Moapa Band of Paiute Indians, et al v. Nevada Power, et al

Filing 114

ORDER Granting 105 Joint Motion to Approve Settlement: The claims asserted in this case are DISMISSED with prejudice. The Clerk of Court is instructed to close this case. The Moapa Paiute and Sierra Club will have until Thursday, November 12, 2015, to file their bill costs and motion for attorney's fees. Signed by Judge Jennifer A. Dorsey on 10/14/2015. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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THE MOAPA BAND OF PAIUTE
INDIANS, a federally recognized Tribe of
Indians; SIERRA CLUB, a California nonprofit corporation,

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2:13-cv-01417-JAD-NJK
Order Granting Joint Motion to
Approve Settlement

Plaintiffs

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v.

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[ECF 105]

NEVADA POWER CO. d/b/a NV ENERGY;
CALIFORNIA DEPARTMENT OF WATER
RESOURCES,

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Defendants

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This matter comes before me on the joint motion to approve the settlement agreement

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between plaintiffs The Moapa Band of Pauite Indians (Moapa Paiute) and the Sierra Club on one

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hand, and defendants the Nevada Power Company and the California Department of Water

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Resources (CDWR) on the other.1 Having reviewed the settlement agreement, the joint motion,

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the Government’s statement of interest and comments on the proposed settlement,2 and the

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pleadings, and having heard from the parties at oral argument held on the joint motion on

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October 14, 2015, and being fully advised, I find as follows:
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This action is a citizen suit under the Clean Water Act, 33 U.S.C. §§ 1251 et seq.

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(CWA) and the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq. (RCRA)

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alleging violations of 33 U.S.C. § 1311 for the unlawful discharge of pollutants and violations of

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42 U.S.C. §§ 6972 and 6945 for imminent and substantial endangerment and open dumping at a

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coal-fired power plant in Moapa, Nevada, that is owned in part and operated by Nevada Power

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and owned in part by CDWR.
2.

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ECF 105.

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ECF 110.

I have jurisdiction over the subject matter of, and persons in, this action.

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3.

Notice of the proposed settlement agreement required under 33 U.S.C. § 1365(c)

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and 40 C.F.R. § 135.5 was given to the United States Department of Justice and the United States

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Environmental Agency on July 24, 2015.

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4.

The United States Department of Justice submitted comments to the court

regarding the proposed settlement agreement on September 15, 2015.

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The settlement is appropriate for approval under the CWA and the RCRA.

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6.

The parties are directed to comply with the terms of the settlement agreement that

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they entered into on July 16, 2015, a copy of which is attached and incorporated by reference into

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this order as if fully set forth herein.

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Accordingly, IT IS HEREBY ORDERED that the joint motion to approve settlement
[ECF 105] is GRANTED.
IT IS ORDERED, ADJUDGED, AND DECREED that the claims asserted in this case

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are DISMISSED with prejudice. The Clerk of Court is instructed to close this case. I

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expressly retain jurisdiction over this action for the purposes of (1) enforcing the settlement

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agreement between the parties and the terms of that agreement, which has been incorporated into

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this order by reference, and (2) deciding any applications for attorney’s fees and costs.

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IT IS FURTHER ORDERED that, if the parties subsequently reach a proposed settlement

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over costs and attorney’s fees, they will provide the United States Department of Justice and the

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United States Environmental Agency with supplemental notice as required by 33 U.S.C. §

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1365(c) and 40 C.F.R. § 135.5.

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IT IS FURTHER ORDERED that the Moapa Paiute will notify the court, the United

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States Department of Justice, the United States Environmental Agency, Nevada Power, and the

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CDWR if the uses that the supplemental-environmental project (SEP) payments are allotted to

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change.

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IT IS FURTHER ORDERED that, after the SEP funds have been disbursed, the Moapa

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Paiute will notify the court, the United States Department of Justice, the United States

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Environmental Agency, Nevada Power, and the CDWR how the SEP funds were spent.

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IT IS FURTHER ORDERED that the Moapa Paiute and the Sierra Club’s request to

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extend by two weeks (a) the time under LR 54-1 to file a bill of costs, and (b) the time under LR

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54-16 to move for an award of attorney’s fees is GRANTED. The Moapa Paiute and Sierra Club

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will have until Thursday, November 12, 2015, to file their bill costs and motion for attorney’s

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fees.

