Northwest Environmental Advocates v. United States Environmental Protection Agency
Filing
96
STIPULATION AND ORDER of Dismissal re parties' 93 Stipulated Motion; resolving the First and Second Claims for Relief, as well as parts of the Third and Fourth Claims for Relief, raised in the First Amended Complaint, signed by Judge Ricardo S. Martinez. (SWT)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
NORTHWEST ENVIRONMENTAL
ADVOCATES,
Plaintiff,
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Defendant,
and
NORTHWEST PULP & PAPER ASS’N,
et al.
Defendant-Intervenors
)
)
)
)
)
)
)
No. C14-196 RSM
)
)
STIPULATED ORDER OF DISMISSAL
)
)
)
)
)
)
)
)
WHEREAS, Northwest Environmental Advocates (“Plaintiff”) filed the above-entitled
lawsuit against the U.S. Environmental Protection Agency (“EPA”) on February 10, 2014, and a
First Amended Complaint on September 1, 2015 (Dkt. 54);
WHEREAS, the State of Washington Department of Ecology (“Washington”) intervened
in this action on March 30, 2015 (Dkt. 38);
WHEREAS, Plaintiff’s First Amended Complaint asserts that certain EPA decisions,
dated February 11, 2008, and May 14, 2008, approving and making other determinations under
33 U.S.C. § 1313(c) regarding Washington’s submissions of specific changes to its water quality
standards, were inconsistent with the federal water quality standards regulations and the Clean
STIPULATED ORDER OF PARTIAL DISMISSAL
No. 2:14-cv-0196-RSM
601 D Street NW
Washington, D.C. 20044-7611
(202) 514-8293
Water Act (“CWA”), were arbitrary, capricious and otherwise contrary to law, or were made
without the requisite consultations under section 7 of the Endangered Species Act (“ESA”); that
EPA failed to reinitiate consultation under section 7 of the ESA with respect to certain decisions
made on February 11, 2008; and furthermore that EPA has failed to act on certain water quality
standards submitted by Washington in 2003 and 2006;
WHEREAS, Plaintiff, EPA, and Washington (collectively referred to as “the Parties”)
have agreed to resolve certain counts contained in the First Amended Complaint in the abovecaptioned case; and
WHEREAS, the Parties and their respective counsel consent and enter into this
Stipulated Order of Partial Dismissal (“Stipulated Dismissal”) to resolve the First and Second
Claims for Relief, as well as parts of the Third and Fourth Claims for Relief, raised in the First
Amended Complaint without trial, adjudication, or admission of any issue of fact or law with
respect to Plaintiff’s claims and allegations and without admission of any fact, allegations, or
legal argument contained in Plaintiff’s First Amended Complaint in this action.
NOW, THEREFORE, THE PARTIES STIPULATE AS FOLLOWS:
1. Within three years of the Court’s entry of this Stipulated Dismissal, EPA will
complete an effects determination pursuant to 50 C.F.R. § 402.14(a) for its approval of
Washington’s December 8, 2006 submission of revisions to the State’s ammonia criteria and, as
appropriate, request initiation of any necessary ESA section 7 consultation with the U.S. Fish
and Wildlife Service and/or the National Marine Fisheries Service. Provided, however, that if
Washington submits revisions to the ammonia criteria for EPA’s review pursuant to CWA
section 303(c) and EPA proposes to approve such revisions, then EPA will instead, within one
year of such submission or within three years of the Court’s approval of this Stipulated
Dismissal, whichever date is later, complete an effects determination for its proposed approval of
Washington’s submission of revised ammonia criteria (rather than the criteria approved by EPA
on February 11, 2008) and will, as appropriate, request initiation of any necessary ESA section 7
STIPULATED ORDER OF PARTIAL DISMISSAL
No. 2:14-cv-0196-RSM
601 D Street NW
Washington, D.C. 20044-7611
(202) 514-8293
consultation with the U.S. Fish and Wildlife Service and/or the National Marine Fisheries
Service.
2. Within three years from the effective date of this Stipulated Order, Washington will
take the following actions:
a.
Washington will propose a change that removes WAC 173-201A-200(1)(c)(ii)(B)
and 173-201A-210(1)(c)(ii)(B) from Washington’s water quality standards provisions.
Washington will issue a final rule no later than one year after its proposed rule;
b.
Washington will propose a criterion for fine sediments to protect salmonid redds.
