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Center For Biological Diversity v. Kempthorne

April 1, 2008

CENTER FOR BIOLOGICAL DIVERSITY, PLAINTIFF,
v.
KEMPTHORNE, ET AL., DEFENDANTS,



[PROPOSED] CONSENT DECREE

Plaintiff, Center for Biological Diversity, and Defendants, Dirk Kempthorne, sued in his official capacity as Secretary of the Interior, H. Dale Hall, sued in his official capacity as Director of the United States Fish and Wildlife Service, and the United States Fish and Wildlife Service, by and through their undersigned counsel, state as follows:

WHEREAS, the United States Fish and Wildlife Service ("Service"), pursuant to the Endangered Species Act ("ESA"), 16 U.S.C. § 1533(a)(3)(A), published a final rule designating critical habitat for the California red-legged frog (Rana aurora draytonii) (the "Species"). 71 Fed. Reg. 19244 (April 13, 2006) (the "Rule").

WHEREAS, on December 19, 2007, Plaintiff filed a Complaint for declaratory and injunctive relief, pursuant to the ESA, 16 U.S.C. § 1540(g), and the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq. The Complaint challenged the Rule and sought a new critical habitat rule for the Species.

WHEREAS, Plaintiff and Defendants, through their authorized representatives, and without any admission or final adjudication of the issues of fact or law with respect to Plaintiff's claims, have reached a settlement that they consider to be a just, fair, adequate, and equitable resolution of the disputes set forth in Plaintiff's Complaint.

WHEREAS, Plaintiff and Defendants 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, IT IS STIPULATED BY AND BETWEEN THE PARTIES AS FOLLOWS:

1. By no later than August 29, 2008, the Service shall submit for publication in the Federal Register a proposed revised critical habitat designation pursuant to ESA § 4(a)(3), 16 U.S.C. 15 § 1533(a)(3), for the Species. By no later than August 31, 2009, the Service shall submit to the Federal Register a final revised critical habitat designation for the Species.

2. The Service shall provide the public a minimum of sixty days in which to comment on the draft economic analysis of the proposed revised critical habitat designation for the Species (referenced in Paragraph 1) prior to the deadline for publication of the final revised critical habitat designation for the Species.

3. Either party may seek to modify the deadline for any actions specified in Paragraph 1 for good cause shown. 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 Agreement, the parties shall use the dispute resolution procedures specified in Paragraph 4.

4. The Order entering this Settlement Agreement ("Agreement") may be modified by the Court upon good cause shown 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 for the actions 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 written notice of the claim. The parties agree that they will meet and confer (in-person not required) at the earliest possible time in a good-12 faith effort to resolve the claim before bringing any matter to the Court. If the parties are unable to resolve the claim within 30 days after the notice, either party may file a motion with the Court seeking either specific performance of the provisions of the Agreement or a modification of the Agreement for good cause shown. No party seeking to enforce this Agreement shall invoke the contempt powers of the Court in aid of enforcement of this Agreement except in the enforcement of any subsequent specific performance order of the Court in accordance with these dispute 18 resolution procedures.

5. No party shall use this Agreement or the terms herein as evidence of what does or does not constitute a reasonable time line for designation of critical habitat in any other proceeding regarding the Service's implementation of the ESA.

6. Defendants agree that Plaintiff is the "prevailing party" in this action, and agrees to pay Plaintiff reasonable attorneys' fees and costs, pursuant to Section 11(g) of the ESA, 16 U.S.C. § 1540 (g). Therefore, Defendants agree to settle all of Plaintiff's claims for costs and attorneys' fees in the above-captioned litigation for a total of $20,390.12. A check will be made payable in that amount to Earthjustice.

7. Defendants agree to submit all necessary paperwork for payment of said attorneys' fees to the Department of the Treasury's Judgment Fund Office, pursuant to 16 U.S.C. § 1540(g)(4), within ten (10) business days of receipt of the signed court order approving this stipulation.

8. Plaintiff agrees to accept payment of $20,390.12 in full satisfaction of any and all claims for attorneys' fees and costs of litigation to which Plaintiff is entitled in the above-captioned litigation, through and including the date of this agreement.

9. Plaintiff agrees that receipt of this payment from Defendants shall operate as a release of Plaintiff's claims for attorneys' fees and costs in this matter, ...


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