Environmental Protection Information Center v. Ayers et al

Filing 53

ORDER APPROVING STIPULATION FOR DISMISSAL AND TO RESOLVE ATTORNEYS' FEES AND COSTS. Signed by Judge Maxine M. Chesney on July 27, 2015. (mmclc1, COURT STAFF) (Filed on 7/27/2015)

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KAMALA D. HARRIS
Attorney General of California
GAVIN G. MCCABE
Supervising Deputy Attorney General
DANIEL S. HARRIS (SBN 157433)
MARC N. MELNICK (SBN 168187)
Deputy Attorneys General
1515 Clay Street, 20th Floor
P.O. Box 70550
Oakland, CA 94612-0550
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendants Charlton H. Bonham,
Stafford Lehr, and Neil Manji

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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ENVIRONMENTAL PROTECTION
INFORMATION CENTER,

Case No. C-13-00656-MMC-NJV
ORDER APPROVING

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Plaintiff,
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STIPULATION AND [PROPOSED]
ORDER FOR DISMISSAL AND TO
RESOLVE ATTORNEYS’ FEES AND
COSTS

v.
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JERRY AYERS; STAFFORD LEHR;
CHARLTON H. BONHAM, NEIL MANJI,
PAT OVERTON; ROWAN GOULD; JEFF
UNDERWOOD; UNITED STATES FISH
AND WILDLIFE SERVICE,

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Courtroom:
Judge:
Trial Date:
Action Filed:

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Honorable M.M. Chesney
None Set
February 13, 2013

Defendants.

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Plaintiff Environmental Protection Information Center, Defendants Stafford Lehr, Charlton

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H. Bonham, and Neil Manji (“State Defendants”), and Defendants Daniel Ashe, Jeff Underwood,

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and U.S. Fish and Wildlife Service (“Federal Defendants”) hereby stipulate to and respectfully

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request that the Court dismiss this case and resolve Plaintiff’s claim for costs and attorneys’ fees,

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as set forth below.
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STIPULATION & [PROP.] ORDER FOR DISMISSAL & TO RESOLVE FEES & COSTS (No. C-13-00656-MMC-NJV)

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The parties had previously stipulated to stay this case with certain conditions. A Hatchery

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and Genetic Management Plan (“HGMP”) to govern operations at the Mad River Hatchery has

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been submitted to the National Marine Fisheries Service (“NMFS”), and enough progress has

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been made toward approval of that plan that the parties are prepared to resolve this case. Counsel

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for the parties have also engaged in good faith and confidential settlement negotiations

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concerning Plaintiff’s claims for attorneys’ fees, costs, and other expenses, and have reached a

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settlement of those claims.

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Therefore, Plaintiff, State Defendants, and Federal Defendants hereby stipulate and agree as

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follows:

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1.

The parties request that this case be dismissed with prejudice, with the Court retaining

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jurisdiction to ensure compliance with paragraph 2 below until NMFS approves an

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HGMP for the Mad River Hatchery.

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2.

Prior to NMFS’s approval of an HGMP for the Mad River Hatchery:
a.

State Defendants (and employees at the California Department of Fish and

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Wildlife) may collect, trap, and use natural-origin (Endangered Species Act-

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listed) steelhead trout from the Mad River for use as broodstock at the Mad

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River Hatchery, provided that:

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i.

For each spawning pair of steelhead trout in that time period, the Mad

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River Hatchery will use at least one natural-origin steelhead;

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ii.

The goal for the broodstock collected in a given year in that time period is

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to produce 150,000 steelhead yearlings for release in the following year,

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but if not enough natural-origin steelhead are available for use in the

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broodstock, under the terms of this stipulation, then only offspring of at

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least one natural-origin steelhead will be released in that time period;

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iii.

If more natural-origin steelhead are available at the Mad River Hatchery,

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the hatchery will try to match natural-origin steelhead with natural-origin

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steelhead;

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b.

State Defendants (and employees at the California Department of Fish and
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STIPULATION & [PROP.] ORDER FOR DISMISSAL & TO RESOLVE FEES & COSTS (No. C-13-00656-MMC-NJV)

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Wildlife) may release steelhead trout into the main stem of the Mad River, at

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either the Mad River Hatchery or at the boat ramp located at the Mad River

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Estuary (at Mad River Beach County Park);

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c.

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Hatchery consistent with this stipulation.
2.

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The U.S. Fish and Wildlife Service may fund operations at the Mad River

The parties need not submit a joint case management conference statement as directed
in the Court’s December 9, 2014 order.

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As to attorneys’ fees, costs, and other expenses:
a.

