Conservation Council for Hawaii et al v. National Marine Fisheries Service et al

Filing 117

STIPULATED SETTLEMENT AGREEMENT AND ORDER; MAPS "1"-"4" - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 9/14/2015. "...this Court shall retain jurisdiction for the purpose of resolving Plaintiffs' claims for attorneys' fees and costs, to oversee and enforce compliance with the terms of this Stipulation,..." (Attachments: # 1 Map 1, # 2 Map 2, # 3 Map 3, # 4 Map 4) Associated Cases: 1:13-cv-00684-SOM-RLP, 1:14 -cv-00153-SOM-RLP(emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

FLORENCE T. NAKAKUNI (2286) JOHN C. CRUDEN
United States Attorney
Assistant Attorney General
District of Hawaii
KEVIN W. McARDLE, Senior Attorney
HARRY YEE (3790)
TY BAIR, Trial Attorney
Assistant U.S. Attorney
U.S Department of Justice
Room 6-100, PJKK Federal Bldg.
Environment & Natural Resources Division
300 Ala Moana Boulevard
Benjamin Franklin Station, P.O. Box 7611
Honolulu, Hawaii 96850-6100
Washington, D.C. 20044-7611
Telephone: [phone]
Telephone: [phone] ∗
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CONSERVATION COUNCIL FOR HAWAI‘I,
et al.,

Case No. 1:13-CV-00684-SOMRLP (Lead); Case No. 1:14-cv00153-SOM-RLP (Consolidated)

Plaintiffs,
v.
NATIONAL MARINE FISHERIES SERVICE,
et al.,

STIPULATED SETTLEMENT
AGREEMENT AND
[PROPOSED] ORDER; MAPS
“1” – “4”

Judge: Hon. Susan Oki Mollway
Defendants.
Hearing Date: None
________________________________________ Trial Date:
None Assigned
NATURAL RESOURCES DEFENSE
COUNCIL, INC., et al.,
Plaintiffs,
v.
NATIONAL MARINE FISHERIES SERVICE,
et al.,
Defendants.
∗

Pursuant to Local Rule 10.2(b), the complete list of parties represented is set forth
on the signature page.

STIPULATED SETTLEMENT AGREEMENT AND [PROPOSED] ORDER
The parties to the above-captioned consolidated actions, by and through
undersigned counsel, state as follows:
WHEREAS, on March 31, 2015, the Court issued an Opinion and Order
granting the Plaintiffs’ motions for summary judgment as to the merits of their
claims (ECF No. 98);
WHEREAS, having bifurcated proceedings on liability and remedy, the
Court directed the parties to submit, by April 14, 2015, a proposed schedule for
further proceedings to determine appropriate relief (ECF Nos. 38, 100);
WHEREAS the parties subsequently stipulated to multiple extensions of the
April 14, 2015 deadline to allow for settlement negotiations, and the Court
approved those stipulations (ECF Nos. 103, 105, 107, 111, 113, 115);
WHEREAS the parties, through their authorized representatives, and
without any admission of fact or law with respect to Plaintiffs’ claims, have
reached a settlement resolving the claims contained in Plaintiffs’ second amended
complaints (ECF Nos. 40-41), except for Plaintiffs’ claims for awards of attorneys’
fees and litigation costs;
WHEREAS the parties agree that settlement of these consolidated actions in
the manner described below is in the public interest and is an appropriate way to
resolve the disputes between them;

NOW, THEREFORE, THE PARTIES STIPULATE, AND THE COURT
ORDERS, AS FOLLOWS:
1.

For purposes of this Stipulated Settlement Agreement (“Stipulation”),

the terms listed below are defined as follows:
a.

“EIS” means the Hawaii-Southern California Training and

Testing Activities Final Environmental Impact Statement/Overseas
Environmental Impact Statement (dated August 2013) (ECF Nos. 64-19
through 64-25, and 65-2 through 65-10).
b.

“HSTT” means the U.S. Department of the Navy’s (“Navy’s”)

Hawaii-Southern California Training and Testing Study Area described in
the EIS (ECF No. 64-20:5207-22 (H167431-46)).
c.

