The Otter Project; Environmental Defense Center v. Salazar et al

Filing 70

ORDER by Judge Lucy H. Koh granting 69 Stipulation (lhklc4, COURT STAFF) (Filed on 11/14/2012)

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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 JOSE DIVISION

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THE OTTER PROJECT and
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ENVIRONMENTAL DEFENSE CENTER, )
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Plaintiffs,
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v.
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KEN SALAZAR, Secretary of the United
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States Department of the Interior, DANIEL )
ASHE, Director of the U.S. Fish & Wildlife )
Service, UNITED STATES
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DEPARTMENT OF THE INTERIOR,
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UNITED STATES FISH & WILDLIFE
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SERVICE,
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Defendants,
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CALIFORNIA SEA URCHIN
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COMMISSION, PETER HALMAY,
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HARRY LIQUORNIK, CALIFORNIA
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ABALONE ASSOCIATION, SONOMA
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COUNTY ABALONE NETWORK,
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Intervenor-Defendants.
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No. C 09-4610 JW
STIPULATION TO AMEND
STIPULATED SETTLEMENT
AGREEMENT AND [PROPOSED]
ORDER

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Stipulation to Amend Settlement Agreement1

No. C. 09-4610 JW

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Pursuant to Local Rule 7-12, this Stipulation is entered into by and between Plaintiffs,

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The Otter Project and Environmental Defense Center, Defendants, Ken Salazar, in his official

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capacity as Secretary of the United States Department of the Interior; Daniel Ashe, in his official

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capacity as Director of the United States Fish and Wildlife Service (“Service”); the United States

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Department of the Interior; and the Service (collectively, “Federal Defendants”), and Intervenor-

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Defendants, California Sea Urchin Commission; Peter Halmay; Harry Liquornik; California

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Abalone Association; Sonoma County; and County Abalone Network. By and through their

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undersigned counsel, the parties state as follows:

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WHEREAS, on December 23, 2009, Plaintiffs filed a First Amended Complaint for

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Declaratory and Injunctive Relief in the above-captioned case, alleging that the Service

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unreasonably delayed a decision on whether the southern sea otter translocation program has

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failed according to the five failure criteria at 50 C.F.R. § 1784(d)(8), in violation of the

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Administrative Procedure Act, 5 U.S.C. § 555(b);

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WHEREAS, on November 22, 2010, the parties, through their authorized representatives,

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entered into a Stipulated Settlement Agreement, ECF No. 66, resolving the claims set forth in

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Plaintiffs’ First Amended Complaint;

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WHEREAS, on November 23, 2010, the Court approved the Stipulated Settlement
Agreement and ordered dismissal with prejudice of the action, ECF No. 67;

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WHEREAS, the Stipulated Settlement Agreement requires the Service to submit to the

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Federal Register a notice of a final determination on the proposed rule amending 50 C.F.R. §

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17.84(d) on or before December 7, 2012;

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WHEREAS, the Stipulated Settlement Agreement allows this deadline to be modified

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upon good cause shown by written stipulation between the parties filed with and approved by the

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Court, ECF No. 67 at 4;

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WHEREAS, Notice of the Availability of a Final Supplemental Environmental Impact

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Statement on the Translocation of Southern Sea Otters Program was published by the

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Environmental Protection Agency on November 9, 2012, 77 Fed. Reg. 67362 (Nov. 9, 2012);

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Stipulation to Amend Settlement Agreement2

No. C. 09-4610 JW

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WHEREAS, pursuant to 40 C.F.R. § 1506.10(b)(2), the Service shall not make a final

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determination on a proposed action until at least 30 days after publication of the notice of

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availability of the relevant final environmental impact statement;

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WHEREAS, the Service requires additional time to comply with 40 C.F.R. §

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1506.10(b)(2) before it may submit a notice of a final determination on the proposed rule

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amending 50 C.F.R. § 17.84(d);

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WHEREAS, the Service shall submit to the Federal Register a notice of a final

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determination on the proposed rule amending 50 C.F.R. § 17.84(d) on or before December 14,

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2012;

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WHEREAS, on November 8, 2012, Plaintiffs’ and Intervenor-Defendants’ counsel
consented to this 7-day extension of time.

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NOW, THEREFORE, the parties hereby stipulate and agree as follows:

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1. On or before December 14, 2012, the Service shall submit to the Federal Register a

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notice of a final determination on the proposed rule amending 50 C.F.R. § 17.84(d).

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DATED this 14th day of November, 2012.

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Respectfully Submitted,
/s/ Brian Segee (as authorized 11/14/2012)
Linda J. Krop (No. 118773)
Brian Segee (No. 200795)
Environmental Defense Center
906 Garden Street
Santa Barbara, CA 93101
Phone: [phone]
Fax: [phone]
Email: [e-mail]

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Attorneys for Plaintiffs

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IGNACIA S. MORENO, Assistant Attorney General
SETH M. BARSKY, Section Chief
KRISTEN L. GUSTAFSON, Assistant Chief

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Stipulation to Amend Settlement Agreement3

No. C. 09-4610 JW

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/s/ Mary Hollingsworth
MARY HOLLINGSWORTH (AZ Bar No. 027080)
Trial Attorney
U.S. Department of Justice
Environment & Natural Resources Division
Wildlife & Marine Resources Section
Ben Franklin Station
P.O. Box 7611
Washington, DC 20044-7611
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Federal Defendants

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/s/ George J. Mannina, Jr. (as authorized 11/14/2012)
George J. Mannina, Jr. (D.C. Bar No. 316943)
Pro hac vice
NOSSAMAN LLP
1666 K St., N.W., Suite 500
Washington, D.C. 20006
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Attorney for Intervenor-Defendants
ATTORNEY ATTESTATION OF CONCURRENCE

I hereby attest that I have obtained concurrence in this filing and for affixing the signature of
Plaintiffs’ and Intervenor-Defendants’ counsel, indicated by a “conformed” signature (“/s/”), to
this e-filed document, in accordance with Local Rule 5-1(i)(3).

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PURSUANT TO STIPULATION, IT IS SO ORDERED

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Dated: this ____ day of _______________, 2012.
14th
November

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UNITED STATES DISTRICT JUDGE

Stipulation to Amend Settlement Agreement4

No. C. 09-4610 JW

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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 JOSE DIVISION

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THE OTTER PROJECT, et al.,

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Plaintiffs,
v.
KEN SALAZAR, et al.,
Defendants,

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CALIFORNIA SEA URCHIN
COMMISSION, et al.,
Intervenor-Defendants.

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No. C 09-4610 JW
CERTIFICATE OF SERVICE

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I hereby certify that today I electronically filed the foregoing with the Clerk of the Court
using the CM/ECF system, which will send notification of such to the attorneys of record.
/s/ Mary Hollingsworth
Mary Hollingsworth