Natural Resources Defense Council, Inc. et al v. Gutierrez et al

Filing 123

STIPULATION AND ORDER AS MODIFIED re 122 Stipulation, filed by Donald C. Winter, Carlos M. Gutierrez, United States Department of the Navy, Mike Mullen, Conrad C. Lautenbacher, Jr., National Marine Fisheries Service, William Hogarth. Signed by Magistrate Judge Elizabeth D. Laporte on November 6, 2008. (edllc2, COURT STAFF) (Filed on 11/6/2008)

RONALD J. TENPAS Assistant Attorney General Environment and Natural Resources Division UNITED STATES DEPARTMENT OF JUSTICE JEAN E. WILLIAMS, Chief KRISTEN L. GUSTAFSON, Senior Trial Attorney Wildlife and Marine Resources Section GUILLERMO A. MONTERO, Trial Attorney Natural Resources Section Environment & Natural Resources Division UNITED STATES DEPARTMENT OF JUSTICE Benjamin Franklin Station - P.O. Box 7369/ P.O. Box 663 Washington, D.C. 20044 [phone] (tel.) / [phone] (tel.) [phone] (fax)/ [phone] (fax) [e-mail] [e-mail] Counsel for Federal Defendants UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.,

) ) Civ. Action No. 07-4771-EDL ) Plaintiffs, ) STIPULATED ENLARGEMENT OF ) BRIEFING SCHEDULE AND CONTINUANCE v. ) OF HEARING DATE FOR PLAINTIFFS' ) MOTION FOR FEES AND COSTS; CARLOS GUTIERREZ, SECRETARY ) OF THE UNITED STATES ) [PROPOSED] ORDER DEPARTMENT OF COMMERCE, et al. ) ) Defendants. ) ) Judge: Hon. Elizabeth D. Laporte ) Ctrm: E ) Hearing Date: December 9, 2008 ) Time: 9 a.m. ____________________________________)

Stip. and [Proposed] Order Continuing Hearing Re: Mot. For Fees & Costs, NRDC v. Gutierrez, Case No. 07-4771-EDL

WHEREAS, on August 8, 2008, Defendants United States Navy ("Navy") and National Marine Fisheries Service ("NMFS") and Plaintiffs the Natural Resources Defense Council, Inc., et al. filed a Stipulated Settlement Agreement ("Stipulation") which provided for the dismissal with prejudice of the above-captioned lawsuit; WHEREAS, the Court entered an Order approving the Stipulation on August 12, 2008 ("Order"); WHEREAS, the Stipulation and Order provided that Defendants would pay Plaintiffs a reasonable amount for their costs of litigation, including reasonable attorneys' fees, while preserving the right to contest specific fees or expenses, including hourly rates, and further provided that the Parties would employ good faith efforts to reach an expeditious negotiated resolution of the amount of such costs and fees; WHEREAS, the Stipulation and Order provided that the Court would retain jurisdiction of the case for purposes of resolving attorneys' fees and cost reimbursement issues under the Equal Access to Justice Act ("EAJA") in the event the Parties are not able to reach a negotiated resolution thereof; WHEREAS, the Stipulation and Order further provided that Plaintiffs are to have up to 120 days following the filing of an initial EAJA application to file any supplementary or modified applications, related pleadings to advance the adjudication of the application, and/or supporting materials they deem appropriate; and Defendants may not argue that any supplementary or modified applications, related pleadings and/or supporting materials filed within the 120 days following the filing of an initial EAJA application are untimely, should have been filed with the initial EAJA application or, except as provided in the Stipulation, are otherwise out of order; WHEREAS, Plaintiffs filed their Motion for Fees and Costs ("Motion") on September 26, 2008; WHEREAS, by Order dated October 2, 2008, the Court set a briefing and hearing schedule for Plaintiffs' Motion whereby Defendants' opposition shall be served and filed no later than

Stip. and [Proposed] Order Continuing Hearing Re: Mot. For Fees & Costs, NRDC v. Gutierrez, Case No. 07-4771-EDL

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November 18, 2008; Plaintiffs' reply shall be served and filed no later than November 25, 2008; and a hearing on the Motion shall be held on December 9, 2008; WHEREAS, although the Parties are in the process of negotiating a resolution to Plaintiffs' Motion, Defendants' resources have been diverted in part by concurrent settlement negotiations in a separate case involving the Navy's use of Mid-Frequency Active Sonar, Natural Resources Defense Council, Inc. v. Winter, Case No. 05-CV-7513-FMC (C.D. Cal.); WHEREAS, a continuance of the hearing date and an enlargement of the briefing dates in the above-captioned case will allow the Parties to continue their efforts to reach an expeditious negotiated resolution of Plaintiffs' Motion without need for further litigation;

SUBJECT TO THE APPROVAL OF THE COURT, THE PARTIES HEREBY STIPULATE AS FOLLOWS: 1. 2. 3. 2008 Defendants shall file an opposition to the Motion no later than December 18, 2009; Plaintiffs shall file a reply in support of their Motion no later than January 6, 2009; at 2:00 p.m. The hearing for Plaintiffs' Motion shall be continued until January 20, 2009, or a date

thereafter at the Court's convenience. 4. Nothing herein shall prejudice or modify Plaintiffs' rights to file, within one-hundred

twenty (120) days of September 26, 2008, any supplementary or modified EAJA applications, related pleadings to advance the adjudication of the application, and/or supporting materials they deem appropriate, provided that Plaintiffs give Defendants written notice of their intent to exercise such rights at least fourteen (14) days in advance of December 18, 2008, in which event all dates set forth in the above stipulated schedule shall be deemed tolled for the number of days between the date of such notice and the date on which Plaintiffs submit their supplementary filing to the Court.

Stip. and [Proposed] Order Continuing Hearing Re: Mot. For Fees & Costs, NRDC v. Gutierrez, Case No. 07-4771-EDL

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Dated: November 5, 2008

RONALD J. TENPAS Acting Assistant Attorney General United States Department of Justice Environment & Natural Resources Division JEAN E. WILLIAMS, Chief KRISTEN L. GUSTAFSON, Senior Trial Attorney Wildlife & Marine Resources Section GUILLERMO A. MONTERO, Trial Attorney Natural Resources Section United States Department of Justice Environment & Natural Resources Division Ben Franklin Station, P.O. Box 663 Washington, D.C. 20044-663 Tel. [phone]/ Tel. [phone] Fax [phone]/ Fax [phone] [e-mail] [e-mail]

By:

/s/ Guillermo A. Montero Guillermo A. Montero Counsel for Federal Defendants

Dated: November 5, 2008

MORRISON & FOERSTER LLP ROBERT L. FALK ROBIN S. STAFFORD NATURAL RESOURCES DEFENSE COUNCIL, INC. JOEL R. REYNOLDS By: /s/ Robin S. Stafford Robin S. Stafford Attorneys for Plaintiffs NATURAL RESOURCES DEFENSE COUNCIL, INC.; INTERNATIONAL FUND FOR ANIMAL WELFARE; THE HUMANE SOCIETY OF THE UNITED STATES; CETACEAN SOCIETY INTERNATIONAL; LEAGUE FOR COASTAL PROTECTION; OCEAN FUTURES SOCIETY; JEAN-MICHEL COUSTEAU

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PURSUANT TO STIPULATION, IT IS SO ORDERED.
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November 6 Dated: __________________, 2008.

IT IS S By: ____________________________________ DIFIED AS MO Honorable Elizabeth D. Laporte United States Magistrate aJudge porte eth D. L
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