National Wildlife Federation et al v. National Marine Fisheries Service et al

Filing 1889

ORDER - The Joint Stipulation and Order to Settle Plaintiffs' Second Application for an Award of Attorneys' Fees and Costs 1427 is GRANTED. Signed on 3/19/12 by Judge Michael H. Simon. Associated Cases: 3:01-cv-00640-SI, 3:05-cv-00023-SI (mja)

S. AMANDA MARSHALL
United States Attorney
STEPHEN J. ODELL, OSB #90353
Assistant United States Attorney
District of Oregon
600 United States Courthouse
1000 S.W. Third Avenue
Portland, OR 97204-2902
Tel: [phone]
IGNACIA S. MORENO
Assistant Attorney General
SETH M. BARSKY, Section Chief
COBY HOWELL, Trial Attorney
MICHAEL R. EITEL, Trial Attorney
U.S. Department of Justice
Environment & Natural Resources Division
Wildlife & Marine Resources Section
999 18th Street, South Terrace, Suite 370
Denver, Colorado 80202
Tel: [phone] / Fax: [phone]
Attorneys for Federal Defendants
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
NATIONAL WILDLIFE FEDERATION, et al.,
Case No.: 3:01-CV-00640-SI
Plaintiffs,
v.
NATIONAL MARINE FISHERIES SERVICE, et
al.,
Defendants,

JOINT STIPULATION AND
xxxxxxxxxx ORDER TO
[PROPOSED]
SETTLE PLAINTIFFS’
SECOND APPLICATION
FOR AN AWARD OF
ATTORNEYS’ FEES AND
COSTS

This Stipulated Settlement Agreement (hereinafter, “Agreement”) is made between
Plaintiffs, National Wildlife Federation, Idaho Wildlife Federation, Washington Wildlife
Federation, Sierra Club, Trout Unlimited, Pacific Coast Federation of Fishermen’s Associations,
Institute For Fisheries Resources, Idaho Rivers United, Idaho Steelhead And Salmon United,
Northwest Sport Fishing Industry Association, Salmon For All, Columbia Riverkeeper,
American Rivers, Inc., Federation of Fly Fishers, and NW Energy Coalition (collectively,
“Plaintiffs”), and Federal Defendants, the National Marine Fisheries Service, the U.S. Army
Corps of Engineers, and the Bureau of Reclamation (collectively, “Federal Defendants”).
WHEREAS, on November 30, 2004, Federal Defendants filed a Notice of Release of
Defendant NOAA Fisheries’ Final Biological Opinion on Remand (Dkt. 648);
WHEREAS, Plaintiffs filed a Second Supplemental Complaint for Declaratory and
Injunctive Relief on December 30, 2004 (Dkt. 652) and a Third Supplemental Complaint for
Declaratory and Injunctive Relief on March 21, 2005 (Dkt. 833);
WHEREAS, on May 26, 2005, the Court issued an opinion and order granting Plaintiffs’
Motion for Summary Judgment (Dkt. 986);
WHEREAS, on June 10, 2005, the Court issued an Opinion and Order re Motion for
Preliminary Injunction (Dkt. 1015);
WHEREAS, on September 26, 2005, the Ninth Circuit in NWF v. NMFS, No. 05-35570
(9th Cir.), issued its Mandate affirming and remanding the District Court’s June 10, 2005
Opinion and Order (Dkt. 1080);
WHEREAS, on October 7, 2005, the Court issued an Opinion and Remand Order (Dkt.
1087);
WHEREAS, on December 29, 2005, the Court issued an Opinion and Order on Plaintiffs’
Motion for Further Injunctive Relief (Dkt. 1221);
WHEREAS, on May 5, 2008, Federal Defendants filed a Notice of Completion of
Remand (Dkt. 1425);