“Final Rule” means the final rule issued pursuant to the Marine

Mammal Protection Act, 16 U.S.C. § 1371(a)(5)(A), for the Navy’s HSTT
activities that is at issue in this litigation (78 Fed. Reg. 78,106 (Dec. 24,
2013) (ECF No. 66-19), as corrected, 79 Fed. Reg. 26,188 (May 7, 2014)).
d.

“In-Water Explosive” means a weapon containing an

explosive-filled warhead or demolition charge purposefully detonated below
the water’s surface. This definition specifically excludes devices employing
explosives with 5 pounds net explosive weight or less for non-weapon

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functions such as launch or ejection, or to actuate or perform internal
functions.
e.

“MFAS” means hull-mounted, mid-frequency active sonar (a

sonar source producing signals from 1 to 10 kilohertz) on Navy surface
vessels.
f.

“MTE” means a coordinated or strike group major training

exercise that, for purposes of this Stipulation, consists of: Integrated AntiSubmarine Warfare Course, Composite Training Unit Exercise, Joint Task
Force Exercise, Sustainment Exercise (“SUSTEX”); Undersea Warfare
Exercise (“USWEX”); Independent Deployer Certification Exercise
(“IDCERTEX”); and Rim of the Pacific Exercise (“RIMPAC”). MTE
includes Unit-Level Training (defined in paragraph 1.h) that may be
conducted by MTE participants when an MTE is ongoing.
g.

“System Checks” means the non-tactical use of MFAS for pre-

operational testing, preventive or corrective maintenance, and during
inspections by the Board of Inspection and Survey.
h.

“Unit-Level Training,” or “ULT,” means single surface vessel

training, or a combination of surface vessels and submarines or aircraft
training, with the use of surface ship MFAS.

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2.

This Stipulation shall take effect immediately upon the Court’s entry

of the Stipulation as the Court’s order; provided, however, that the Navy’s duty to
comply with the non-MTE provisions of paragraphs 8-26 shall commence 60 days
after this Stipulation takes effect. The Navy’s duty to comply with the MTE
provisions within paragraphs 9-12, 15, 17, 20-21, and 23-24 shall take effect
immediately upon the Court’s entry of the Stipulation as the Court’s order.
3.

Paragraphs 1(d) to (h), 8 through 36 and 40 of this Stipulation shall

automatically expire upon the earlier of: (a) the expiration of the Final Rule on
December 24, 2018; or (b) the National Marine Fisheries Service’s (“NMFS”)
issuance of a superseding final rule pursuant to the Marine Mammal Protection
Act, 16 U.S.C. § 1371(a)(5)(A), preceded or accompanied by: (i) a new biological
opinion or “not likely to adversely affect” concurrence letter concluding
consultation pursuant to Section 7(a)(2) of the Endangered Species Act, 16 U.S.C.
§ 1536(a)(2), on the superseding final rule and associated HSTT training and
testing activities; and (ii) a new or supplemental Environmental Impact
Statement/Record of Decision or Environmental Assessment/Finding of No
Significant Impact for the superseding rule and associated HSTT training and
testing activities prepared pursuant to the National Environmental Policy Act.
4.

The Final Rule, associated Letters of Authorization (ECF Nos. 67-22,

67-23), and EIS are remanded to Defendants without vacatur.
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5.

Nothing in this Stipulation shall be construed to modify or limit the

discretion afforded to Defendants under the Marine Mammal Protection Act, the
National Environmental Policy Act, the Endangered Species Act, the
Administrative Procedure Act, or general principles of administrative law in
carrying out the remand and issuing any superseding decision documents described
in paragraph 3, or with respect to the substance of any superseding decision
documents.
6.

Nothing in this Stipulation, or the dismissal with prejudice required by

it, shall operate to modify or limit Plaintiffs’ right to seek judicial review of any
superseding decision documents described in paragraph 3. Any legal challenge to
any superseding decision documents described in paragraph 3 must be brought in a
new civil action, and not in a continuation of either or both of the above-captioned
consolidated actions. Defendants reserve any and all defenses they may have to
any such legal challenge.
7.

During the period that paragraphs 8 through 27 are in effect, the Navy

shall conduct its training and testing activities in the HSTT subject to the terms of
this Stipulation and the terms of the Final Rule, Letters of Authorization (ECF Nos.
67-22, 67-23), and Biological Opinion (ECF No. 101-1). In the event of any
conflict, the terms of this Stipulation control.