State Defendants and Federal Defendants shall pay Plaintiff’s reasonable

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attorneys’ fees and costs, pursuant to Section 11(g) of the Endangered Species

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Act, 16 U.S.C. § 1540(g), in the amount of $65,000.00, payable to the IOLTA

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client trust account of the Western Environmental Law Center. Specifically,

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Federal Defendants will pay $32,500.00 and State Defendants will pay

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$32,500.00.

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b.

Plaintiff agrees to provide written notice to Federal Defendants of the form in

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which it elects to receive the funds, including all information necessary for

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Defendants to process the disbursement (including the payee’s tax identification

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number), as soon as possible upon an Order of the Court approving this

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Stipulation.

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c.

Federal Defendants agree to submit all necessary paperwork for the processing

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of the attorneys’ fees award to the Department of the Treasury’s Judgment

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Fund Office, pursuant to 16 U.S.C. § 1540(g), within ten (10) business days of

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Plaintiff providing the information in paragraph 3(b) or entry of a Court order

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approving this stipulation, whichever is later.

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d.

Plaintiff agrees to provide State Defendants with a completed state standard

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form 204 (payee data record) as soon as possible upon the signing of this

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Stipulation regarding settlement.

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e.

This Stipulation resolves all claims for attorneys’ fees, costs, and/or other
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STIPULATION & [PROP.] ORDER FOR DISMISSAL & TO RESOLVE FEES & COSTS (No. C-13-00656-MMC-NJV)

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expenses related to this action.

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f.

Plaintiffs agrees to accept payment of $65,000.00 in full satisfaction of any and

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all claims for attorneys’ fees, costs, and other expenses of litigation to which

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Plaintiff is entitled in the above-captioned litigation.

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g.

Plaintiff agrees that receipt of this amount from State and Federal Defendants

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shall operate as a release of Plaintiff’s claims for attorneys’ fees, costs, and

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other expenses in this matter.

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h.

Nothing in this agreement shall be interpreted as, or shall constitute, a

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requirement that Federal Defendants are obligated to pay any funds exceeding

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those available, or take any action in contravention of the Anti-Deficiency Act,

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31 U.S.C. § 1341, or any other appropriations law.

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i.

By this agreement, State Defendants and Federal Defendants do not waive any

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right to contest fees claimed by Plaintiff or Plaintiff’s counsel, including the

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hourly rates, in any future litigation, or continuation of the present action.

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Further, this stipulation as to attorneys’ fees, costs, and other expenses has no

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precedential value and shall not be used as evidence in any other attorneys’ fees

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litigation.

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j.

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The parties agree that this Stipulation was negotiated in good faith. By entering
into this agreement the parties do not waive any claim or defense.

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k.

The undersigned representatives of each party certify that they are fully

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authorized by the party or parties they represent to agree to the Court’s entry of

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the terms and conditions of this agreement and do hereby agree to the terms

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herein.

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STIPULATION & [PROP.] ORDER FOR DISMISSAL & TO RESOLVE FEES & COSTS (No. C-13-00656-MMC-NJV)

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l.

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The terms of this agreement shall become effective upon entry of this
stipulation as an Order by the Court.

Dated: July 24, 2015

Respectfully submitted,

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/s/ Peter M.K. Frost (as authorized)

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PETER M.K. FROST, pro hac vice
SHARON E. DUGGAN
Attorneys for Plaintiff

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KAMALA D. HARRIS
Attorney General of California
GAVIN G. MCCABE
Supervising Deputy Attorney General

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/s/ Marc N. Melnick

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MARC N. MELNICK
Deputy Attorney General
Attorneys for State Defendants

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JOHN C. CRUDEN
Assistant Attorney General
U.S. Department of Justice
Environment & Natural Resources Division
S. JAY GOVINDAN, Assistant Chief

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/s/ Trent S.W. Crable (as authorized)

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TRENT S.W. CRABLE
Trial Attorney
Wildlife and Marine Resources Section

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ROMNEY S. PHILPOTT
Trial Attorney
Natural Resources Section

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Attorneys for Federal Defendants

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Pursuant to Civil Local Rule 5.1(i)(3), I attest that Peter M.K. Frost and Trent S.W. Crable

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have concurred in the filing of this document and authorized me to submit their electronic

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signatures.

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/s/ Marc N. Melnick

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MARC N. MELNICK
Deputy Attorney General
Attorneys for State Defendants

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5.
STIPULATION & [PROP.] ORDER FOR DISMISSAL & TO RESOLVE FEES & COSTS (No. C-13-00656-MMC-NJV)

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Pursuant to the stipulation of the parties, IT IS SO ORDERED. This case is DISMISSED.

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Dated: July 27 2015
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_______________________________
MAXINE M. CHESNEY
United States District Judge

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OK2013205367
dismissal and fees stip final.doc

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STIPULATION & [PROP.] ORDER FOR DISMISSAL & TO RESOLVE FEES & COSTS (No. C-13-00656-MMC-NJV)