Center for Biological Diversity et al v. Salazar et al

Filing 55

STIPULATION AND ORDER ON ATTORNEYS' FEES AND COSTS. Signed by Judge Joseph C. Spero on 2/7/12. (klhS, COURT STAFF) (Filed on 2/7/2012)

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DEBORAH S. REAMES, State Bar No. 117257
[e-mail]
GEORGE M. TORGUN, State Bar No. 222085
[e-mail]
Earthjustice
426 17th Street, 5th Floor
Oakland, CA 94612
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiffs

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BRENDAN R. CUMMINGS, State Bar. No. 193952
P.O. Box 549
Joshua Tree, CA 92252
Telephone: [phone]
Facsimile: [phone]

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Attorney for Plaintiff Center for Biological Diversity

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IGNACIA S. MORENO, Assistant Attorney General
SETH M. BARSKY, Chief
DANIEL J. POLLAK, Trial Attorney
U.S. Department of Justice
Environment and Natural Resources Division
Wildlife and Marine Resources Section
Ben Franklin Station, P.O. Box 7369
Washington, D.C. 20044-7369
[phone] (tel)
[phone] (fax)

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Attorneys for Federal Defendants

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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CENTER FOR BIOLOGICAL DIVERSITY,
SIERRA FOREST LEGACY, ENVIRONMENTAL)
PROTECTION INFORMATION CENTER, and )
KLAMATH-SISKIYOU WILDLANDS CENTER, )
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Plaintiffs,
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v.
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KEN SALAZAR, in his official capacity as
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Secretary of the Interior, DANIEL ASHE, in his )

Case No: C 10-01501 JCS
STIPULATED SETTLEMENT
AGREEMENT ON ATTORNEYS’ FEES
AND COSTS

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Plaintiffs named Rowan Gould, in his official capacity as Acting Director of the Service, as a
Defendant in this case. On June 30, 2011, Daniel Ashe was confirmed as the Service’s Director.

STIPULATED SETTLEMENT AGREEMENT – C 10-01501-JCS

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official capacity as Director of the United States
Fish and Wildlife Service, and UNITED STATES
FISH & WILDLIFE SERVICE, an agency of the
United States Department of the Interior,

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Defendants.

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This Stipulated Settlement Agreement (“Agreement”) is entered into by Plaintiffs, Center for
Biological Diversity, Sierra Forest Legacy, Environmental Protection Information Center, and
Klamath-Siskiyou Wildlands Center (collectively “Plaintiffs”), and Defendants, the United States
Fish and Wildlife Service (“the Service”), Daniel M. Ashe, Director of the United States Fish and
Wildlife Service, and Ken Salazar, Secretary of the United States Department of the Interior
(collectively “Defendants”).
WHEREAS Plaintiffs filed their Complaint for Declaratory and Injunctive Relief in the
above-captioned case on April 8, 2010. Doc No. 1;
WHEREAS Plaintiffs asserted challenges under the Endangered Species Act (“ESA”) and
Administrative Procedure Act to findings by the Service that listing the west coast population of the
fisher (“fisher”) as an endangered species under the ESA was “warranted but precluded” by other
pending listing proposals, and that expeditious progress was being made on those pending proposals.
See 16 U.S.C. § 1533(b)(3)(B)(iii);
WHEREAS this action was dismissed with prejudice on October 6, 2011, pursuant to the
Parties’ Stipulation of Dismissal and Order. Doc. No. 49. In the Stipulation of Dismissal and Order,
the Plaintiffs and Defendants agreed that, notwithstanding dismissal of this action, the Court retained
jurisdiction to consider any stipulation or motion concerning an award of costs and attorneys’ fees
pursuant to section 11(g)(4) of the ESA, 16 U.S.C. § 1540(g)(4). Doc. 49 at 2;
WHEREAS Defendants and Plaintiffs have now resolved Plaintiffs’ claims for attorneys’
fees and costs in this case;

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Director Ashe therefore is substituted for Mr. Gould pursuant to Federal Rule of Civil Procedure
25(d).