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8.

Navy surface vessels operating within the HSTT shall avoid

approaching marine mammals head-on and shall maneuver to maintain a 500 yard
(457 meter) mitigation zone for observed whales and a 200 yard (183 meter)
mitigation zone for all other observed marine mammals (except bow riding
dolphins), providing it is safe to do so.
9.

Within the area identified as Figure A on the attached Map 1, the

Navy shall: (a) prohibit the use of MFAS for training and testing activities during
both MTEs and ULT; and (b) prohibit the use of In-Water Explosives for training
and testing activities.
10.

Within the area identified as Figure B on Map 1, the Navy shall limit

the use of MFAS for training and testing activities during MTEs to one RIMPAC
in 2016, one RIMPAC in 2018, three USWEX per calendar year, and one
IDCERTEX per calendar year.
11.

Within the area identified as Figure C on Map 1, the Navy shall: (a)

limit the use of MFAS for training and testing activities during MTEs to one
RIMPAC in 2016, one RIMPAC in 2018, three USWEX per calendar year, and
one IDCERTEX per calendar year; (b) prohibit the use of MFAS for training and
testing activities during ULT (excluding ULT conducted by participants in an
ongoing MTE specified in subparagraph (a)); and (c) prohibit the use of In-Water
Explosives for training and testing activities.
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12.

Within the area identified as Figure D on Map 1, the Navy shall: (a)

limit the use of MFAS for training and testing activities during MTEs to one
RIMPAC in 2016, one RIMPAC in 2018, three USWEX per calendar year, one
IDCERTEX per calendar year, and one SUSTEX per calendar year; (b) prohibit
the use of MFAS for training and testing activities during ULT (excluding ULT
conducted by participants in an ongoing MTE specified in subparagraph (a)); and
(c) prohibit the use of In-Water Explosives for training and testing activities.
13.

Within the area identified as Figure E on Map 1, the Navy shall

require that all surface vessels use extreme caution and proceed at safe speed so
they can take proper and effective action to avoid a collision with any sighted
object or disturbance, and can be stopped within a distance appropriate to the
prevailing circumstances and conditions.
14.

Within the area depicted on Map 1 where Figure E overlaps with:
a. Figure B, the provisions of both paragraph 10 and paragraph
13 apply; and
b. Figure C, the provisions of both paragraph 11 and paragraph
13 apply.

15.

Within the area identified as Figure A on attached Map 2, the Navy

shall: (a) prohibit the use of MFAS for training and testing activities during
MTEs; (b) prohibit the use of In-Water Explosives for training and testing
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activities; and (c) require that all surface vessels use extreme caution and proceed
at safe speed so they can take proper and effective action to avoid a collision with
any sighted object or disturbance, and can be stopped within a distance appropriate
to the prevailing circumstances and conditions.
16.

Within the area identified as Figure B on Map 2, the Navy shall: (a)

prohibit the use of In-Water Explosives for training and testing activities; and (b)
require that all surface vessels use extreme caution and proceed at safe speed so
they can take proper and effective action to avoid a collision with any sighted
object or disturbance, and can be stopped within a distance appropriate to the
prevailing circumstances and conditions.
17.

Within the area identified as Figure C on Map 2, the Navy shall: (a)

prohibit the use of MFAS for training and testing activities during MTEs; (b)
implement a Protective Measure Assessment Protocol (“PMAP”) Measure
advising Commanding Officers that the area is False Killer Whale habitat and that
they should avoid using MFAS during ULT within the area whenever practicable;
and (c) prohibit the use of In-Water Explosives for training and testing activities.
18.

Within the area depicted on Map 2 where Figures B and C overlap,

the provisions of both paragraph 16 and paragraph 17 apply.
19.

Within the area identified as Figure D on Map 2, the Navy shall

prohibit the use of In-Water Explosives for training and testing activities.
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20.

Within the area identified as Figure A on attached Map 3, the Navy

shall: (a) prohibit the use of MFAS for training and testing activities during MTEs
and ULT from June 1 through October 31; and (b) require that all surface vessels
use extreme caution and proceed at safe speed so they can take proper and effective
action to avoid a collision with any sighted object or disturbance, and can be
stopped within a distance appropriate to the prevailing circumstances and
conditions.
21.

