulation, IT IS SO ORDERED.
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Dated: 11/28/16

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

Stipulation To Dismiss Claims and Amend Complaint

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Case no. 2:16-cv-00818-JAM-EFB