Center For Biological Diversity et al v. Fish and Wildlife Services of the United States et al

Filing 113

ORDER APPROVING 112 STIPULATED FEE AGREEMENT. Signed by Judge William Alsup. (whalc2, COURT STAFF) (Filed on 8/13/2019)

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GREGORY C. LOARIE (CA Bar No. 215859)
EARTHJUSTICE
50 California Street, Suite 500
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
ELIZABETH B. FORSYTH (CA Bar No. 288311)
EARTHJUSTICE
800 Wilshire Blvd., Suite 1000
Los Angeles, CA 90017
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
Counsel for Plaintiffs

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JEAN E. WILLIAMS, Deputy Assistant Attorney General
Environment & Natural Resources Division
NICOLE M. SMITH, Trial Attorney (CA Bar 303629)
U.S. Department of Justice
Environment & Natural Resources Division
Wildlife & Marine Resources Section
Ben Franklin Station, P.O. Box 7611
Washington, D.C. 20044-7611
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Attorneys for Defendants
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
CENTER FOR BIOLOGICAL DIVERSITY, et al., )
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Plaintiffs,
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vs.
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U.S. FISH & WILDLIFE SERVICE, et al.,
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Defendants,
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and
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AM. FOREST RESOURCE COUNCIL, et al.,
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Defendant Intervenors.
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Case No.: 3:16-cv-06040-WHA
STIPULATED FEE AGREEMENT
and
[PROPOSED] ORDER

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Stipulated Fee Agreement – No. 3:16-cv-06040-WHA

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This Stipulated Settlement Agreement (“Agreement”) is entered into by and between

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Plaintiffs Center for Biological Diversity, Environmental Protection Information Center, Sierra

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Forest Legacy, and Klamath-Siskiyou Wildlands Center (collectively, “Plaintiffs”), and the United

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States Fish and Wildlife Service (“FWS”), David L. Bernhardt, in his official capacity as Secretary

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of the Interior, and Margaret Everson, in her official capacity as Principal Deputy Director of the

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United States Fish and Wildlife Service (collectively, “Defendants”) who, by and through their

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undersigned counsel, state as follows:

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WHEREAS, on October 18, 2016, Plaintiffs filed the above-captioned case, Center for
Biological Diversity, et al., v. U.S. Fish and Wildlife Service, et al., 3:16-cv-06040-WHA,

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challenging the FWS’s withdrawal of a proposed rule to list a distinct population segment of fisher

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under the Endangered Species Act (“ESA”);

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WHEREAS, on September 21, 2018, ECF No. 80, the Court granted in part and denied in

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part Plaintiffs’ motion for summary judgment, denied Defendants’ cross-motion for summary

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judgment, and entered judgment in favor of Plaintiffs;

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WHEREAS, on November 20, 2018, ECF No. 91, the Court modified its entry of judgment;

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WHEREAS, Defendants filed a notice of appeal to the Ninth Circuit on January 18, 2019;

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WHEREAS, on April 10, 2019, the Court of Appeals granted Defendants’ motion for

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voluntary dismissal of their appeal in this case and returned mandate to this Court;
WHEREAS, on May 17, 2019, ECF No. 105, the Court granted Defendants’ Motion for
Extension of Time to Comply with the Court’s November 20, 2019 Order;
WHEREAS, all appeals having been concluded, Plaintiffs’ motion for attorneys’ fees and
costs is currently due on or before August 30, 2019, see ECF No. 110;
WHEREAS, by letter dated December 7, 2018, Plaintiffs provided Defendants with an offer
to settle their claim for attorneys’ fees and costs;
WHEREAS, the parties to this Agreement believe it is in their interests and in the interest of
judicial economy to avoid litigating a fees motion;

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WEHERAS, the parties to this Agreement have engaged in good faith, and confidential

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settlement negotiations concerning Plaintiffs’ claims for attorneys’ fees and costs and have reached a
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Stipulated Fee Agreement – No. 3:16-cv-06040-WHA

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settlement that they consider to be a just, fair, adequate, and equitable resolution of Plaintiffs’

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request for attorneys’ fees and costs;

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WHEREAS, Plaintiffs and Defendants agree that settlement of Plaintiffs’ motion for

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attorneys’ fees and costs in this manner is in the public interest and is an appropriate way to resolve

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the dispute between them;

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WHEREAS, the parties enter the Agreement below without any admission of fact or law, or
waiver of any claims or defenses, factual or legal, except as specified in the Agreement;
NOW, THEREFORE, Plaintiffs and Defendants hereby stipulate and agree as follows:
1. Defendants agree to pay Plaintiffs’ reasonable attorneys’ fees and costs incurred in

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connection with their complaint and motion for summary judgment, and pursuant to section 11(g)

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of the ESA, 16 U.S.C. § 1540(g), in the amount of $250,000. Plaintiffs agree to accept this amount

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in full satisfaction of any and all claims, demands, rights, and causes of action for attorneys’ fees

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and costs incurred in connection with the above-captioned litigation pursuant to the ESA, 16 U.S.C.