Within the area identified as Figure B on Map 3, the Navy shall: (a)

prohibit the use of MFAS for training and testing activities during MTEs and ULT,
except for System Checks, from June 1 through October 31; (b) implement a
seasonal PMAP Measure from June 1 through October 31 advising Commanding
Officers that the area is Blue Whale habitat and that they should avoid conducting
System Checks within the area whenever practicable; and (c) require that all
surface vessels use extreme caution and proceed at safe speed so they can take
proper and effective action to avoid a collision with any sighted object or
disturbance, and can be stopped within a distance appropriate to the prevailing
circumstances and conditions.
22.

Within the area identified as Figure C on Map 3, the Navy shall

require, from November 1 through May 20, that all surface vessels use extreme
caution and proceed at safe speed so they can take proper and effective action to
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avoid a collision with any sighted object or disturbance, and can be stopped within
a distance appropriate to the prevailing circumstances and conditions.
23.

Within the area identified as Figure A on attached Map 4, the Navy

shall: (a) prohibit the use of MFAS for training and testing activities during MTEs
and ULT; and (b) prohibit the use of In-Water Explosives for training and testing
activities.
24.

Within the area identified as Figure B on Map 4, the Navy shall

prohibit the use of MFAS for training and testing activities during MTEs and ULT.
25.

Within the area identified as Figure C on Map 4, the Navy shall

require, from June 1 through October 31, that all surface vessels use extreme
caution and proceed at safe speed so they can take proper and effective action to
avoid a collision with any sighted object or disturbance, and can be stopped within
a distance appropriate to the prevailing circumstances and conditions.
26.

Within the area identified as Figure D on Map 4, the Navy shall

require that all surface vessels use extreme caution and proceed at safe speed so
they can take proper and effective action to avoid a collision with any sighted
object or disturbance, and can be stopped within a distance appropriate to the
prevailing circumstances and conditions.
27.

The Navy’s exercise planning for foreign navy participants shall be

consistent with the geographic restrictions contained in this Stipulation. However,
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nothing in this Stipulation imposes a duty upon the Navy to attempt to enforce the
terms of the Stipulation against foreign navies.
28.

Notwithstanding any provision of this Stipulation, the Navy reserves

the authority to conduct any testing or training activities otherwise prohibited or
restricted by this Stipulation when the Navy deems it necessary for national
defense. This authority may be invoked only by the Commander, or Acting
Commander, U.S. Pacific Fleet, for training activities; or the appropriate
Commander, or Acting Commander, Systems Command (Naval Air Systems
Command, Naval Sea Systems Command, Space and Naval Warfare Systems
Command), or Chief of Naval Research, or Acting Chief, Office of Naval
Research, for testing activities. For any invocation of the authority provided in this
paragraph, the Navy shall provide notification to NMFS, and shall also report such
invocation(s) of authority in the publicly releasable versions of its Annual HSTT
Exercise and Testing Report and 5-Year Close-Out Exercise Report.
29.

Within fourteen (14) days of an event triggering the reporting

requirements of 50 C.F.R. § 218.75(c) or (d), NMFS shall initiate a review of the
event pursuant to 50 C.F.R. §§ 218.78(c) and 216.106(e) to determine whether
additional mitigation is required, or whether the Navy’s Letters of Authorization
(ECF Nos. 67-22, 67-23) should be modified, withdrawn, or suspended. Also
within fourteen (14) days of an event triggering the reporting requirements of 50
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C.F.R. § 218.75(c) or (d), NMFS shall publish notice of the event on its internet
website and shall notify Plaintiffs in accordance with paragraph 32 regarding the
internet address at which the notice is available.
30.