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Dated this 14th day of October, 2015
_________________________________
______________________
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Jennifer A. Dorsey
er A. Dorsey
rs
United States District Judge
d
District Judge
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SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT (“Settlement Agreement”) is made as of this
16th day of July, 2015, by and among The Moapa Band of Paiute Indians, a federally recognized
Tribe of Indians (the “Moapa Paiutes”), and Sierra Club, a California non-profit corporation
(collectively, the “Plaintiffs”), and Nevada Power Company d/b/a NV Energy (“NPC”) and the
California Department of Water Resources (“CDWR”) (collectively, the “Defendants”). Each
of the Plaintiffs and Defendants may be referred to herein as a “Party” and collectively as the
“Parties.”
RECITALS
WHEREAS, the Plaintiffs, on the one hand, and the Defendants, on the other hand, are
counterparties in Moapa Band of Paiute Indians et al. v. Nevada Power Company et al., Case
No. 2:13-cv-01417-JAD-NJK, in the United States District Court for the District of Nevada (the
“Action”), pursuant to which Plaintiffs have brought certain claims against Defendants regarding
Defendants’ past and current operations at the Reid Gardner Generating Station (the “Reid
Gardner Site” or “Reid Gardner Plant”);
WHEREAS, there is an Administrative Order on Consent, into which NPC entered in
February 2008 (the “AOC”), which pertains to environmental investigation and remediation of
the Reid Gardner Site;
WHEREAS, the Parties desire to resolve their differences, settle the Action, effectuate
the dismissal with prejudice of the Action, and have the United States District Court for the
District of Nevada (the “Court”) approve and retain jurisdiction to enforce the terms of this
Settlement Agreement;
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants, promises, and
agreements contained herein, the dismissal of the Action, and for other good and valuable
consideration, the receipt, adequacy, and sufficiency of which are hereby expressly
acknowledged by the Parties hereto, the Parties do hereby agree as follows:
1.
Information Sharing: NPC commits to information sharing during the course of
investigation, characterization, determination of corrective actions, and post-closure monitoring
at the Reid Gardner Site. The principles of such an information-sharing framework are as
follows. Through the end of the AOC as determined by the date when the Nevada Division of
Environmental Protection (“NDEP”) signs a finalization or closure letter officially terminating
the AOC process, NPC will do the following:
(a)
NPC will be available to meet in person with Plaintiffs’ environmental
consultant(s) every quarter, as requested, to discuss progress of ongoing efforts under the AOC,
and near and long-term schedules for such investigation and remediation.
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(b)
As reasonably requested by Plaintiffs, NPC will arrange further periodic webbased or telephonic meetings to discuss significant “work-in-progress” issues of particular
significance under the AOC.
(c)
NPC will provide a copy to Plaintiffs of all AOC draft and final work plans, as
well as provide a copy of final, official correspondence requesting or receiving agency action or
direction regarding the AOC, that NPC submits to or receives from the Nevada Division of
Environmental Protection.
(d)
NPC will permit Plaintiffs’ consultants access to observe AOC-related
investigation, characterization, and corrective-action work in progress (e.g., well drilling, sample
collection, etc.), such observation to be of a reasonable nature and coordinated in advance with
NPC.
For a period of five (5) years following final closure of the AOC by NDEP, NPC will do
the following:
(e)
NPC will copy the Moapa Paiutes on official monitoring documentation that it
submits to NDEP.
2.
Commitment to Retire All Existing Reid Gardner Plant Coal Units: NPC agrees to
permanently close and retire Reid Gardner Unit 4 by December 31, 2017.
3.
Supplemental Environmental Project Payment: Defendants shall pay to the Moapa
Paiutes four million three-hundred thousand dollars ($4,300,000) (the “Supplemental
Environmental Project Payment”) for the following supplemental environmental projects, or
equivalent projects that the Moapa Paiutes may choose at their sole discretion. Plaintiffs assert
that the purpose of these projects, or any equivalent projects is to mitigate the harm and risk
associated with contamination of the Reid Gardner site, and Plaintiffs identify those projects and
their estimated costs as follows:
(a)
Community wellness center on the Moapa Paiute Indian Reservation. The
wellness center will include exercise facilities, day facilities for seniors, and facilities for
improving the nutritional status of reservation residents. Estimated cost: $1,500,000;
(b)
Purchase of water rights to mitigate risk to tribal rights pursuant to Paragraph 4
below. Estimated cost: $2,000,000 (the Parties agree that this estimate will not affect in any
way Paragraph 4 below);
(c)
Additional stationary and mobile air-quality monitoring equipment for the Moapa
Reservation; and technical assistance for air-quality monitoring. Estimated cost: $300,000;
(d)
Technical assistance for review of information and for implementing and
effectuating the provisions of Paragraph 1, above, related to Reid Gardner Plant closure.
Estimated cost: $400,000.
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4.
