High Sierra Hikers, et al v. Powell, et al

Filing 396

PARTIES' STIPULATION AND ORDER RE: Plaintiffs' Amended Motion for Attorneys' Fees, Costs and Expenses Pursuant to EAJA 371 . Signed by Judge Elizabeth D. Laporte on 12/8/2008. (lmh, COURT STAFF) (Filed on 12/8/2008)

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Julia A. Olson (CA Bar # 192642) Wild Earth Advocates 2985 Adams Street Eugene, Oregon 97405 tel: [phone]; fax: [phone] [e-mail] Peter M.K. Frost, pro hac vice Western Environmental Law Center 1216 Lincoln Street Eugene, Oregon 97401 tel: [phone]; fax: [phone] [e-mail] Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA HIGH SIERRA HIKERS ASSOCIATION, et al. Plaintiffs, v. RANDY MOORE, et al, Defendants, NATIONAL FOREST RECREATION ASSOCIATION, et al. Defendants-Intervenors. / No. C-00-1239 EDL PARTIES' STIPULATION AND [PROPOSED] ORDER RE: PLAINTIFFS' AMENDED MOTION FOR ATTORNEYS' FEES, COSTS, AND EXPENSES PURSUANT TO EAJA

PARTIES' STIPULATION AND [PROPOSED] ORDER RE: ATTORNEYS' FEES, C-00-1239-EDL

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RECITALS In April, 2000, Plaintiffs brought suit against the Federal Defendants for declara-

tory and injunctive relief under the Administrative Procedure Act, 5 U.S.C. § 701­706, arising out of the Federal Defendants' alleged violations of the National Environmental Policy Act, 42 U.S.C. §§ 4321­4370f, the National Forest Management Act, 16 U.S.C. §§ 1600­1687, and the Wilderness Act, 16 U.S.C. §§ 1131­1136. Plaintiffs challenged the Forest Service's issuance of pack stock permits for commercial operators in the John Muir and Ansel Adams Wilderness Areas on the Sierra and Inyo National Forests. 2. The Federal Defendants are the U.S. Forest Service; Gail Kimbell, Chief of the

Forest Service; Jim Upchurch, Supervisor of the Inyo National Forest; Edward Cole, Supervisor of the Sierra National Forest; and Randy Moore, Regional Forester for Region 5. 3. On June 5, 2001, the district court issued a decision on the parties' cross-motions

for summary judgment. The district court entered an injunction in 2002. Plaintiffs and the Federal Defendants thereafter took cross-appeals to the Ninth Circuit. On December 1, 2004, the court of appeals issued an opinion affirming in part and reversing in part the district court's decision. High Sierra Hikers Ass'n v. Blackwell ("Blackwell"), 390 F.3d 630 (9th Cir. 2004). 4. On March 16, 2005, the Ninth Circuit ruled on the Plaintiffs' request for

attorneys' fees, costs, and other expenses for the appeal in Blackwell, awarding costs and a portion of the requested fees. On July 3, 2007, the district court entered an order approving the parties' stipulation to an award to Plaintiffs of attorneys' fees, costs, and other expenses, for the proceedings incurred through the date of the Ninth Circuit's mandate in Blackwell. 5. After the Ninth Circuit's remand in Blackwell, the Plaintiffs amended their

complaint to challenge the Federal Defendants' actions on remand. On October 30, 2007, the district court issued a decision on the merits, granting in part and denying in part Plaintiffs' motion for summary judgment, and granting in part and denying in part the Federal Defendants' cross-motion for summary judgment. Subsequently, on May 8, 2008, the district court entered
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an order granting in part and denying in part Plaintiffs' motion for a permanent injunction. 6. The Plaintiffs have filed a motion for attorneys' fees, costs, and other expenses

for the district court proceedings following the issuance of the Ninth Circuit's mandate in Blackwell, pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A). The Federal Defendants have opposed Plaintiffs' motion. 7. The Plaintiffs and Federal Defendants, in the interests of avoiding further litiga-

tion and to reach a mutually acceptable resolution of Plaintiffs' claims for attorneys' fees, costs, and other expenses under EAJA, have negotiated a settlement of those claims. STIPULATION The Plaintiffs and Federal Defendants hereby agree as follows: 1. The provisions of this Stipulation and [Proposed] Order shall apply to Plaintiffs,

their agents, successors and assigns, and anyone acting on their behalf, and to the Federal Defendants. 2. The Federal Defendants will pay to Plaintiffs $245,000.00 in full settlement and

satisfaction of all of the Plaintiffs' claims for attorneys' fees, costs, and other expenses, in the above-captioned case incurred since the Ninth Circuit's mandate in Blackwell. Payment shall be accomplished by the Forest Service using an electronic funds transfer into an account identified by Plaintiffs' counsel. Within 5 business days of the date this Settlement Agreement is filed, Plaintiffs shall submit (if not already submitted) the account information and other information necessary for the Forest Service to process payment. The Forest Service shall submit the paperwork for the payment within twenty (20) business days after this Settlement Agreement is approved by the Court or Plaintiffs submit the required payment information, whichever is later. 3. Plaintiffs will accept the sum of $245,000.00 in full settlement and satisfaction of