NMFS shall complete its review of an event triggering the reporting

requirements of 50 C.F.R. § 218.75(c) or (d) as expeditiously as possible, and no
later than: (i) six (6) months from the date of the event when NMFS finds that
notice and comment procedures under 50 C.F.R. § 216.106(e) or 50 C.F.R. §
218.78(c)(ii) are not required; or (ii) ten (10) months from the date of the event
when NMFS finds that notice and comment procedures are required. Should
NMFS find that notice and comment procedures are required, NMFS shall: (i)
submit notice of its proposed action to the Federal Register for publication within
six (6) months from the date of the event that triggered the reporting requirements
of 50 C.F.R. § 218.75(c) or (d); and (ii) notify Plaintiffs of the submission in
accordance with paragraph 32 on the Federal Register filing date, see 44 U.S.C. §
1503.
31.

At the time NMFS completes its review described in paragraphs 29

and 30, NMFS shall publish notice of the outcome of its review on its internet
website and shall notify Plaintiffs in accordance with paragraph 32 regarding the
internet address at which the notice is available.

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32.

Whenever notifications or other communications to Plaintiffs or

Defendants are required by this Stipulation, they shall be in writing, and be
addressed and sent via U.S. Mail or electronic mail as follows:
To Plaintiffs in Conservation Council for Hawaii, et al. v. National Marine
Fisheries Service, et al., Civ. No. 13-00684 SOM/RLP (D. Hawai‘i), via
Plaintiffs’ attorney of record:
David Lane Henkin
Earthjustice
850 Richards Street, Suite 400
Honolulu, Hawai‘i 96813
[e-mail]
To Plaintiffs in Natural Resources Defense Council, Inc., et al. v. National
Marine Fisheries Service, et al., Civ. No. 14-00153 SOM/RLP (D. Hawai‘i),
via Plaintiffs’ attorney of record:
Jennifer A. Sorenson
NRDC
111 Sutter Street, 20th Floor
San Francisco, CA 94104
[e-mail]
To Defendants, via Defendants’ attorneys of record:
Kevin W. McArdle
U.S. Department of Justice
Environment and Natural Resources Division
Wildlife & Marine Resources Section
Benjamin Franklin Station, P.O. Box 7611
Washington, DC 20044-7611
[e-mail]
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Ty Bair
U.S. Department of Justice
Environment and Natural Resources Division
Natural Resources Section
Benjamin Franklin Station, P.O. Box 7611
Washington, DC 20044-7611
[e-mail]
33.

Any Party may, by written notice to the other Parties, change its

designated notice recipient or notice address provided in paragraph 32.
34.

Any decision NMFS may make upon completion of its review

described in paragraphs 29 and 30 may be preliminary or interim in nature,
depending upon the information that may be available at the time NMFS is
required to complete its review. Nothing in this Stipulation prohibits NMFS from
revisiting, revising, or finalizing any such preliminary or interim determination as
relevant new information becomes available.
35.

Nothing in this Stipulation shall be construed to modify or limit the

discretion afforded to NMFS under the Marine Mammal Protection Act, any other
statute or regulation, or general principles of administrative law in conducting the
review described in paragraphs 29 and 30 or with respect to the substance of any
action taken as a result of the review.
36.

Any legal challenge to NMFS’s decision following a review described

in paragraphs 29 and 30 must be brought in a separate action, and not in a

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continuation of either or both of the above-captioned consolidated actions.
Defendants reserve any and all defenses they may have to such a challenge.
37.

Upon the Court’s entry of this Stipulation as the Court’s order, the

above-captioned consolidated actions are dismissed with prejudice.
38.

Nothing in this Stipulation, or the dismissal with prejudice required by

it, resolves Plaintiffs’ claims for awards of attorneys’ fees and litigation costs,
which are collateral to and separable from Plaintiffs’ claims on the merits that are
resolved by the dismissal with prejudice, and which are left for resolution through
future negotiation or motion practice. Judgment shall not be entered in the abovecaptioned consolidated actions prior to resolution of Plaintiffs’ claims for awards
of attorneys’ fees and litigation costs. Prior to the entry of judgment herein, the
Court shall not entertain any motions other than motions associated with Plaintiffs’
claims for awards of attorneys’ fees and litigation costs or motions brought
pursuant to paragraph 44 or paragraph 45.
39.

Each party reserves any and all arguments, claims, and/or defenses it

may have with respect to Plaintiffs’ claims for awards of attorneys’ fees and
litigation costs. Following the Court’s entry of the Stipulation as the Court’s order,
the parties will attempt to negotiate a resolution of Plaintiffs’ claims for awards of
attorneys’ fees and litigation costs. Should those negotiations prove unsuccessful,

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Plaintiffs may file applications with this Court for the recovery of fees and costs
within ninety (90) days of the entry of the Stipulation as the Court’s order.
40.

