Cottonwood Environmental Law Center et al v. U.S. Fish and Wildlife Service et al

Filing 31

JOINT STIPULATION OF SETTLEMENT AND DISMISSAL re 30 Errata, 29 Stipulation of Settlement and Dismissal. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
COTTONWOOD ENVIRONMENTAL
LAW CENTER; WESTERN
WATERSHEDS PROJECT; GALLATIN
WILDLIFE ASSOCIATION; NATIVE
ECOSYSTEMS COUNCIL; and the
YELLOWSTONE BUFFALO
FOUNDATION,
Plaintiffs,
v.
U.S. FISH AND WILDLIFE SERVICE;
U.S. SHEEP EXPERIMENT STATION;
U.S. DEPARTMENT OF
AGRICULTURE; U.S. FOREST
SERVICE; and the AGRICULTURAL
RESEARCH SERVICE,
Defendants.

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CASE NO. 4:13-cv-235-BLW
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JOINT STIPULATION OF SETTLEMENT
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AND DISMISSAL
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This Stipulation is entered into by and between Plaintiffs Cottonwood Environmental
Law Center, Western Watersheds Project, Gallatin Wildlife Association, Native Ecosystems
Council, and the Yellow Buffalo Foundation and Defendants United States Fish and Wildlife
Service (“Service”), United States Sheep Experiment Station (“Station”), United States
Department of Agriculture, and the Agricultural Research Service.
WHEREAS, the Endangered Species Act (“ESA” or “Act”) requires each federal agency, in
consultation with the Service, to “insure that any action authorized, funded, or carried out by
such agency . . . is not likely to jeopardize the continued existence” of species listed under the
Act. See 16 U.S.C. §§ 1536(a)(2);

WHEREAS, on November 8, 2011, the Service issued a Biological Opinion on the Station’s
Grazing and Associated Projects, concluding that the Station’s operation would not jeopardize
the grizzly bear, a threatened species under the ESA. See 50 C.F.R. §§ 402.02, 402.14;
WHEREAS, Plaintiffs filed their complaint in this matter on May 17, 2013, challenging the
Biological Opinion under the Administrative Procedure Act (“APA”). See 5 U.S.C. § 706;
WHEREAS, Plaintiffs amended their complaint on July 30, 2013, adding claims that the United
States Department of Agriculture’s continued operation of the Station violated the ESA. See 16
U.S.C. § 1540(g);
WHEREAS, the parties, through their authorized representatives, and without any admission or
final adjudication of the issues of fact or law with respect to Plaintiffs’ claims, have reached a
settlement that they consider to be a just, fair, adequate, and equitable resolution of the disputes
set forth in Plaintiffs’ complaint;
WHEREAS, the parties agree that settlement of this action in this manner is in the public interest
and is an appropriate way to resolve the dispute between them;
NOW, THEREFORE, the parties hereby stipulate and agree as follows:
1. On or before June 1, 2014, the Service will issue a new Biological Opinion on the Station’s
Grazing and Associated Projects.
2. Prior to July 1, 2014, neither the Station nor any subdivision of the Department of Agriculture
will permit sheep to graze on the Station’s Summer East, Summer West, or Meyers Creek
Pastures.

Cottonwood Environmental Law Ctr. v. FWS, Civ. No. 13-235
JOINT STIPULATION OF SETTLEMENT AND DISMISSAL