Opportunity to Purchase Water Rights Associated with Reid Gardner Plant: The Moapa
Paiutes will have the right, subject to the existing right of first refusal held by the Southern
Nevada Water Authority, to make a purchase of up to 500 acre-feet of the water rights associated
with the Reid Gardner Plant at market price, to be completed within eighteen (18) months of, or,
if arbitration as described below in Paragraph 4(c) occurs, as soon as possible after, the Effective
Date of this Settlement Agreement. In order to effectuate this process the Parties agree as
follows:
(a) Within thirty (30) days from the date the Court enters the proposed order approving
the Settlement Agreement and dismissing the claims in the Action with prejudice, as
described in detail in Paragraph 6, NPC shall furnish to the Moapa Paiutes in writing
a list of water rights, by permit number, held by NPC, which are currently associated
with or have a place of use specifying the Reid Gardner Plant. In addition, NPC shall
furnish the Moapa Paiutes a copy of the Cooperative Water Operation and
Management Agreement dated October 12, 2009, that establishes a first right of
refusal in favor of the Southern Nevada Water Authority.
(b) Within thirty (30) days from the date NPC furnishes the information described in
Paragraph 4(a) above, the Moapa Paiutes and NPC will schedule a date, to be held
within sixty (60) days from the date NPC furnishes the information described in
Paragraph 4(a) above, for representatives of the Moapa Paiutes and NPC to meet to
discuss the possible water-rights purchase. On the agreed-upon meeting date, at an
agreed location, such representatives of the Moapa Paiutes and NPC will meet and
discuss the possible purchase. At such meeting, the Moapa Paiutes agree to present
their request for water rights with as much detail as possible to allow NPC to evaluate
the possible purchase. At a minimum the Moapa Paiutes shall provide NPC with the
quantity of water to be purchased (up to a maximum of 500 acre-feet), and the stream
reach and/or hydrographic basin in which the point(s) of diversion is located. At such
meeting, NPC will provide such reasonable additional information in its possession
regarding status of water rights available in the location(s) identified by the Moapa
Paiutes. The Moapa Paiutes are responsible for conducting their own due diligence
with regard to the water rights. The goal of the meeting will be to identify up to 500
acre-feet of water rights that the Moapa Paiutes and NPC agree the Moapa Paiutes
may purchase (recognizing the ongoing operational needs of NPC)—subject to the
rights of first refusal held by the Southern Nevada Water Authority.
(c) Within thirty (30) days of the meeting between NPC and the Moapa Paiutes, the
Moapa Paiutes shall provide a notice to NPC in writing identifying the water rights
they wish to acquire from NPC. Within thirty (30) days of receiving such notice,
NPC will either accept the list provided by the Moapa Paiutes as the water rights to be
subject to acquisition as provided below, or NPC may counter-propose substitute
water rights, or temporary conditions or limitations on the water rights identified by
the Moapa Paiutes if NPC provides written, adequately supported evidence that
transfer of particular rights identified by the Moapa Paiutes would prejudice NPC’s
ability to reasonably operate the Reid Gardner plant prior to its closing, to support
reasonable remediation activities, or to support the ongoing operational needs of
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NPC. The Moapa Paiutes may not simply select NPC’s most senior 500 acre-feet of
water rights, and the Moapa Paiutes may not assert that NPC’s continuing water uses
necessary for operations, or NPC’s water uses necessary for remediation, are
interfering with the Moapa Paiutes’ own water uses. If NPC counter-proposes as
provided herein, then NPC and the Moapa Paiutes shall negotiate in good faith to
complete the identification of water rights to be acquired under this Settlement
Agreement, and shall complete such negotiations within thirty (30) days. If the NPC
and the Moapa Paiutes fail to reach agreement regarding the identity of such water
rights, or the conditions or limitations that might be imposed, either NPC or the
Moapa Paiutes may request binding arbitration before a JAMS arbitrator in Las
Vegas, Nevada in conformity with the JAMS Comprehensive Arbitration Rules &
Procedures, effective July 1, 2014. Such arbitrator’s decision shall be final and
binding on both NPC and the Moapa Paiutes regarding the identification of water
rights to be acquired under this Settlement Agreement and any additional conditions
or limitations to be imposed upon such rights. The arbitrator shall seek to identify
water rights consistent with the terms and considerations contained in this Settlement
Agreement. Other deadlines and procedures as described below shall follow such
final identification of such rights, by agreement and/or arbitration, and henceforth in
this Settlement Agreement, those rights are referred to as the “Water Rights.”
(d) Within thirty (30) business days of final identification of the Water Rights as
described in (c) above, the Moapa Paiutes and NPC will each submit to the other the
name of a professional, qualified, Nevada water-rights appraiser who is available to
appraise the Water Rights. The Moapa Paiutes and NPC each will pay the costs
associated with the work of the respective appraiser it submits. Each of those two
appraisers (together, the “Initial Appraisers”) then will be required to do the
following, at the joint direction of the Moapa Paiutes and NPC:
i.