Without limiting the scope, effect, or legal consequences of the

dismissal of the above-captioned consolidated actions with prejudice, prior to the
expiration of this provision pursuant to paragraph 3, Plaintiffs shall not bring,
either individually or collectively, any civil or administrative action in any forum
against the United States or any of its officers or agencies:
(a)

challenging, under any law or regulation: (i) the Biological Opinion
(ECF No. 101-1); (ii) the Final Rule; (iii) the Letters of Authorization
(ECF Nos. 67-22, 67-23), (iv) the EIS; (v) the Navy’s Records of
Decision (ECF No. 65-20); or (vi) NMFS’s Record of Decision (ECF
Nos. 66-21, 66-23);

(b)

challenging, based on information available to the Plaintiffs on or
before July 24, 2015, Defendants’ failure to (1) supplement the EIS,
(2) modify, withdraw, or suspend the Final Rule or associated Letters
of Authorization, or (3) reinitiate Endangered Species Act
consultation; or

(c)

seeking additional injunctive relief prohibiting or restricting the
Navy’s training or testing activities in the HSTT described in the EIS.

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41.

Nothing in this Stipulation, or the dismissal with prejudice required by

it, shall preclude Plaintiffs from bringing, either individually or collectively, any
civil or administrative action in any forum against the United States or any of its
officers or agencies challenging, based on information not available to the
Plaintiffs on or before July 24, 2015, Defendants' failure to (1) supplement the EIS,
(2) modify, withdraw, or suspend the Final Rule or associated Letters of
Authorization, or (3) reinitiate Endangered Species Act consultation, provided that,
prior to the expiration of paragraph 40 pursuant to paragraph 3, Plaintiffs shall not
in any such action seek additional injunctive relief prohibiting or restricting the
Navy’s training or testing activities in the HSTT described in the EIS. Any legal
challenge described in the preceding sentence must be brought in a new action, and
not in a continuation of either or both of the above-captioned consolidated actions.
Defendants reserve any and all defenses they may have to any such legal
challenge.
42.

Nothing in this Stipulation, or the dismissal with prejudice required by

it, shall prohibit Plaintiffs from challenging, after paragraph 40 expires pursuant to
paragraph 3: (a) the Biological Opinion (ECF No. 101-1), if Defendants rely on
the Biological Opinion to satisfy their obligations under the Endangered Species
Act for HSTT training and testing activities to be conducted after expiration of the
Final Rule; or (b) the EIS, if Defendants rely on the EIS to satisfy their obligations
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under the National Environmental Policy Act for HSTT training and testing
activities to be conducted after expiration of the Final Rule. Any legal challenge to
the Biological Opinion or EIS described in this paragraph must be brought in a
new civil action, and not in a continuation of either or both of the above-captioned
consolidated actions. Defendants reserve any and all defenses they may have to
any such legal challenge.
43.

Except as expressly provided in this Stipulation, none of the parties

waives or relinquishes any legal rights, claims, or defenses it may have.
44.

Any provision of this Stipulation may be modified by the Court upon

good cause shown, consistent with the Federal Rules of Civil Procedure, by: (a)
written stipulation between the parties filed with and approved by the Court; or (b)
upon written motion filed with and granted by the Court. Any party seeking to
modify the terms of this Stipulation shall first contact the other parties, and the
parties shall meet and confer (telephonically or in-person) at the earliest possible
time in a good-faith effort to resolve the matter before seeking relief from the
Court.
45.

In the event of a dispute arising out of or relating to this Stipulation,

including a dispute over any asserted violation of any term of the Stipulation, the
party raising the dispute shall provide the other parties with notice of the dispute.
The parties agree that they will meet and confer (telephonically or in person)
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within seven (7) calendar days after notice is provided in a good-faith effort to
resolve the dispute before seeking relief from the Court. In the event that Plaintiffs
believe Defendants have failed to comply with a term of this Stipulation and have
not sought to modify the term, Plaintiffs’ first remedy shall be a motion to enforce
the terms of this Stipulation. This Stipulation shall not, in the first instance, be
enforceable through a proceeding for contempt of court.
46.