Washington will issue a final rule no later than one year after its proposed rule. If the proposed
rule is a narrative criterion, Washington will concurrently issue draft guidance regarding how it
will interpret and apply its fine sediment criterion, including, but not limited to, its use in
establishing Washington’s CWA section 303(d) list and, no later than 18 months following
issuance of the final rule, issue final guidance; and
c.
Washington will propose a change to amend footnote dd to Table 240(3) to state
that an adjustment of metals criteria pursuant to footnote dd requires approval by EPA pursuant
to 33 U.S.C. § 1313(c). Washington will issue a final rule no later than one year after its
proposed rule.
3. Upon entry of this Stipulated Dismissal by the Court, the First and Second Claims
alleging ESA violations, as well as the portions of the Third Claim related to WAC 173-201A200(1)(c)(ii)(B), 173-201A-210(1)(c)(ii)(B), and WAC 173-204, Part V, and the portion of the
Fourth Claim related to WAC 173-201A-210(1)(c)(ii), WAC 173-201A-200(1)(e)(i) and WAC
173-201A-210(1)(e)(i) alleging CWA violations, in Plaintiff’s First Amended Complaint against
EPA, along with the corresponding requests for relief for such claims, are hereby dismissed with
prejudice. Notwithstanding the dismissal of these claims, however, the parties hereby stipulate
that the Court shall retain jurisdiction to oversee compliance with the terms of this Stipulated
Dismissal, modify its terms as described in paragraph 5, and resolve any disputes concerning its
STIPULATED ORDER OF PARTIAL DISMISSAL
No. 2:14-cv-0196-RSM
601 D Street NW
Washington, D.C. 20044-7611
(202) 514-8293
implementation until the obligations in paragraphs 1 and 2 of this Stipulated Dismissal are
completed. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994).
4. Plaintiff also hereby forever releases, discharges, and covenants not to assert against
EPA (by way of the commencement of an action, the joinder of EPA in an existing action or in
any other fashion) any and all claims, causes of action, suits or demands of any kind whatsoever
in law or in equity, that Plaintiff may have had, or may now or hereafter have, against EPA based
upon the same transactions or occurrences that are at issue in the First and Second Claims for
Relief, and portions of the Third and Fourth Claims for Relief addressed in this Stipulated
Dismissal, in the First Amended Complaint. Nothing in this Stipulated Dismissal is intended to
waive or affect the claims the Court dismissed from this case in its July 2, 2015 Order, Dkt. 51,
or the Third and Fourth Claims for Relief (except as provided in Paragraph 3 above) in the First
Amended Complaint. NWEA reserves the right to appeal the Court’s July 2, 2015 Order, Dkt.
51. Nothing in this Stipulated Dismissal shall affect Plaintiff’s right to challenge EPA’s
December 18, 2015 decision regarding WAC 173-204, Part V.
5. The Order entering this Stipulated Dismissal 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 any party seeks to modify the terms of this
Stipulated Dismissal or in the event of a dispute arising out of or relating to this Stipulated
Dismissal, or in the event that any party believes that another party has failed to comply with any
term or condition of this Stipulated Dismissal, the party seeking the modification, raising the
dispute, or seeking enforcement shall provide the other party with notice of the claim. The party
raising the dispute shall commence an informal dispute resolution period to be no shorter than 30
days or other reasonable time under the circumstances, by giving written notice to the other party
stating the nature of the matter to be resolved and the position of the party asserting the
controversy. The Parties agree that they will meet and confer (either telephonically or in-person)
STIPULATED ORDER OF PARTIAL DISMISSAL
No. 2:14-cv-0196-RSM
601 D Street NW
Washington, D.C. 20044-7611
(202) 514-8293
at the earliest possible time during the informal dispute resolution period in a good faith effort to
resolve the claim before seeking relief from the Court. If the parties are unable to resolve the
claim themselves, any party may seek relief from the Court.
6. In the event that Plaintiff believes that EPA or Washington has failed to comply with a
term of this Stipulated Dismissal and has not sought to modify it, Plaintiff’s first remedy shall be
a motion to enforce the terms of this Stipulated Dismissal. Plaintiff shall not institute a
proceeding for contempt of court or request an order to show cause why EPA or Washington
should not be held in contempt unless and until Plaintiff demonstrates in such a request and
proceeding that EPA or Washington is in violation of a separate Court Order resolving a motion
by Plaintiff to enforce the terms of this Stipulated Dismissal.