Appraise the Water Rights at market value for similar water rights in Southern
Nevada in an arid desert climate, taking into account the stream reach and/or
hydrographic basin in which the Water Rights are located, the type of water
right (surface or groundwater), the available uses of the Water Rights, the
seniority of the Water Rights, the legal status of the Water Rights, the
marketability of the Water Rights, the uses to which the Water Rights can
legally and practically be applied, and any other factors the Initial Appraisers
believe relevant to their market-value analyses, which will be determined
solely by each appraiser.

ii.

Submit his or her appraisal and supporting analysis, along with a statement of
his or her qualifications, in writing, to both the Moapa Paiutes and NPC
within thirty (30) business days of the submission in writing of both Initial
Appraisers’ identities to the Moapa Paiutes and NPC.

iii.

If, based on the appraisal of the two Initial Appraisers, the Moapa Paiutes and
NPC can agree on a purchase price, no further action is necessary with respect
to establishing the purchase price, and the Moapa Paiutes and NPC shall
execute a purchase agreement, mutually acceptable to the Moapa Paiutes and
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NPC, documenting the purchase price and terms of closing consistent with the
terms of this Settlement Agreement.
iv.

If the Moapa Paiutes and NPC cannot agree on the purchase price, the Initial
Appraisers shall, within ten (10) business days of either the Moapa Paiutes or
NPC giving notice they have not agreed on a purchase price, identify and
agree upon a third professional, qualified, Nevada water-rights appraiser who
is available to appraise the Water Rights (the “Final Appraiser”). The
Moapa Paiute and NPC will evenly split the cost of the Final Appraiser.

(e) The Final Appraiser will evaluate each of the two Initial Appraisers’ appraisals,
conduct his or her own analysis based on those appraisals and, based on his or her
own experience and knowledge, make a final decision regarding market value of the
Water Rights based on the factors described above in 4(d)(i). He or she will provide
that final decision to the Moapa Paiutes and NPC within thirty (30) business days of
his or her selection by the Initial Appraisers.
i.

The decision of the Final Appraiser regarding market value will be a final,
non-appealable decision that both the Moapa Paiutes and NPC agree will
finally and forever establish the market price under this Settlement Agreement
for the Water Rights. Once this price is established, the Moapa Paiutes will
notify NPC in writing within ten (10) business days whether they agree to pay
such price for the Water-Rights, subject to the rights of first refusal of the
Southern Nevada Water Authority as provided in the Cooperative Water
Operation and Management Agreement dated October 12, 2009. If the Moapa
Paiutes do not accept the price established by the Final Appraiser NPC shall
have no further obligation with respect to offering the Water Rights to the
Moapa Paiutes.