STIPULATED SETTLEMENT AGREEMENT – C 10-01501-JCS

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DEFENDANTS AND PLAINTIFFS ACCORDINGLY STIPULATE AND AGREE AS
FOLLOWS:
1. Defendants agree to settle all of Plaintiffs’ claims for costs and attorneys’ fees in the
above-captioned litigation for a total of forty-eight thousand dollars ($48,000.00) in full and
complete satisfaction of any and all claims, demands, rights, and causes of action, pursuant to

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Section 11(g) of the ESA, 16 U.S.C. § 1540(g), the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
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§ 2412(d), or any other statute and/or common law theory, for attorneys’ fees and costs incurred by
Plaintiffs through and including the date of this Agreement in connection with the claims in the

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above-captioned action. A check will be made payable in that amount to Earthjustice c/o Elizabeth

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Ottinger and transmitted to Earthjustice, California Regional Office, 426 17th Street, 5th Floor,

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Oakland, CA 94612-2820.

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2. Defendants agree to submit all necessary paperwork for the processing of the attorneys’

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fee award to the Department of the Treasury's Judgment Fund Office, pursuant to 16 U.S.C. §

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1540(g)(4), within ten (10) business days of receipt of the court order approving this Agreement.

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Plaintiffs agree to provide all necessary information for the processing of the attorneys’ fee award to

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Defendants in a timely fashion.

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3. Plaintiffs agree to accept payment of $48,000 in full satisfaction of any and all claims for
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attorneys’ fees and costs of litigation to which Plaintiffs are entitled in the above-captioned

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litigation, up to and including the date of this Agreement. Plaintiffs agree that receipt of this payment

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from Defendants shall operate as a release of Plaintiffs’ claims for attorneys’ fees and costs in this

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matter, through and including the date of this Agreement.

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4.

By this agreement, Defendants do not waive any right to contest fees claimed by

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Plaintiffs or Plaintiffs’ counsel, including the hourly rate, in any future litigation.
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STIPULATED SETTLEMENT AGREEMENT – C 10-01501-JCS

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5.

Nothing in this Agreement shall be interpreted as, or shall constitute, a requirement

that the Federal Defendants are obligated to pay any funds exceeding those available, or take any
action in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other appropriations

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law.
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The parties agree that this Agreement was negotiated in good faith and constitutes a

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settlement of claims that were disputed by the parties. By entering into this Agreement no party

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waives any claim or defense, except as expressly stated herein.

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7.

This Agreement does not represent an admission by any party to any fact, claim, or

defense in any issue in this lawsuit. This Agreement has no precedential value and shall not be used

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as evidence of such in any litigation except litigation to enforce the terms of this Agreement.
8. The undersigned representatives of each party certify that they are fully authorized by

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the party or parties they represent to agree to the Court’s entry of the terms and conditions of this

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Stipulation and do hereby agree to the terms herein.

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9.

This terms of this Agreement shall become effective upon entry of an order by the

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Court approving this Agreement.
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10.

The Court shall retain jurisdiction to enforce and oversee compliance with the terms

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and conditions of this Agreement and Court Order. See Kokkonen v. Guardian Life Ins. Co. of

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America, 511 U.S. 375 (1994).

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Respectfully submitted this 6th day of February, 2012.

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/s/ George M. Torgun (with permission)
DEBORAH S. REAMES
GEORGE M. TORGUN
Earthjustice
426 17th Street, 5th Floor
Oakland, CA 94612
Tel.: [phone]

STIPULATED SETTLEMENT AGREEMENT – C 10-01501-JCS

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Fax: [phone]
[e-mail]
[e-mail]

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Attorneys for Plaintiffs

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BRENDAN R. CUMMINGS, State Bar. No. 193952
P.O. Box 549
Joshua Tree, CA 92252
Telephone: [phone]
Facsimile: [phone]

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Attorney for Plaintiff Center for Biological Diversity

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IGNACIA S. MORENO,
Assistant Attorney General
SETH M. BARSKY, Chief

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/s/ Daniel Pollak
DANIEL POLLAK (Cal. Bar # 264285)
Trial Attorney
U.S. Department of Justice
Environment & Natural Resources Division
Wildlife & Marine Resources Section
Ben Franklin Station
P.O. Box 7369
Washington, DC 20044-7369
Phone: [phone]
Fax: [phone]
Email: [e-mail]

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Attorneys for Federal Defendants

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[PROPOSED] ORDER

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S

R NIA

________________________________________
S
THE HONORABLE JOSEPH CC.pero
seph . SPERO
Judge Jo
UNITED STATES MAGISTRATE JUDGE

STIPULATED SETTLEMENT AGREEMENT – C 10-01501-JCS

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DATED: Feb. 7, 2012

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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