7. Plaintiff reserves any claims for recovery of its attorneys’ fees and costs through and
including the date the Court approves this Stipulated Dismissal, incurred in connection with the
First and Second Claims for Relief in the First Amended Complaint.
8. Plaintiff reserves the right to seek an award for reasonable attorneys’ fees and
costs incurred after approval of this Stipulated Dismissal in connection with any disagreement
between the Parties concerning the interpretation, proposed modification, or performance of any
aspect of this Stipulated Dismissal. By entering this Stipulated Dismissal, EPA does not waive
any right to contest fees claimed by Plaintiff, including the hourly rate.
9. Any notice required or made with respect to this Stipulated Dismissal shall be in
writing. Notice shall be deemed to be given and received on the date received by facsimile or email transmission, if such notice is given by facsimile or e-mail transmission to all recipients
between 9:00 a.m. and 5:00 p.m. Eastern Standard Time or Eastern Daylight Time, as applicable,
on a business weekday. If notice is given by facsimile or e-mail transmission after 5:00 p.m. on
a weekday or on a weekend day, notice shall be deemed received on the next business day. For
any matter relating to this Stipulated Dismissal, the contact persons are:
STIPULATED ORDER OF PARTIAL DISMISSAL
No. 2:14-cv-0196-RSM
601 D Street NW
Washington, D.C. 20044-7611
(202) 514-8293
For Plaintiff:
Allison LaPlante
Earthrise Law Center
Lewis & Clark Law School
10015 SW Terwilliger Blvd.
Portland, OR 97219
(503) 768-6894 (tel)
(503) 768-6671 (fax)
laplante@lclark.edu
For the United States, on behalf of EPA:
Alexander Fidis
Office of Regional Counsel
U.S. Environmental Protection Agency
1200 Sixth Ave, Suite 900
M/S ORC-113
Seattle, WA 98101
Associate General Counsel, Water Law Office
Office of General Counsel, 2355A
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460
John H. Martin
U.S. DEPARTMENT OF JUSTICE
Environmental & Natural Resources Division
Wildlife & Marine Resources Section
999 18th St., South Terrace Suite 370
Denver, CO 80202
Tel: (303) 844-1383
Fax: (303) 844-1350
john.h.martin@usdoj.gov
For Washington:
Ronald Lavigne
Office of the Attorney General
P.O. Box 40117
Olympia, WA 98504-0117
(360) 586-6751
Email: ronaldl@atg.wa.gov
STIPULATED ORDER OF PARTIAL DISMISSAL
No. 2:14-cv-0196-RSM
601 D Street NW
Washington, D.C. 20044-7611
(202) 514-8293
Upon written notice to the other Parties, any party may designate a successor contact person for
any matter relating to this Stipulated Dismissal.
10. No provision of this Stipulated Dismissal shall be interpreted as or constitute a
commitment or requirement that EPA obligate or pay funds exceeding those available, take
action in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or take actions in
contravention of the Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706, the CWA, 33
U.S.C. §§ 1251 et seq., the ESA, 16 U.S.C. §§ 1531 to 1544, or any other law or regulation,
either substantive or procedural.
11. The Parties recognize that the possibility exists that circumstances outside the
reasonable control of EPA could delay compliance with the obligations contained in this
Stipulated Dismissal. Such situations include, but are not limited to, a government shut-down
such as occurred in 1995, 1996, and 2013, or currently unforeseen catastrophic environmental
events requiring immediate and/or time-consuming response by EPA. Should a delay occur due
to such circumstances, any resulting failure to meet the obligations set forth herein shall not
constitute a failure to comply with the terms of this Stipulated Dismissal, and any deadlines
occurring within 120 days of the termination of the delay shall be extended one day for each day
of the delay, or more if the Parties so agree.
12. Nothing in the terms of this Stipulated Dismissal shall be construed to affect the
rights of the United States as against persons not parties to this Stipulated Dismissal, or to limit
or modify the discretion accorded to EPA by the CWA, the ESA, the APA, or by any general
principles of federal administrative or common law.
13. This Stipulated Dismissal does not impair any right Plaintiff may have to bring a
subsequent action challenging any final agency action that may arise from the Stipulated
Dismissal. EPA and Washington preserve all defenses to any such challenges.
14. This Stipulated Dismissal was negotiated between the Parties in good faith and was
jointly drafted by the Parties. Accordingly, the Parties hereby agree that any and all rules of
STIPULATED ORDER OF PARTIAL DISMISSAL
No. 2:14-cv-0196-RSM
601 D Street NW
Washington, D.C. 20044-7611
(202) 514-8293
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 Stipulated
Dismissal.