(f) Within five (5) business days of receiving notice from the Moapa Paiutes pursuant to
4(e)(i), NPC, consistent with its contractual obligations with the Southern Nevada
Water Authority, will communicate with the Southern Nevada Water Authority to
advise them of the bona fide water rights purchase offer from the Moapa Paiutes and
provide the Southern Nevada Water Authority with an opportunity, pursuant to its
rights of first refusal, to purchase the Water Rights, as provided in the Cooperative
Water Operation and Management Agreement dated October 12, 2009.
(g) If the Southern Nevada Water Authority chooses to exercise its rights of first refusal
with respect to any portion of the Water Rights, NPC shall have no obligation to offer
any water rights to the Moapa Paiutes to replace those over which the Southern
Nevada Water Authority has exercised its rights of first refusal. If the Southern
Nevada Water Authority chooses to exercise its rights of first refusal with respect to
the entirety of the Water Rights, NPC shall have no further obligation to make any
water rights available to the Moapa Paiutes for purchase pursuant to Paragraph 4 of
this Settlement Agreement. If the Southern Nevada Water Authority chooses not to
exercise its rights of first refusal, thereby allowing the Moapa Paiutes to purchase the
Water Rights, then the Moapa Paiutes and NPC shall execute a purchase agreement,
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mutually acceptable to the Moapa Paiutes and NPC, documenting the purchase price
and terms of closing consistent with the terms of this Settlement Agreement, within
thirty (30) days of the Southern Nevada Water Authority’s decision, by which the
Moapa Paiutes will pay NPC an amount of money reflecting the purchase price as
established through the process described above.
(h) The Moapa Paiutes will be responsible for obtaining all permits, licenses or other
governmental authorizations necessary for the Moapa Paiutes to use the Water Rights
for Moapa Paiutes’ purposes. In addition, it will be the responsibility of the Moapa
Paiutes to confirm the Water Rights are of the quality and quantity necessary for their
purposes. NPC will convey to the Moapa Paiutes the right, title and interest NPC has
in the Water Rights through a quitclaim deed, without further warranty. The Moapa
Paiutes will be responsible for conducting such due diligence on the Water Rights as
the Moapa Paiutes deem necessary. NPC will reasonably cooperate to provide
information NPC can reasonably identify it has in its possession relating to the Water
Rights to the Moapa Paiutes, and NPC will execute any other documents reasonably
necessary to complete the transfer contemplated by this Settlement Agreement. NPC
is under no obligation pursuant to this Settlement Agreement to convey any water
related infrastructure, including but not limited to wells, pumps, casings, pipes or
tanks, to the Moapa Paiutes in connection with the conveyance of the Water Rights.
The Moapa Paiutes shall, within sixty (60) business days of closing on the purchase
of the Water Rights, file applications with the appropriate Nevada governmental
agency to modify, at a minimum, the point of diversion and place of use so that the
point of diversion is not from any NPC- controlled, owned, or operated point of
diversion and the place of use does not include any land owned, leased, or otherwise
controlled by NPC. Nothing in this Settlement Agreement grants the Moapa Paiutes
the right to access or the use of any NPC water infrastructure, point of diversion, or
place of use associated with any water rights, including the Water Rights, even if such
water rights are owned by the Moapa Paiutes. NPC agrees that it will not oppose and
will provide any material aid necessary for modification applications filed in
connection with the purchase of Water Rights under this Paragraph 4, so long as such
applications are filed consistent with the terms of this Settlement Agreement and do
not interfere with NPC’s use of its existing water rights or NPC operations.
5.
Attorneys’ Fees and Costs: The Parties agree that no later than the deadline prescribed
by the Federal Rules of Civil Procedure, or such other date as the Court may set, Plaintiffs will
submit an application for attorneys’ fees and costs incurred with respect to the Action to the
Court, which Defendants shall have the opportunity to oppose. Plaintiffs’ ability to submit an
application for attorneys’ fees and costs and the Court’s ability to award fees will not be affected
by the release in Paragraph 8 of this Settlement Agreement.
6.
Dismissal of the Claims Asserted in the Action with Prejudice and Notice to the DOJ and
EPA: The Parties recognize that the proposed order and settlement of the Clean Water Act claim
in the Action require notice to the United States Department of Justice (“DOJ”) and the United
States Environmental Protection Agency (“EPA”). Accordingly, after execution of this
Settlement Agreement, Plaintiffs, with the approval of all Parties, will submit to the DOJ and
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EPA as required by 33 U.S.C. § 1365(c) and 40 C.F.R. § 135.5 the following: (a) the Settlement
Agreement, (b) a motion for approval of the Settlement Agreement by the Court, and for
dismissal of the claims asserted in the Action with prejudice, (c) a proposed order of the Court
incorporating the terms of the Settlement Agreement and the dismissal of the claims asserted in
the Action with prejudice, which proposed order is attached hereto as Exhibit 1. This Settlement
Agreement shall be effective as of the date of entry of the proposed order included as Exhibit 1
(the “Effective Date”). If the Court does not enter the proposed order in the form of Exhibit 1
or a substantially similar form containing all substantive elements of the proposed order, this
Settlement Agreement shall be null and void, and Plaintiffs may request the return of this matter
to the Court’s trial calendar.
7.
Payment of the Supplemental Environmental Project Payment: Within seven (7) days
after the entry of an order in the form included as Exhibit 1 or a substantially similar form, the
Defendants shall remit the Supplemental Environmental Project Payment to the Moapa Paiutes
via wire transfer.
8.
Release: The Moapa Paiutes and the Sierra Club will pursuant to the Federal Rules of
Civil Procedure dismiss with prejudice the claims asserted in the Action, subject to all federal
rules and case law applicable to such dismissal.
9.
No Outstanding or Known Future Claims or Causes of Action: Each Party affirms that it
has not currently filed with any governmental agency or court any type of action or report against
any other Party other than the Action.
10.
No Admission of Liability: The Parties to this Settlement Agreement understand and
acknowledge that this Settlement Agreement constitutes a compromise of the claims alleged in
the Action, and that nothing herein constitutes an admission by any Party of the merit of any
claim or dispute, or any fault or liability, whatsoever in connection with the Action.
11.
Notice: All notices required or permitted under or pertaining to this Settlement
Agreement shall be in writing and delivered by any method providing proof of delivery. Any
notice shall be deemed to have been given on the date of receipt. Notices shall be delivered to
the Parties at the following addresses until a different address has been designated by notice to
the other Parties:
TO NEVADA POWER COMPANY:
NV Energy
Office of the General Counsel
6226 W. Sahara Avenue
Las Vegas, NV 89146

