California Native Plant Society, Defenders of Wildlife et al v. United States Environmental Protection Agency et al

Filing 321


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1 2 3 4 5 6 7 8 9 Deborah A. Sivas (Calif. Bar No. 135446) Leah Russin (Calif. Bar No. 225336) ENVIRONMENTAL LAW CLINIC Mills Legal Clinic at Stanford Law School Crown Quadrangle 559 Nathan Abbott Way Stanford, California 94305 Telephone: (650) 725-8571 Facsimile: (650) 723-4426 Neil Levine (Calif. Bar No. 163557) LAW OFFICE 4438 Tennyson St. Denver, Colorado 80212 Telephone: (303)-455-0604 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN OF CALIFORNIA 11 12 13 CALIFORNIA NATIVE PLANT SOCIETY, DEFENDERS OF WILDLIFE, and BUTTE ENVIRONMENTAL COUNCIL, 14 15 16 17 18 19 Case No. C 06-03604 PJH Hon. Phyllis J. Hamilton Plaintiffs, STIPULATION AND [PROPOSED] ORDER TO DISSOLVE PRELIMINARY INJUNCTION, DISMISS WITH PREJUDICE UNDER FED. R. CIV. P 41(a)(1)(A)(ii), EXTEND FILING DEADLINE ON FEE APPLICATION, AND SET BRIEFING SCHEDULE FOR PLAINTIFFS' APPLICATION FOR ATTORNEY FEES AND COSTS UNDER THE EQUAL ACCESS TO JUSTICE ACT v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, UNITED STATES FISH AND WILDLIFE SERVICE, and UNITED STATES ARMY CORPS OF ENGINEERS, Defendants. 20 21 22 SUNRIDGE-ANATOLIA, LLC, et al., Defendant-Intervenors. 23 24 Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii) and Local Rules 7-1 & 7-12, 25 all parties stipulate and respectfully request that the Court dissolve the July 10, 2007 26 preliminary injunction, as modified, in all respects, extend the deadline for filing a fee 27 application and set a briefing schedule, and dismiss this matter with prejudice. 28 1 1 2 RECITALS WHEREAS, the U.S. Army Corps of Engineers (Corps), pursuant to the Clean Water 3 Act Section 404(b), has issued Permit No. SPK-1994-00365 to ARI 208 LLC, Permit No. SPK- 4 2004-00458 to Arista Del Sol, L.P., Permit No. SPK-1994-00210 to Sunridge-Anatolia LLC, 5 Permit No. SPK-1997-00006 to Comerica Bank, Permit No. SPK-2002-00568 to Douglas 105, 6 and Permit No. SPK-2001-00230 to Cresleigh Homes (hereafter the “Permits”), and, pursuant 7 to the National Environmental Policy Act, completed the Sunridge Environmental Impact 8 Statement in 2010, issued a Record of Decision in 2011, and completed site-specific 9 Supplemental Environmental Assessments in September 2011 and January and February 2013. 10 STIPULATION 11 (1) Intervenor-Defendants Arista Del Sol, L.P., Sunridge-Anatolia LLC, Comerica 12 Bank, Douglas 105, ARI 208 LLC and Cresleigh Homes (or successors in interest) agree to 13 waive their rights to administratively appeal or file a lawsuit challenging the Permits. 14 (2) Provided the projects, as approved by the Permits, are not modified or changed with 15 respect to project configuration and mitigation requirements, Plaintiffs agree not to challenge 16 the Permits or any work done in compliance with the Permits and acknowledge that the 17 Sunridge Environmental Impact Statement and site-specific Supplemental Environmental 18 Assessments referenced above are sufficient for these projects. 19 (3) Plaintiffs agree to dismiss all claims asserted in this action with prejudice as to all 20 Defendants and Intervenor-Defendants; notwithstanding this dismissal, however, nothing 21 precludes Plaintiffs from bringing a new lawsuit against any project, as approved by the 22 Permits, that is modified or changed with respect to project configuration or mitigation 23 requirements based on any agency approval document, agency action, and any legal theory. 