United States of America v. Bradley Mining Company et al

Filing 80

STIPULATION AND ORDER to Consolidate Actions. Cases C08-3968 TEH and C08-5501 are Consolidated. Signed by Judge Thelton E. Henderson on 12/05/2011. (tmi, COURT STAFF) (Filed on 12/7/2011)

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IGNACIA S. MORENO
Assistant Attorney General
Environment and Natural Resources Division
U.S. Department of Justice

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ROBERT D. MULLANEY (Cal. Bar No. 116441)
Senior Counsel
Environmental Enforcement Section
U.S. Department of Justice
301 Howard Street, Suite 1050
San Francisco, CA 94105
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]

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Attorneys for Plaintiff United States of America

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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UNITED STATES OF AMERICA,

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Plaintiff,
v.
BRADLEY MINING COMPANY,
et al.,

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Defendants.
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Case No. 3:08-CV-03968 TEH
JOINT MOTION TO CONSOLIDATE
ACTIONS, STIPULATION, AND
[PROPOSED] ORDER

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Plaintiff, the United States of America, and Defendants, Bradley Mining Company and

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Frederick Bradley, Trustee for the Worthen Bradley Family Trust, hereby move, pursuant to

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Rule 42(a) of the Federal Rules of Civil Procedure, to consolidate the above-captioned action

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with the related action filed in this Court by the United States, United States v. Bradley Mining

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Company, Civil Action No. 3:08-CV-05501-TEH. The parties respectfully request that the

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Court consolidate these two actions under the above-captioned case number.

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On August 19, 2008, the United States filed a Complaint against Defendants in the

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above-captioned action under the Comprehensive Environmental Response, Compensation, and

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Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9601 et seq., seeking recovery of unreimbursed

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costs incurred and to be incurred by it, together with interest, for activities undertaken in

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response to the release or threatened release of hazardous substances at the Sulphur Bank

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Mercury Mine Superfund Site in Lake County, California (“Sulphur Bank case”). On September

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26, 2008, the United States filed another action under Section 107 of CERCLA, 42 U.S.C.

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§ 9607, against Bradley Mining Company in the District Court of Idaho for recovery of costs

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incurred by the United States in connection with the Stibnite Mine Site in Valley County, Idaho

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(“Stibnite Mine case”). Pursuant to the parties’ stipulation, the District of Idaho ordered that the

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venue be changed to the Northern District of California. In response to the parties’ stipulation

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and the United States’ motion in the Sulphur Bank case, this Court determined that the Sulphur

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Bank and Stibnite Mine cases were related on December 23, 2008. Case No. 3:08-CV-03968

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TEH, Court Docket No. (“DN”) 31.

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On December 2, 2011, the parties filed a Joint Notice of Settlement to inform the Court

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that the parties had reached final agreement on all of the terms of a Consent Decree, which, if

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entered, would fully resolve all of the claims in this matter and in the related Stibnite Mine case,

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United States v. Bradley Mining Company, Case No. 3:08-CV-05501 (TEH). DN 77. Counsel

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for the Elem Tribe, which is not yet a party to this action but is a party to the Consent Decree,

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has also represented that the terms of the Consent Decree are acceptable to the Elem Tribe. Id. at

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2. If approval of the Consent Decree is obtained from all parties, the United States will lodge the

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Consent Decree with the Court and submit the Consent Decree for public comment in
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Joint Motion to Consolidate Actions - Case No. 3-08-CV-03968 TEH

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accordance with 28 C.F.R. § 50.7. Id. The Court granted the parties’ request to stay all

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proceedings in this matter for 75 days to allow for a final settlement of this matter. DN 78 at 3.

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Consolidation is appropriate because the Sulphur Bank and the Stibnite Mine cases

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involve common parties and common questions of law and fact, and are expected to be resolved

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concurrently by the same Consent Decree. See Fed. R. Civ. P. 42(a). Furthermore, in addition

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to simplifying the public comment procedure by the lodging of a single decree, the parties agree

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that consolidation into one action will facilitate entry of the decree and any potential amendment,

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enforcement, or other future Court action related to the Consent Decree. Accordingly, pursuant

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to Rule 42(a) of the Federal Rules of Civil Procedure, the parties respectfully request that the

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Court consolidate these two actions under the above-captioned case number. A proposed Order

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is submitted below.

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IT IS SO STIPULATED.

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I attest that concurrence in the filing of this Joint Notice of Settlement has been obtained

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from Mr. Jon K. Wactor, the attorney for Defendants Bradley Mining Company and Frederick

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Bradley, Trustee for the Worthen Bradley Family Trust.

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Dated: December 5, 2011

/s/ Robert D. Mullaney

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Robert D. Mullaney
Environmental Enforcement Section
U.S. Department of Justice
301 Howard Street, Suite 1050
San Francisco, California 94105
Tel: [phone]
Fax: [phone]
Attorneys for Plaintiff United States of
America

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Dated: December 5, 2011

/s/ Jon K. Wactor

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Jon K. Wactor
Wactor & Wick LLP
180 Grand Avenue, Suite 950
Oakland, California 94612
Tel: [phone]
Fax: [phone]
Attorneys for Defendants Bradley Mining
Company and Frederick Bradley, as Trustee of the
Worthen Bradley Family Trust

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Joint Motion to Consolidate Actions - Case No. 3-08-CV-03968 TEH

[PROPOSED] ORDER

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The Court, having read and considered the Joint Motion to Consolidate Actions and good

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cause appearing therefor,
IT IS HEREBY ORDERED that:

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1.

The Joint Motion to Consolidate Actions is GRANTED;

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2.

Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, this action is consolidated

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with the related Stibnite Mine case, United States v. Bradley Mining Company, Civil Action

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No. 3:08-CV-05501-TEH, and this action (3:08-CV-03968) shall be designated as the main case.

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Henceforth, these consolidated cases shall be considered as one case, and all pleadings shall be

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filed in the main case and captioned with case number 3:08-CV-03968.

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3.

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No. 3:08-CV-05501-TEH, shall be statistically closed.

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4.

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plaintiffs/defendants, as applicable.

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IT IS SO ORDERED.

The related Stibnite Mine case, United States v. Bradley Mining Company, Civil Action

Parties in the related action shall be added to the main case as consolidated

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THELTON E. HENDERSON, JUDGE
UNITED STATES DISTRICT COURT

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_________________________________

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12/05/2011

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Dated:

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Joint Motion to Consolidate Actions - Case No. 3-08-CV-03968 TEH