Sierra Club et al v. Johnson

Filing 128

ORDER APPROVING STIPULATED SETTLEMENT ON PLAINTIFFS' MOTION FOR ATTORNEY'S FEES. Signed by Judge Alsup on February 1, 2010. (whalc1, COURT STAFF) (Filed on 2/1/2010)

Case3:08-cv-01409-WHA Document126

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LISA GOLLIN EVANS (MA SB # 200730) (Admitted Pro Hac Vice) Earthjustice 21 Ocean Avenue Marblehead, MA 01945 [phone] [e-mail] JAN HASSELMAN (WSB #29107) (Admitted Pro Hac Vice) Earthjustice 705 Second Avenue, Suite 203 Seattle, WA 98104 [phone] [phone] [FAX] [e-mail] Attorneys for Plaintiffs Sierra Club, Great Basin Resource Watch, Amigos Bravos, and Idaho Conservation League GREGORY C. LOARIE (CSB #215859) Earthjustice 426 - 17th Street, 5th Floor Oakland, CA 94612 [phone] [phone] [FAX] [e-mail] Local Counsel for Plaintiffs

THE HONORABLE WILLIAM H. ALSUP

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) Plaintiffs, ) ) v. ) ) STEPHEN JOHNSON, et al., ) Defendants, ) ) and ) SUPERFUND SETTLEMENTS PROJECT, et al., ) ) Defendant-Intervenors. ) SIERRA CLUB, et al., Case No. 3:08-cv-01409-WHA STIPULATED SETTLEMENT ON PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS; [PROPOSED] ORDER

STIPULATED SETTLEMENT ON PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS; [PROPOSED] ORDER (Case No. 3:08-cv-01409-WHA) -1-

Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104 [phone]

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Pursuant to Local Rule 7-12 and 54-6, this Stipulated Settlement is entered into by and between plaintiffs, Sierra Club, Great Basin Resource Watch, Amigos Bravos, and Idaho Conservation League, and the United States of America ("United States"), on behalf of defendants United States Environmental Protection Agency ("EPA") and United States Department of Transportation ("DOT"), to settle plaintiffs' claim for attorneys' fees and costs of litigation in the above-captioned matter. Plaintiffs and defendants, by and through their undersigned counsel, state as follows: WHEREAS, on March 12, 2008, plaintiffs brought suit under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601- 9675, and the Administrative Procedure Act, 5 U.S.C. § 706, alleging that defendants failed to perform certain nondiscretionary duties under CERCLA Section 108(b), 42 U.S.C. § 9608(b); WHEREAS, this Court granted in part and denied in part defendants' motion to dismiss in two orders dated July 23, 2008, and August 8, 2008; WHEREAS, this Court granted in part and denied in part the parties' cross-motions for summary judgment in two separate orders, dated February 25, 2009, and August 5, 2009; WHEREAS, plaintiffs moved for an award of fees and costs pursuant to CERCLA's citizen suit provision, which defendants opposed; WHEREAS, this Court ruled that plaintiffs were entitled to an award of fees and costs commensurate with the level of success achieved by plaintiffs, and directed plaintiffs to resubmit their fee application in accordance with specific limits and procedures; WHEREAS, in lieu of additional litigation on the fee motion, plaintiffs and defendants have reached an agreement as to an appropriate settlement of plaintiffs' motion for fees and costs and agree that settlement of this action in this manner is in the public interest and is an appropriate way to resolve plaintiffs' motion. NOW, THEREFORE, IT IS STIPULATED BY AND BETWEEN THE PARTIES AS FOLLOWS:

STIPULATED SETTLEMENT ON PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS; [PROPOSED] ORDER (Case No. 3:08-cv-01409-WHA) -2-

Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104 [phone]

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1.

Within 60 days of the Count's entry of this Stipulated Settlement, the United

States, on behalf of EPA and DOT, agrees to pay to plaintiffs $114,174.00 in attorneys' fees and $1,184.00 in costs, pursuant to Local Rule 54 and 42 U.S.C. § 9659(f). Payment will be made by electronic funds transfer in accordance with instructions provided to defense counsel by plaintiffs' counsel. 2. Any obligation of the United States to expend funds under this Stipulated

Settlement are subject to the availability of appropriations in accordance with the AntiDeficiency Act, 31 U.S.C. § 1341. This Stipulated Settlement shall not be construed to require the United States to obligate or pay funds in contravention of said Anti-Deficiency Act, 31 U.S.C. § 1341. 3. Plaintiffs agree to accept payment of $115,358.00 in full satisfaction of any and

all claims for attorneys' fees and costs of litigation to which plaintiffs are entitled in the abovecaptioned litigation, through and including the date of this agreement. 4. Plaintiffs agree that receipt of this payment from the United States shall operate as

a release of plaintiffs' claims for attorneys' fees and costs in this matter, through and including the date of this agreement. 5. The parties agree that this Stipulated Settlement was negotiated in good faith and

constitutes a settlement of claims that were vigorously contested, denied, and disputed by the parties. Except as provided in paragraphs 3 and 4 above, by entering into this Stipulated Settlement the parties do not waive any claim or defense. 6. The undersigned representatives of each party certify that they are fully

authorized by the party or parties they represent to agree to the Court's entry of the terms and conditions of this Stipulated Settlement and do hereby agree to the terms herein. 7. The terms of this Stipulated Settlement shall become effective upon entry of an

order by the Court ratifying the Agreement.

STIPULATED SETTLEMENT ON PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS; [PROPOSED] ORDER (Case No. 3:08-cv-01409-WHA) -3-

Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104 [phone]

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It is so stipulated this 29th day of January, 2010.

/s/ Jan Hasselman JAN HASSELMAN Earthjustice 705 Second Avenue, Suite 203 Seattle, WA 98104 [phone] [phone] [FAX] [e-mail] LISA GOLLIN EVANS Earthjustice 21 Ocean Avenue Marblehead, MA 01945 [phone] [e-mail] Attorneys for Plaintiffs Sierra Club, Great Basin Resource Watch, Amigos Bravos, and Idaho Conservation League GREGORY C. LOARIE (CA Bar No. 215859) Earthjustice 426 - 17th Street, 5th Floor Oakland, CA 94612 [phone] [phone] [FAX] [e-mail] Local Counsel for Plaintiffs

STIPULATED SETTLEMENT ON PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS; [PROPOSED] ORDER (Case No. 3:08-cv-01409-WHA) -4-

Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104 [phone]

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: February 1, 2010. * per email authorization

IGNACIA S. MORENO Assistant Attorney General Environment & Natural Resources Division

/s/ Jan Hasselman, for * ROCHELLE L. RUSSELL (CA Bar #244992) Trial Attorney U.S. Department of Justice Environmental Defense Section 301 Howard Street, Suite 1050 San Francisco, CA 94105 [phone] [e-mail] Attorney for Federal Defendants

ORDER Pursuant to the above stipulation, the settlement reached between the parties pertaining to plaintiffs' motion for attorney's fees and costs is hereby APPROVED. Pursuant to settlement, IT IS SO ORDERED. Dated this _____ day of __________________, 2010. IT IS SO ORDERED.
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STIPULATED SETTLEMENT ON PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS; [PROPOSED] ORDER (Case No. 3:08-cv-01409-WHA) -5-

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