24 Any such challenge shall be limited to the project that is modified or changed. Nothing in this 25 stipulation precludes Defendants and Intervenor-Defendants from raising any legal defense to a 26 claim that Plaintiffs may assert in a separate legal action. 27 (4) Plaintiffs and Federal Defendants respectfully request that the Court retain 28 jurisdiction to resolve Plaintiffs’ claim for attorney fees and costs under the Equal Access to 2 1 Justice Act (EAJA), 28 U.S.C. § 2412. Intervenor-Defendants do not oppose the Court 2 retaining jurisdiction for this purpose. 3 (5) Plaintiffs request that the Court extend the deadline for filing motions for attorney 4 fees and costs set forth in Local Rules 54-1 and 54-5 until no later than 30 days after the Court 5 issues an Order dismissing this case. Plaintiffs and Federal Defendants met in person with 6 Magistrate Judge Corley on March 22, 2013, after exchanging settlement conference 7 statements, to attempt to resolve Plaintiffs’ EAJA claim. No settlement was reached. If 8 Plaintiffs and Federal Defendants are unable to resolve Plaintiffs’ claim for attorney fees and 9 costs within 30 days of dismissal, Plaintiffs will file an Application for fees and costs, pursuant 10 to EAJA. To allow time for settlement discussions to resume if appropriate, Plaintiffs and 11 Federal Defendants stipulate to the following proposed briefing schedule: 12 13 Plaintiffs' opening brief: June 21, 2013 14 Federal Defendants' opposition brief: August 23, 2013 15 Plaintiffs' reply brief: September 20, 2013 16 Hearing date: at the Court's convenience in October or thereafter 17 18 Accordingly, the parties request that the Court enter an order approving this Stipulation, 19 dissolving the July 10, 2007 injunction, as amended, extending the deadline for Plaintiffs’ fee 20 application and setting the proposed briefing schedule, and dismissing this case with prejudice. 21 22 Respectfully submitted, 23 Dated: April 3, 2013 24 25 ENVIRONMENTAL LAW CLINIC Mills Legal Clinic at Stanford Law School 26 27 28 /s/ Leah Russin Leah Russin Attorneys for Plaintiffs 3 1 2 UNITED STATES DEPARTMENT OF JUSTICE 3 /s/ Carol Draper Carol Draper Attorneys for Federal Defendants 4 5 6 7 8 LAW OFFICES OF GREGORY THATCH /s/Larry Larsen Larry Larsen Attorneys for Defendant Intervenor Montelena-Douglas, LLC 9 10 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 11 /s/Robert J. Uram Robert J. Uram Attorneys for Defendant-Intervenors Arista Del Sol, L.P., Sunridge-Anatolia LLC, Lennar Communities, Inc., Comerica Bank, Douglas 105 LLC and Sunridge Park, LLC 12 13 14 15 16 17 18 19 20 21 22 COX, CASTLE & NICHOLSON LLP /s/ Andrew Sabey Andrew Sabey Attorneys for Defendant Intervenor Cresleigh Homes MILLER STARR REGALIA /s/ Arthur Coon Arthur Coon Attorneys for Defendant Intervenor ARI 208, LLC 23 24 25 26 27 28 4 1 E-filing Attestation 2 Pursuant to ECF General Order 45(X), I attest that Robert Uram, Arthur Coon, Andrew Sabey 3 Carol Draper, and Larry Larsen have concurred in the filing of this document. 4 /s/ Leah Russin Leah Russin 5 6 S DISTRICT TE C TA Hon. Phyllis J. Hamilton United States DistrictSO ORDERED Judge IS hylli Judge P 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 A H ER FO RT 12 ilton s J. Ham NO 11 R NIA IT LI 10 RT U O 9 Dated: 4/8/13 S 8 PURSUANT TO STIPULATION, IT IS SO ORDERED. UNIT ED 7 N F D IS T IC T O R C

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