Nothing in this Stipulation constitutes a concession by any party as to:

(a) any fact, claim, or defense concerning any issue in this case; or (b) the potential
impacts on marine mammals or any other form of marine life of MFAS, In-Water
Explosives, or any aspect of the Navy’s training or testing activities in the HSTT;
or (c) the extent of measures applicable to the Navy’s training or testing activities
in the HSTT that are or may be required to comply with the Marine Mammal
Protection Act, the National Environmental Policy Act, the Endangered Species
Act, or any other provision of law. By entering into this Stipulation, Defendants
do not concede that any of its terms will or should be incorporated into any final
action taken on remand or any superseding decision document described in
paragraph 3.
47.

This Stipulation has no precedential value and shall not be used as

evidence in any litigation or administrative proceeding except as necessary to
enforce its terms.
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48.

No provision of this Stipulation shall be interpreted as or constitute a

commitment or requirement that the United States is obligated to pay funds in
contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other provision
of law.
49.

No provision of this Stipulation shall be interpreted as or constitute a

commitment or requirement that Defendants take actions in contravention of the
Marine Mammal Protection Act, the National Environmental Policy Act, the
Endangered Species Act, the Administrative Procedure Act, or any other law or
regulation, either substantive or procedural.
50.

This Stipulation was jointly drafted by the parties. Accordingly, any

and all rules of construction to the effect that ambiguity is construed against the
drafting party shall be inapplicable in any dispute concerning the terms, meaning,
or interpretation of this Stipulation.
51.

All negotiations leading up to this Stipulation, including any

correspondence and other documents exchanged during and for the purpose of
settlement negotiations, are confidential, and will not be discussed or disclosed
except to the parties and their representatives.
52.

The undersigned representatives of each party certify that they are

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

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approval and adoption of the terms of this Stipulation and do hereby agree to the
terms of this Stipulation.
53.

Notwithstanding the dismissal of the above-captioned consolidated

actions, this Court shall retain jurisdiction for the purpose of resolving Plaintiffs’
claims for attorneys’ fees and costs, to oversee and enforce compliance with the
terms of this Stipulation, and to resolve any future disputes concerning the
interpretation or implementation of this Stipulation or motions to modify its terms.
See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 381-82 (1994).
DATED:

September 11, 2015

Respectfully submitted,

EARTHJUSTICE
850 Richards Street, Suite 400
Honolulu, Hawai‘i 96813

JOHN C. CRUDEN
Assistant Attorney General

/s/ David L. Henkin
By: DAVID L. HENKIN
Attorneys for Plaintiffs in Case No.
1:13-CV-00684-SOM-RLP (D. Hawaii)
COLIN A. YOST #7739
1600 Kapiolani Boulevard, Suite 1700
Honolulu, HI 96814
/s/ Jennifer A. Sorenson
JENNIFER A. SORENSON
STEPHEN ZAK SMITH
NANCY S. MARKS
Natural Resources Defense Council
Attorneys for Plaintiffs in Case No.
1:14-cv-00153-SOM-RLP (D. Hawaii)

/s/ Kevin W. McArdle
KEVIN W. McARDLE, Senior
Attorney (D.C. Bar No. 454569)
/s/ Ty Bair
TY BAIR, Trial Attorney (Idaho Bar
7973)
U.S. Department of Justice
Attorneys for Defendants in Case No.
1:13-CV-00684-SOM-RLP and Case
No. 1:14-cv-00153-SOM-RLP (D.
Hawaii)

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APPROVED AND SO ORDERED.

/s/ Susan Oki Mollway
SUSAN OKI MOLLWAY
CHIEF UNITED STATES DISTRICT JUDGE

Conservation Council for Hawai‘i, et al. v. National Marine Fisheries Service, et
al., Case No. 1:13-CV-00684-SOM-RLP (Lead); Natural Resources Defense
Council, et al. v. National Marine Fisheries Service, et al., Case No. 1:14-cv00153-SOM-RLP (Consolidated); STIPULATED SETTLEMENT AGREEMENT
AND [PROPOSED] ORDER; MAPS “1” – “4”

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