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3. Either party may seek to modify the deadline for the action specified in Paragraph 1 for good
cause shown, consistent with the Federal Rules of Civil Procedure. In that event, or in the event
that either party believes that the other party has failed to comply with any term or condition of
this Settlement Agreement (“Agreement”), the parties shall use the dispute resolution procedures
specified in Paragraph 4 below.
4. The Order entering this Agreement may be modified by the Court upon good cause shown,
consistent with the Federal Rules of Civil Procedure, by written stipulation between the parties
filed with and approved by the Court, or upon written motion filed by one of the parties and
granted by the Court. In the event that either party seeks to modify the terms of this Agreement,
including the deadline specified in Paragraph 1, or in the event of a dispute arising out of or
relating to this Agreement, or in the event that either party believes that the other party has failed
to comply with any term or condition of this Agreement, the party seeking the modification,
raising the dispute, or seeking enforcement shall provide the other party with notice. The parties
agree that they will meet and confer (either telephonically or in-person) at the earliest possible
time in a good-faith effort to resolve any dispute before seeking relief from the Court. In the
event that the Federal Defendants fail to meet the deadline specified in Paragraph 1, above, and
the Federal Defendants have not sought to modify that deadline, or if Plaintiffs seek other relief
from the court, Plaintiffs’ first remedy shall be a motion to enforce the terms of this Agreement.
This Agreement shall not, in the first instance, be enforceable through a proceeding for contempt
of court.
5. No party shall use this Agreement or the terms herein as evidence of what does or does not
constitute a reasonable time for interagency consultation in any other proceeding regarding
implementation of the ESA.
Cottonwood Environmental Law Ctr. v. FWS, Civ. No. 13-235
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6. Plaintiffs are entitled to reasonable costs and attorney fees. Within 10 days of the approval of
this Settlement Agreement by the Court, Plaintiffs will submit their bill for reasonable costs and
attorney fees and any necessary supporting materials to counsel for Defendants. The parties
agree to work together in good faith to resolve any disputes concerning Plaintiffs’ submitted
costs and fees. The parties stipulate and agree that further proceedings concerning an application
by Plaintiffs for attorney’s fees, including the filing of memoranda and other materials
supporting that application, should be deferred until such time as the parties agree to a schedule
for briefing and resolving the fee application or the Court, at the request of one of the parties,
sets such a schedule if the parties cannot agree on one. Defendants do not waive any right to
contest the amount of fees claimed by Plaintiffs or Plaintiffs’ counsel, including the hourly rate.
7. The parties agree that Plaintiffs reserve the right to seek additional fees and costs incurred
subsequent to this Agreement arising from a need to enforce or defend against efforts to modify
the underlying schedule outlined in Paragraph 1, or for any other continuation of this action. By
this Agreement, Defendants do not waive any right to contest fees claimed by Plaintiffs or
Plaintiffs’ counsel, including the hourly rate, in any future litigation or continuation of the
present action. Further, this Agreement as to attorneys’ fees and costs has no precedential value
and shall not be used as evidence in any other attorneys’ fees litigation.
8. No provision of this Agreement shall be interpreted as, or constitute, a commitment or
requirement that Defendants take action in contravention of the ESA, the APA, or any other law
or regulation, either substantive or procedural. Nothing in this Agreement shall be construed to
limit or modify the discretion accorded to the Defendants by the ESA, the APA, or general
principles of administrative law with respect to the procedures to be followed in making any
determination required herein, or as to the substance of any final determination.
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9. Nothing in this Agreement shall be interpreted as, or shall constitute, a requirement that
Defendants are obligated to pay any funds exceeding those available, or take any action in
contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other appropriations law.
10. The parties agree that this Agreement was negotiated in good faith and that this Agreement
constitutes a settlement of claims that were denied and disputed by the parties. By entering into
this Agreement, the parties do not waive any claim or defense.
11. 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 entry of the terms and conditions of this
Agreement and do hereby agree to the terms herein.
12. The terms of this Agreement shall become effective upon entry of an order by the Court
ratifying the Agreement.
13. Upon approval of this Agreement by the Court, all counts of Plaintiffs’ complaint shall be
dismissed with prejudice. Notwithstanding the dismissal of this action, however, the parties
hereby stipulate and respectfully request that the Court retain jurisdiction to oversee compliance
with the terms of this Agreement and to resolve any motions to modify such terms. See
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994).

Cottonwood Environmental Law Ctr. v. FWS, Civ. No. 13-235
JOINT STIPULATION OF SETTLEMENT AND DISMISSAL

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Approved.

DATED: February 1, 2014
_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Cottonwood Environmental Law Ctr. v. FWS, Civ. No. 13-235
JOINT STIPULATION OF SETTLEMENT AND DISMISSAL

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