all of their claims for attorneys' fees, costs, and other expenses incurred since the Ninth Circuit's mandate in Blackwell and release the Federal Defendants from any liability for attorneys' fees, costs, and other expenses incurred or claimed, or that could have been claimed, for work
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performed after that date. Plaintiffs or their counsel shall submit confirmation of receipt of payment in the above amount to counsel for the Federal Defendants, within 14 days of receipt of payment. 4. Plaintiffs agree that, in any future proceedings in this case, they will not seek to

recover any attorneys' fees, costs, or other expenses claimed, or that could have been claimed, for work performed since the date of the Ninth Circuit's mandate in Blackwell, through the entry of an order approving this Stipulation and [Proposed] Order. 5. Plaintiffs represent that the proper entity to receive payment pursuant to this

Stipulation and [Proposed] Order is "Wilderness Watch," P.O. Box 9175, Missoula, Montana 59807. Plaintiffs represent that the tax I.D. of Wilderness Watch is 81-0457646. Plaintiffs are solely responsible for any apportionment of the amount paid under this Stipulation and [Proposed] Order as among themselves. All Plaintiffs and Plaintiffs' counsel release and hold the Federal Defendants harmless from any liability for attorneys' fees, costs, expenses, or other claims that might be made by entities other than Wilderness Watch as to the attorneys' fees, costs, and other expenses settled herein arising from payment as provided above. 6. Nothing in this Stipulation and [Proposed] Order shall constitute or be construed

to constitute a waiver of sovereign immunity by the United States. Nothing in this Stipulation and [Proposed] Order shall require, or be deemed to require, that the United States pay or obligate any funds, or take any other action, in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other federal appropriations law. 7. Nothing in this Stipulation and [Proposed] Order shall constitute, or be construed

to constitute, an admission of liability on the part of the Federal Defendants as to Plaintiffs' claims for attorneys' fees, costs, and other expenses in the above-captioned litigation or an admission that the Federal Defendants' position was not substantially justified. Nothing in this Stipulation and [Proposed] Order shall constitute, or be construed to constitute, an admission of liability or waiver of any defense on the part of the Federal Defendants as to Plaintiffs' claims in
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the underlying suit. Nothing in this Stipulation and [Proposed] Order shall be cited in any other proceeding for any purpose other than in a proceeding to enforce the terms hereof. 8. The undersigned representatives of each party certify that they are fully

authorized, or have received authorization by the party or parties whom they represent, to enter into the terms and conditions of this Stipulation and [Proposed] Order, which shall be legally binding on them. 9. This Stipulation and [Proposed] Order contains all of the agreements between

Plaintiffs and Federal Defendants and is intended to be and is the final and sole agreement between these parties. The Plaintiffs and Federal Defendants agree that any other prior or contemporaneous representations or understandings not explicitly contained in this Stipulation and [Proposed] Order, whether written or oral, are of no further legal or equitable force or effect. Any subsequent modifications to this Stipulation and [Proposed] Order must be in writing and must be signed and executed by the parties and approved by the Court. SO AGREED: FOR THE PLAINTIFFS: /s/ Peter M.K. Frost PETER M.K. FROST Western Environmental Law Center 1216 Lincoln Street Eugene, Oregon 97401 Telephone: [phone] Facsimile: [phone] e-mail: [e-mail] RONALD J. TENPAS Assistant Attorney General /s/ David B. Glazer DAVID B. GLAZER Natural Resources Section Environment and Natural Resources Div. United States Department of Justice 301 Howard Street, Suite 1050 San Francisco, California 94105 Telephone: [phone] Facsimile: [phone] e-mail: [e-mail]
PARTIES' STIPULATION AND [PROPOSED] ORDER RE: ATTORNEYS' FEES, C-00-1239-EDL

FOR THE FEDERAL DEFENDANTS:

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ATTORNEY ATTESTATION OF CONCURRENCE I hereby attest that I have obtained concurrences in this filing for the signatures indicated by a "conformed" signature ("/s/") within this e-filed document.

Dated: December 5, 2008

/s/DAVID B. GLAZER DAVID B. GLAZER Natural Resources Section Environment and Natural Resources Division United States Department of Justice 301 Howard Street, Suite 1050 San Francisco, California 94105 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail]

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[PROPOSED] ORDER

Pursuant to the Stipulation of the Parties set forth above, IT IS SO ORDERED.

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PARTIES' STIPULATION AND [PROPOSED] ORDER RE: ATTORNEYS' FEES, C-00-1239-EDL

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