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WHEREAS, on June 4, 2008, Plaintiffs filed a second motion for attorneys’ fees and
costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, and the Endangered Species
Act, 16 U.S.C. § 1540(g) (Dkt. 1427), and Plaintiffs and Federal Defendants concurrently
stipulated to defer further briefing on that motion to allow for settlement discussions and
conserve the parties resources (Dkt. 1428);
WHEREAS, on September 10, 2008, the Ninth Circuit in NWF v. NMFS, Nos. 06-35011,
06-35019 (9th Cir.), issued its Mandate on the appeal of the Court’s May 26, 2005 Order (Dkt.
1487);
WHEREAS, on October 2, 2008, the Ninth Circuit granted Plaintiffs’ motion to transfer
consideration of its motion for fees and costs to the District Court;
WHEREAS, Plaintiffs have provided Federal Defendants with its contemporaneous time
records and other information for their claim for attorneys’ fees and costs, and counsel for
Plaintiffs and Federal Defendants (“Parties”) have engaged in good faith, confidential settlement
negotiations concerning Plaintiffs’ claims for attorneys’ fees and costs;
WHEREAS, the Parties have reached an agreement as to an appropriate settlement of
Plaintiffs’ claims for fees and costs and agree that settlement of this action in this manner is in
the public interest and is an appropriate way to resolve Plaintiffs’ claims for fees and costs; and
WHEREAS, the Parties enter the Agreement below without any admission of fact or law,
or waiver of any claims or defenses, factual or legal, except as specified in the Agreement;
NOW THEREFORE, in the interests of judicial economy and to avoid further litigation
over Plaintiffs’ claims for attorneys’ fees and costs, Plaintiffs and Federal Defendants, for good
and valuable consideration, the adequacy of which is hereby acknowledged, stipulate and agree
as follows:
1.

Subject to the provisions of Paragraph 4, below, Federal Defendants agree to

settle all of Plaintiffs’ claims for attorneys’ fees and costs related to the challenge of NMFS’s
2004 FCRPS Biological Opinion through May 5, 2008, and for any claims for fees and costs

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incurred in the Ninth Circuit Court of Appeals through October 2, 2008, in the above-captioned
litigation for a total amount of $940,000.00.
2.

Plaintiffs agree to accept payment of $940,000.00 in the manner prescribed in

Paragraph 3, below, in full satisfaction of any and all claims for attorneys’ fees and costs through
and including the date of May 5, 2008, and for any claims for fees and costs incurred in the
Ninth Circuit Court of Appeals through and including October 2, 2008, that are related to the
above-captioned litigation.
3.

Federal Defendants agree to issue a check in the amount of $940,000.00 or, as

appropriate, make a wire transfer of the specified amount to: Earthjustice, 705 Second Avenue,
Suite 203, Seattle, WA 98104. Federal Defendants agree to submit all necessary paperwork to
funding authorities at the Department of Treasury within thirty (30) business days of receipt of
the signed court order approving this Stipulation.
4.

This Agreement does not apply to any claims for fees and costs that may arise

from work after May 5, 2008, in the District Court, or after October 2, 2008, in the Ninth Circuit
Court of Appeals, if any, in the above-captioned litigation. The Parties agree that should
Plaintiffs seek fees and costs for work in this case after these dates, this Agreement is without
prejudice to Plaintiffs’ right to seek such fees and costs and likewise is without prejudice to the
right of the Federal Defendants to oppose such a request on any basis other than the existence of
this Agreement. Federal Defendants reserve all arguments and defenses with respect to any such
future fee application.
5.

This Agreement shall apply to and be binding upon the Parties, their members,

delegates, and assigns. The undersigned representatives of the Parties certify that they are fully
authorized to enter into the terms and conditions of this Agreement and to legally bind the Parties
to it. Plaintiffs and their attorneys agree to hold Federal Defendants harmless in any litigation,
further suit, or claim arising between Plaintiffs and their attorneys from the payment of the
agreed-upon settlement amount pursuant to this Agreement.

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6.