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TO CALIFORNIA DEPARTMENT OF WATER RESOURCES:
Mark Andersen
Assistant Deputy Director, State Water Project
California Department of Water Resources
1416 9th Street, Room 1640 H10
P.O. Box 942836
Sacramento, CA 94236-0001
Linda Ackley
Attorney
Office of the Chief Counsel
California Department of Water Resources
1416 9th Street, Suite 1104
P.O. Box 942836
Sacramento, CA 94236-0001
TO THE MOAPA BAND OF PAIUTE INDIANS:
1 Lincoln Street
P.O. Box 340
Moapa, NV 89025
Attn: Tribal Chair
TO THE SIERRA CLUB:
Sierra Club Environmental Law Program
85 Second St, second floor
San Francisco, CA 94105
Attn: Coordinating Attorney, Gloria D. Smith, Andrea Issod
12.
Entire Agreement: This Settlement Agreement constitutes and represents the entire
agreement between the Parties with respect to the claims that are the subject of this Settlement
Agreement, and supersedes all prior understandings, negotiations, and agreements in connection
therewith. This Settlement Agreement shall not be altered or amended in any manner except in a
writing signed by each of the Parties.
13.
Enforceability: The Parties understand and agree that this document is binding and
enforceable. The Court will retain jurisdiction to enforce the Settlement Agreement. The parties
understand and agree that money damages will not be available for breach of this Settlement
Agreement.
14.
Construction: The Parties have participated jointly in the negotiation and preparation of
this Settlement Agreement. In the event of an ambiguity in or dispute regarding the
interpretation of the same, interpretation of this Settlement Agreement shall not be resolved by
any rule providing for interpretation against the Party who causes the uncertainty or against the
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drafter, and all Parties expressly agree that in the event of an ambiguity or dispute regarding the
meaning or interpretation of any provision of this Settlement Agreement, the Settlement
Agreement will be interpreted as if each Party hereto participated in the drafting hereof.
15.
Representation of Counsel: The Parties hereto acknowledge and agree that each has been
given the opportunity to review independently this Settlement Agreement with legal counsel, and
each Party agrees to the particular language of the provisions hereof. Each Party has consulted
with legal counsel before executing this Settlement Agreement, has had such legal counsel
explain the meaning and effect of this Settlement Agreement, and has relied upon its own
judgment in executing this Settlement Agreement with full knowledge of the meaning and effect
of this Settlement Agreement.
16.
Successors and Assigns: This Settlement Agreement shall be binding upon and inure to
the benefit of the Parties hereto and their respective heirs, executors, administrators, successors,
and assigns. Each of the Parties is an intended beneficiary of this Settlement Agreement and is
and shall be expressly entitled to enforce this Settlement Agreement in so far as it operates in his,
her, or its favor, including by injunctive or other equitable relief or other means, as appropriate.
17.
Severability: The provisions of this Settlement Agreement are intended to be severable.
Any term or provision of this Settlement Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms
and provisions hereof or the validity or enforceability of the offending term or provision in any
other situation or in any other jurisdiction. To the extent that any court concludes that any
provision of this Settlement Agreement is void or voidable, the court shall reform such provision
to render the provision enforceable, but only to the extent absolutely necessary to render the
provision enforceable.
18.
Authorization: The undersigned individuals executing this Settlement Agreement on
behalf of their respective Parties represent and warrant that they are authorized to enter into and
execute this Settlement Agreement on behalf of such Parties, that the appropriate corporate
resolutions or other consents, including an official authorization by the Moapa Paiutes’ tribal
council, have been passed or obtained, and that this Settlement Agreement shall be binding on
the Parties. The Moapa Paiutes represent and warrant that they do not need or require the
approval of the Bureau of Indian Affairs to enter into this Settlement Agreement.
19.
Governing Law: To the extent required, this Settlement Agreement shall be construed
and interpreted in accordance with the laws of the State of Nevada. Should any dispute arise
regarding this Settlement Agreement, venue shall be in the United States District Court for the
District of Nevada in Las Vegas.
20.
Counterparts: This Settlement Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which taken together
shall constitute one and the same instrument. A counterpart shall include a PDF, scan or
facsimile of the Settlement Agreement.