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§ 1540(g), and/or any other statute and/or common law theory, through and including the date of

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this agreement. Plaintiffs agree that receipt of this payment from Defendants shall operate as a

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release of Plaintiffs’ claims for attorneys’ fees and costs in this matter, through and including the

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date of this agreement.

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2. Plaintiffs’ release set forth in paragraph 1 is expressly limited to the above-captioned action

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and does not apply to any other litigation including, but not limited to, any future litigation

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regarding any fisher listing decision. By this Agreement, Defendants do not waive any right to

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contest attorneys’ fees claimed by Plaintiffs, or their counsel, including hourly rates, in any future

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litigation, or continuation of the present actions. Further, this Agreement has no precedential value

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and shall not be used as evidence in any other attorneys’ fees litigation.

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3. Plaintiffs agree to furnish Defendants with the information necessary to effectuate the

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payment specified in paragraph 1 above. Defendants agree to submit all necessary paperwork for

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

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Office, pursuant to 16 U.S.C. § 1540(g)(4), within ten (10) days of the receipt of the necessary

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information from Plaintiffs or the approval of this Agreement by the Court, whichever is later.
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Stipulated Fee Agreement – No. 3:16-cv-06040-WHA

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Plaintiffs’ attorneys agree to send confirmation of the receipt of the payment to counsel for

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Defendants within 14 days of such payment.

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4. Plaintiffs and Defendants agree that this Agreement was negotiated and entered into in good

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faith and that it constitutes a settlement of claims that were vigorously contested, denied, and

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disputed. By entering into this Agreement, neither Plaintiffs nor Defendants waive any claim or

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defense, except as expressly provided herein.

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5. No provision of this Agreement shall be interpreted as, or constitutes, a commitment or

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requirement that Defendants are obligated to spend funds in violation of the Anti-Deficiency Act,

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

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6.

No provision of this Agreement shall be interpreted to or constitute a commitment or

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requirement that the Defendants take action in contravention of the ESA, the APA, or any other law

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or regulation, either substantive or procedural.

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7.

The Agreement contains all of the agreement between Plaintiffs and Defendants, and is

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intended to be the final and sole agreement between them. Plaintiffs, and Defendants agree that any

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prior or contemporaneous representations or understanding not explicitly contained in this written

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Agreement, whether written or oral, are of no further legal or equitable force or effect.

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

(similar in substance to the attached Proposed Order) approving the Agreement.
9. The undersigned representatives of each party certify that they are fully authorized by the

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

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Agreement and do hereby agree to the terms herein.

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Respectfully submitted,

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JEAN E. WILLIAMS
Deputy Assistant Attorney General
SETH M. BARSKY, Chief
MEREDITH L. FLAX, Assistant Chief

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Dated: August 12, 2019

/s/ Nicole M. Smith
NICOLE M. SMITH, Trial Attorney
U.S. Department of Justice
Environment & Natural Resources Division
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Stipulated Fee Agreement – No. 3:16-cv-06040-WHA

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Wildlife & Marine Resources Section
Ben Franklin Station, P.O. Box 7611
Washington, D.C. 20044-7611
Tel: [phone] / Fax: [phone]
Email: [e-mail]

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Attorneys for Federal Defendants

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Dated: August 12, 2019
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/s/ Gregory C. Loarie (as authorized August 12, 2019)
GREGORY C. LOARIE
[e-mail]
EARTHJUSTICE
50 California Street, Suite 500
San Francisco, CA 94111
Tel: [phone] / Fax: [phone]

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Attorneys for Plaintiffs
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[PROPOSED] ORDER
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Pursuant to stipulation, IT IS SO ORDERED that the parties’ stipulation is APPROVED and
ADOPTED.

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Dated: August 13, 2019.
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Hon. William Alsup
United States District Court Judge

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Stipulated Fee Agreement – No. 3:16-cv-06040-WHA