This Agreement is executed solely for the purpose of compromising and settling

Plaintiffs’ claims for attorneys’ fees and costs in the above-captioned case. Nothing in this
Agreement shall constitute, or be construed to constitute, a precedent in any other context.
Nothing in this Agreement shall be cited in any other litigation except as necessary to enforce the
terms of the Agreement. By this Agreement, Federal Defendants do not waive any right to
contest fees or costs claimed by Plaintiffs or Plaintiffs’ counsel in any future litigation, and
Plaintiffs do not waive any right to claim such fees or costs in any future litigation.
7.

Any obligations of the United States to expend funds under this Agreement are

subject to the availability of appropriations in accordance with the Anti-Deficiency Act, 31
U.S.C. § 1341. This Agreement shall not be construed to require the United States to obligate or
pay funds in contravention of said Anti-Deficiency Act, 31 U.S.C. § 1341, or any other
applicable appropriations law.
8.

This Agreement represents the entirety of the Parties’ commitments with regard to

settlement of attorneys’ fees and costs in the above-captioned case. The terms of this Agreement
shall become effective upon approval by this Court of this Agreement.
9.

In an electronic mail dated March 16, 2012, counsel for Plaintiffs, Stephen

Mashuda, authorized Michael R. Eitel, counsel for Federal Defendants, to sign this joint
stipulation and enter it in the CM/ECF system.
IT IS SO STIPULATED.
Dated this 16th day of March, 2012.
S. AMANDA MARSHALL
United States Attorney
STEPHEN J. ODELL, OSB #90353
Assistant United States Attorney
District of Oregon
600 United States Courthouse
1000 S.W. Third Avenue
Portland, OR 97204-2902
Tel: [phone]
IGNACIA S. MORENO
Assistant Attorney General
SETH M. BARSKY, Section Chief

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COBY HOWELL, Trial Attorney
/s/ Michael R. Eitel
MICHAEL R. EITEL, Trial Attorney
U.S. Department of Justice
Environment & Natural Resources Division
Wildlife & Marine Resources Section
999 18th Street, South Terrace, Suite 370
Denver, Colorado 80202
Tel: [phone] / Fax: [phone]
Attorneys for Federal Defendants
Dated this 16th day of March, 2012.
TODD D. TRUE (WSB #12864)
[e-mail]
/s/ Michael R. Eitel, for
STEPHEN D. MASHUDA (WSB #36968)
[e-mail]
Earthjustice
705 Second Avenue, Suite 203
Seattle, WA 98104
[phone]
[phone] [FAX]
DANIEL J. ROHLF (OSB #99006)
[e-mail]
Pacific Environmental Advocacy Center
10015 S.W. Terwilliger Boulevard
Portland, OR 97219
[phone]
[phone] [FAX]
Attorneys for Plaintiffs
ORDER
The Court hereby approves and orders each and every term of this Stipulated Settlement
Agreement. IT IS SO ORDERED.

19th
March
Dated this _______ day of ______________, 2012.

___________________________
/s/ Michael H. Simon
The Honorable Michael H. Simon
United States District Court Judge

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CERTIFICATE OF SERVICE
I certify that on March 12, 2012, the foregoing will be electronically filed with the
Court’s electronic filing system, which will generate automatic service upon on all Parties
enrolled to receive such notice. The following will be manually served by overnight mail:
Dr. Howard F. Horton, Ph.D.
U.S. Court Technical Advisor
Professor Emeritus of Fisheries
Department of Fisheries and Wildlife
104 Nash Hall
Corvallis, Oregon, 97331-3803
Tel: [phone] / Fax: [phone]
Email: [e-mail]

Walter H. Evans, III
Schwabe, Williamson, Wyatt, P.C.
1211 S.W. Fifth Ave
1600-1800 Pacwest Center
Portland, OR 97204
Tel: [phone]
Email: [e-mail]

/s/ Michael R. Eitel

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