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21.
Amendment and Waiver: No amendment of any provision of this Settlement Agreement
shall be valid unless the same shall be in writing and signed by each of the Parties. No waiver by
any Party hereto of any default, misrepresentation, or breach of covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent default,
misrepresentation, or breach of covenant hereunder, or affect in any way any rights arising by
virtue of any prior or subsequent such occurrence. No failure on the part of any Party hereto to
exercise, and no delay in exercising, any right, power, or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of such right, power, or remedy by such
Party preclude any other or future exercise thereof or the exercise of any other right, power, or
remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies
provided by applicable law.
22.
Headings: The division of this Settlement Agreement into paragraphs, sections,
subparagraphs, and subsections and the insertion of headings are for convenience of reference
only and shall not affect the construction or interpretation of this Settlement Agreement. The
paragraph, section, subparagraph, and subsection headings in this Settlement Agreement are not
intended to be full or precise descriptions of the text to which they refer and are not to be
considered part of this Settlement Agreement.
23.

Miscellaneous:

(a)
The Parties intend that the execution and performance of this Settlement
Agreement shall, as provided above, be effective as a full and final settlement of, and as a bar to,
the claims dismissed pursuant to Paragraph 8. The Parties hereto covenant and agree that if they
hereafter discover facts different from or in addition to the facts that they now know or believe to
be true with respect to the claims dismissed pursuant to Paragraph 8, it is nevertheless their intent
hereby to settle and release fully and finally the claims dismissed pursuant to Paragraph 8. In
furtherance of such intention, the Release in Paragraph 8 herein shall be and will remain in effect
as a release notwithstanding the discovery of any such different or additional facts.
(b)
Each Party agrees to execute and deliver such other documents and instruments
and to take such further action as may be reasonably necessary to fully carry out the intent and
purposes of this Settlement Agreement.

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

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Exhibit 1
To Proposed Settlement
Agreement

ROBERT B. WIYGUL, ESQ. (pro hac vice)
Waltzer Wiygul & Garside, LLC
1011 Iberville Drive
Ocean Springs, MS 39564
Tel: [phone]
Fax: [phone]
[e-mail]
Counsel for Plaintiffs
ANDREW C. LILLIE (pro hac vice)
JESSICA BLACK LIVINGSTON (pro hac vice)
Hogan Lovells US LLP
1200 17th Street, Suite 1500
Denver, CO 80202
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Counsel for Defendant Nevada Power Co.
ANDREW K. GORDON (pro hac vice)
Duane Morris LLP
One Market Plaza, Suite 2200
San Francisco, CA 94105
Phone: [phone]
Fax: [phone]
[e-mail]
Counsel for Defendant California Department of Water Resources
Additional counsel on signature page

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA

1

THE MOAPA BAND OF PAIUTE
INDIANS, a federally recognized Tribe of
Indians,
and
SIERRA CLUB, a California non-profit
corporation,
Plaintiffs,
vs.
NEVADA POWER CO., d/b/a NV
ENERGY,
and
CALIFORNIA DEPARTMENT OF
WATER RESOURCES
Defendants.