15.
This Stipulated Dismissal shall not constitute or be construed as an admission,
precedent, or adjudication of any question of fact or law with respect to any of the claims raised
in this matter. Nor is it an admission of violation of any law, rule, regulation, or policy by the
United States or EPA.
16. The individuals signing this Stipulated Dismissal on behalf of the Parties hereby
certify that they are authorized to bind their respective parties to this Stipulated Dismissal and do
agree to the terms herein.
17. This Stipulated Dismissal shall be governed and construed under the laws of the
United States.
18. The terms of this Stipulated Dismissal shall become effective upon entry of an Order
by the Court approving the Stipulated Dismissal.
19. The continuing jurisdiction of this Court over EPA specified in Paragraph 3 above
shall terminate upon EPA’s fulfillment of its obligations under Paragraph 1 of this Stipulated
Dismissal. The continuing jurisdiction of this Court over Washington specified in Paragraph 3
above shall terminate upon Washington’s fulfillment of its obligations under Paragraph 2 of this
this Stipulated Dismissal.
20. This Stipulated Dismissal constitutes the final, complete and exclusive agreement
and understanding between the Parties with respect to the matters addressed in this Stipulated
Dismissal. There are no representations, agreements or understandings relating to this Stipulated
Dismissal other than those expressly contained in this Stipulated Dismissal.
WHEREFORE, after reviewing the terms and conditions of this Stipulated Dismissal, the
Parties hereby consent and agree to the terms and conditions of this Stipulated Dismissal.
IT IS SO STIPULATED.
STIPULATED ORDER OF PARTIAL DISMISSAL
No. 2:14-cv-0196-RSM
601 D Street NW
Washington, D.C. 20044-7611
(202) 514-8293
Dated this 16th day of October, 2018.
By:
/s/ Kevin Cassidy (by consent 9/13)
Allison LaPlante, OSB # 023614
(admitted pro hac vice)
Kevin Cassidy, OSB # 025296
(admitted pro hac vice)
EARTHRISE LAW CENTER
10015 SW Terwilliger Boulevard
Portland, OR 97219
Tel: (503) 768-6894
Fax: (503) 768-6642
laplante@lclark.edu
cassidy@lclark.edu
By:
/s/ John H. Martin
John H. Martin
U.S. DEPARTMENT OF JUSTICE
Environmental & Natural Resources
Division
Wildlife & Marine Resources Section
999 18th St., South Terrace Suite 370
Denver, CO 80202
Tel: (303) 844-1383
Fax: (303) 844-1350
john.h.martin@usdoj.gov
and
and
David A. Bricklin, WSBA # 7583
Bryan Telegin, WSBA # 46686
BRICKLIN & NEWMAN, LLP
1001 Fourth Avenue, Suite 3303
Seattle, WA 98154
Tel: (206) 264-8600
Fax: (206) 264-9300
bricklin@bnd-law.com
telegin@bnd-law.com
David Kaplan
U.S. DEPARTMENT OF JUSTICE
Environmental & Natural Resources
Division
Environmental Defense Section
601 D St. NW
P.O. Box 7611
Washington, D.C. 20044-7611
Tel: (202) 514-0997
Fax: (202) 514-8865
david.kaplan@usdoj.gov
Attorneys for Plaintiff NWEA
Attorneys for Defendant EPA
ROBERT W. FERGUSON
Attorney General
s/ Ronald Lavigne (by consent 8/24)
RONALD L. LAVIGNE, WSBA
#18550
Senior Counsel
CHRISTOPHER H. REITZ, WSBA
#45566
Assistant Attorney General
Attorneys for Defendant-Intervenor
State of Washington,
Department of Ecology
P.O. Box 40117
Olympia, WA 98504-0117
(360) 586-4614
STIPULATED ORDER OF PARTIAL DISMISSAL
No. 2:14-cv-0196-RSM
601 D Street NW
Washington, D.C. 20044-7611
(202) 514-8293
Email: RonaldL@atg.wa.gov
ChrisR@atg.wa.gov
Attorneys for Intervenor-Defendant
Washington
IT IS SO ORDERED this 18th day of October 2018.
A
RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE
STIPULATED ORDER OF PARTIAL DISMISSAL
No. 2:14-cv-0196-RSM
601 D Street NW
Washington, D.C. 20044-7611
(202) 514-8293
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?