United States of America v. Bradley Mining Company

Filing 60

STIPULATION AND ORDER to Consolidate Actions. Cases C08-3968 TEH and C08-5501 TEH 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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LOREN REMSBERG
SEAN CARMAN
Trial Attorneys
Environmental Enforcement Section
U.S. Department of Justice
601 D Street NW
Washington, DC 20004
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,
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v.
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BRADLEY MINING COMPANY,
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Defendant.
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Case No. 3:08-CV-05501 TEH
JOINT MOTION TO CONSOLIDATE
ACTIONS, STIPULATION, AND
[PROPOSED] ORDER

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Plaintiff, the United States of America, and Defendant, Bradley Mining Company, hereby

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

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

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Bradley Mining Company, et al., Civil Action No. 3:08-CV-03968-TEH. The parties

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respectfully request that the Court consolidate these two actions under case number 3:08-CV-

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03968-TEH.

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

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Mining Company and Frederick Bradley, Trustee for the Worthen Bradley Family Trust, in case

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number 3:08-CV-03968-TEH under the Comprehensive Environmental Response,

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

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recovery of unreimbursed costs incurred and to be incurred by it, together with interest, for

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activities undertaken in response to the release or threatened release of hazardous substances at

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the Sulphur Bank Mercury Mine Superfund Site in Lake County, California (“Sulphur Bank

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case”). On September 26, 2008, the United States filed another action under Section 107 of

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CERCLA, 42 U.S.C. § 9607, against Bradley Mining Company in the District Court of Idaho for

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recovery of costs incurred by the United States in connection with the Stibnite Mine Site in

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

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Idaho ordered that the venue be changed to the Northern District of California. In response to

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the parties’ stipulation and the United States’ motion in the Sulphur Bank case, this Court

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determined that the Sulphur Bank and Stibnite Mine cases were related on December 23, 2008.

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Case No. 3:08-CV-03968-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 Sulphur Bank case,

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United States v. Bradley Mining Company, et al., Case No. 3:08-CV-03968-TEH. DN 57.

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

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Decree, has also represented that the terms of the Consent Decree are acceptable to the Elem

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Tribe. Id. at 2. If approval of the Consent Decree is obtained from all parties, the United States
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Joint Motion to Consolidate Actions - Case No. 3-08-CV-05501 TEH

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will lodge the Consent Decree with the Court and submit the Consent Decree for public

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

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all proceedings in this matter for 75 days to allow for a final settlement of this matter. DN 58 at

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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 Sulphur Bank case number, 3:08-CV-03968 TEH.

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A proposed Order 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 Defendant Bradley Mining Company.

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Dated: December 5, 2011

/s/ Loren Remsberg

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Loren Remsberg
Sean Carman
Environmental Enforcement Section
U.S. Department of Justice
601 D Street NW
Washington, DC 20004
Tel: [phone]
Fax: [phone]
Attorneys for Plaintiff United States of
America

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Dated: December 5, 2011

/s/ Jon K. Wactor
Jon K. Wactor
Wactor & Wick LLP
180 Grand Avenue, Suite 950
Oakland, California 94612
Tel: [phone]
Fax: [phone]

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Joint Motion to Consolidate Actions - Case No. 3-08-CV-05501 TEH

Attorneys for Defendants Bradley Mining
Company and Frederick Bradley, as Trustee of the
Worthen Bradley Family Trust

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[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,
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IT IS HEREBY ORDERED that:
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1.

The Joint Motion to Consolidate Actions is GRANTED;

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

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with the related Sulphur Bank case, United States v. Bradley Mining Company, et al., Civil
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Action No. 3:08-CV-03968-TEH, and that action (3:08-CV-03968) shall be designated as the
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main case. Henceforth, these consolidated cases shall be considered as one case, and all
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pleadings shall be filed in the main case and captioned with case number 3:08-CV-03968.
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3.

This Stibnite Mine case, United States v. Bradley Mining Company, Civil Action No.

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3:08-CV-05501-TEH, shall be statistically closed.
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4.

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

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plaintiffs/defendants, as applicable.
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THELTON E. HENDERSON, JUDGE
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UNITED STATES E. H
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_________________________________
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Dated: 12/05/2011

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UNIT
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IT IS SO ORDERED.
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Joint Motion to Consolidate Actions - Case No. 3-08-CV-05501 TEH