) Case No. 2:13-cv-01417-JAD-NJK
)
) AGREED ORDER ON MOTION TO
) APPROVE SETTLEMENT AND DISMISS
) CLAIMS WITH PREJUDICE
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

AGREED ORDER ON MOTION TO APPROVE SETTLEMENT
AND DISMISS CLAIMS WITH PREJUDICE
This matter comes before the Court on the parties’ Joint Motion to Approve Settlement
Agreement. The Court, having reviewed the proposed settlement, the joint motion, and the
pleadings, and being fully advised in the premises, finds as follows:
1. The Court has jurisdiction of this matter.
2. This case is a citizen suit under the federal Clean Water Act, 33 U.S.C. §§1251 et seq,
(“CWA”) and the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.
(“RCRA”).
3. Notice of the proposed Settlement Agreement pursuant to 33 U.S.C. § 1365(c) and 40
C.F.R. § 135.5 was given to the United States Department of Justice and the United States
Environmental Protection Agency on __________, 2015. The Department of Justice and the
2

Environmental Protection Agency submitted comments to the Court on _____________.
4. The settlement is appropriate for approval under the CWA and the RCRA.
5. The parties shall comply with the terms of their Settlement Agreement entered into on
July 16, 2015, a copy of which is attached and incorporated by reference as if fully set forth
herein.
6. The claims asserted in this action are dismissed with prejudice. The Court expressly
retains jurisdiction over the matter for the purposes of (i) enforcing the Settlement Agreement
entered into between the parties and the terms of the Settlement Agreement incorporated herein
by reference, and (ii) deciding any applications for attorney fees and costs.
SO ORDERED this ___ day of __________, 2015.

_______________________________
UNITED STATES DISTRICT JUDGE

3

Submitted by:
s/ Robert B. Wiygul
ROBERT B. WIYGUL, ESQ. (pro hac vice)
Waltzer Wiygul & Garside, LLC
1011 Iberville Drive
Ocean Springs, MS 39564
Tel: [phone]
Fax: [phone]
[e-mail]
Counsel for Plaintiffs

s/ Gloria D. Smith
GLORIA D. SMITH, ESQ. (pro hac
vice)
California Bar No. 200824
Sierra Club Environmental Law
Program
85 Second Street
San Francisco, CA 94105
[phone]/ Fax: [phone]
[e-mail]
Counsel for Plaintiff Sierra Club

s/ Christopher W. Mixson
CHRISTOPHER W. MIXSON, ESQ.
WOLF, RIFKIN, SHAPIRO, SCHULMAN &
RABKIN, LLP
Nevada Bar No. 10685
3556 E. Russell Road, Second Floor
Las Vegas, Nevada 89120
[phone]/Fax: [phone]
[e-mail]
Local Counsel for Plaintiffs

s/ Andrew C. Lillie
ANDREW C. LILLIE (pro hac vice)
JESSICA BLACK LIVINGSTON (pro
hac vice)
Hogan Lovells US LLP
1200 17th Street, Suite 1500
Denver, CO 80202
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Counsel for Defendant Nevada Power
Co.

s/ Andrew K. Gordon
ANDREW K. GORDON (pro hac vice)
Duane Morris LLP
One Market Plaza, Suite 2200
San Francisco, CA 94105
Phone: [phone]
Fax: [phone]
[e-mail]
Counsel for Defendant California Department of
Water Resources

Kamala D. Harris
ATTORNEY GENERAL OF
CALIFORNIA
Annadel A. Almendras
Supervising Deputy Attorney General
s/ Gary Alexander
Nhu Q. Nguyen
Deputy Attorneys General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
T: 415.703.5599; F: 415.703.5480
[e-mail]
Counsel for Defendant California
Department of Water Resources

4