American Whitewater et al v. Electron Hydro, LLC et al

Filing 68

ORDER re Parties' 64 Joint Stipulated Motion to Dismiss. The Court dismisses this case with prejudice but retain jurisdiction to enforce the terms of the parties' stipulation. Signed by U.S. District Judge John C. Coughenour. (SR)

The Honorable John C. Coughenour

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
SEATTLE DIVISION

10 AMERICAN WHITEWATER et al.,

No. 2:16-cv-00047-JCC

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THIS DOCUMENT RELATES TO:
C16-cv-47-JCC

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Plaintiffs,
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vs.
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ELECTRON HYDRO, LLC, et al.,
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Defendants.
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__________________________________________)

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Parties’ Stipulation and [Proposed] Order re Settlement/Dismissal
Case No. 2:16-cv-00047-JCC

PARTIES’ STIPULATION AND
[PROPOSED] ORDER RE
SETTLEMENT AND DISMISSAL

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Plaintiffs American Whitewater, et al. and Defendants Electron Hydro, LLC, et al. hereby

2 respectfully file this stipulation and proposed order to voluntarily dismiss this case pursuant to
3 FED. R. CIV. P. 41(a)(2).
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Whereas, Plaintiffs filed this case on January 12, 2016, alleging that Defendants had

5 violated and continue to violate Section 9 of the Endangered Species Act (“ESA”), 16 U.S.C. §
6 1538, by causing “take” of ESA-listed Chinook salmon, steelhead trout, and bull trout by
7 operations of the Electron Hydroelectric Project on the Puyallup River in Washington (Dkt. #1);
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Whereas, Plaintiffs alleged that to lawfully operate the project, Defendants are required to

9 obtain incidental take permits under Section 10(a)(1)(B) of the ESA, 16 U.S.C. § 1539(a)(1)(B).
10 (Dkt. #1);
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Whereas, in their original and operative pleadings (Dkt. #30), Plaintiffs sought and seek

12 as relief, among other things, that the Court order Defendants to cease diverting water and fish
13 from the Puyallup River in the period before Defendants obtain incidental take permits under
14 Section 10(a)(1)(B) of the ESA from the National Marine Fisheries Service (“NMFS”) and from
15 the U.S. Fish and Wildlife Service (“USFWS”);
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Whereas, on June 18, 2021, upon motions for preliminary relief, the Court ordered that

17 Defendants shall not open the project intake and divert water or fish in the period before they
18 obtain incidental take permits under Section 10(a)(1) of the ESA from NMFS and USFWS (Dkt.
19 #58);
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Accordingly, Plaintiffs and Defendants hereby agree and stipulate that:

21 1.

Defendants shall not open the project intake and divert water or fish from the Puyallup

22 River before they obtain from NMFS and USFWS incidental take permits under Section 10(a)(1)
23 of the ESA that address effects of the actions on Chinook, steelhead trout, and bull trout;
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Defendants shall provide Plaintiffs with notice of their submission of any final

25 application to NMFS and/or USFWS, and any proposed Habitat Conservation Plan and
26 supporting materials, for permits under Section 10(a)(1) of the ESA;

Parties’ Stipulation and [Proposed] Order re Dismissal
Case No. 2:16-cv-00047-JCC

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1 3.

Defendants shall notify Plaintiffs within five (5) days of the receipt of any permits under

2 Section 10(a)(1) of the ESA from NMFS and USFWS;
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Defendants shall notify Plaintiffs seven (7) days before they open the intake;

4 5.

Defendants shall not perform in-water work at the headworks site at the project without

5 agency permits or other authority to do so;
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Defendants shall pay Plaintiffs $225,000 in order to satisfy any and all claims for

7 attorneys’ fees, costs, or other expenses that might be brought and may be available to Plaintiffs
8 in this case. Defendants’ agreement to pay Plaintiffs that sum does not in any way constitute any
9 admission by Defendants as to any fact alleged or any liability for any claim or claims alleged in
10 this case. Defendants shall pay Plaintiffs that sum within 45 days of a court order dismissing this
11 case.
12 7.

The Court shall dismiss this case with prejudice but retain jurisdiction to enforce the

13 terms of the parties’ stipulation. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 381 (1994).
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Date: March 2, 2022.

Respectfully submitted,
/s/ Peter M. K. Frost
Peter M. K. Frost, pro hac vice
Western Environmental Law Center
120 Shelton McMurphey Blvd., Suite 340
Eugene, Oregon 97401
541-359-3238
[e-mail]
/s/ Andrew M. Hawley
Andrew M. Hawley, WSB #53052
Western Environmental Law Center
1402 3rd Ave., Suite 1022
Seattle, Washington 98101
206-487-7250
[e-mail]
Attorneys for Plaintiffs
/s/ Svend A. Brandt-Erichsen
Svend A. Brandt-Erichsen, WSBA # 23923
NOSSAMAN LLP

Parties’ Stipulation and [Proposed] Order re Dismissal
Case No. 2:16-cv-00047-JCC

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719 Second Avenue, Suite 1200
Seattle, Washington 98104
Tel: [phone]
[e-mail]

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Attorney for Defendants

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Pursuant to the stipulation of the parties, IT IS SO ORDERED.

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DATED this 25th day of March 2022.

A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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Parties’ Stipulation and [Proposed] Order re Dismissal
Case No. 2:16-cv-00047-JCC

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