The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
Stipulation and Order to Dismiss Claims and Set Schedule for Resolving Attorney's Fees and Costs
WHEREAS, the U.S. Fish and Wildlife Service ("Service") listed the delta smelt as a threatened species on March 5, 1993. See 73 Fed. Reg. 39,639, 39,640 (July 10, 2008).
WHEREAS, on March 9, 2006, the Service received a petition, dated March 8, 2006, from the Center for Biological Diversity, the Bay Institute, and the Natural Resources Defense Council to reclassify the listing status of the delta smelt from threatened to endangered status. Id.
WHEREAS, On July 10, 2008, the Service published the 90-day finding in the Federal Register, as required by 16 U.S.C. § 1533(b)(3)(A), which concluded that the petition presented "substantial information to indicate... that reclassification of delta smelt from threatened to endangered may be warranted" and that the Service would accordingly initiate a status review of the species. Id. at 39,643.
WHEREAS, on October 15, 2009, Council for Endangered Species Act Reliability ("CESAR") filed its Complaint in the above-captioned case under the Endangered Species Act citizen suit provisions at 16 U.S.C. §1540(g)(1)(C). CESAR's Complaint alleged that the Service missed its mandatory deadline to issue, within 12-months, a finding as to whether the petitioned-for reclassification of the delta smelt was warranted, not warranted, or warranted but precluded by other listing priorities, pursuant to 16 U.S.C. §1533(b)(3)(B).
WHEREAS, CESAR's lawsuit in this action sought declaratory relief and an injunction compelling issuance of the 12-month finding, as well as reasonable costs of litigation including attorney's fees.
WHEREAS, on April 7, 2010, the Service issued a 12-month finding regarding the petition to reclassify the delta smelt at 75 Fed. Reg. 17,667 (the "12-month Delta Smelt Finding").
WHEREAS, on April 12, 2010, this Court issued an Order to Show Cause re Dismissal ordering the parties to show cause as to why the case should not be dismissed as moot in light of the Service's issuance of the 12-month Delta Smelt Finding. NOW THEREFORE, IT IS HEREBY STIPULATED, and agreed to by and between CESAR and Ken Salazar, the U.S. Department of the Interior, the Service, Sam Hamilton, and Ren Lohoefenor ("Defendants") that publication of the 12-month Delta Smelt Finding renders CESAR's claims for injunctive and declaratory relief in this action moot. The parties respectfully request an order from this Court dismissing such claims with prejudice. However, the parties agree that this dismissal is without prejudice to CESAR raising additional claims under the Endangered Species Act or other applicable law not covered by the Complaint relating to the delta smelt, including challenging the merits of the 12-month Delta Smelt Finding.
The parties further stipulate and agree that this dismissal on the basis of mootness is without prejudice to CESAR seeking and this Court awarding CESAR attorney's fees and costs incurred in this action. If such fees are sought, this dismissal is without prejudice to Defendants raising any and all defenses to such an award including jurisdictional, entitlement, or the reasonableness of any amount. The parties respectfully request an order setting the following schedule for addressing attorney's fees and costs:
(1) Within 30 days of the entry of the order by this Court approving this Stipulation, CESAR will provide to Defendants an itemization of the reasonable attorney's fees and costs it seeks to recover in this action to allow Defendants to assess whether settlement of any fee claim is possible.
(2) Within 60 days of Defendants receiving this itemization of CESAR's proposed fees and costs, the parties will notify the Court of whether they have reached a settlement as to the payment of CESAR's attorney's fees and costs by Defendants.
(3) If the parties have not reached agreement on attorney's fees and costs at the time they provide this notice to the Court, CESAR may move within 30 days of that date for the Court to award attorney's fees and costs. Briefing and adjudication of CESAR's motion for fees and costs and Defendant's opposition will then proceed as provided in L.R. 230. In the event CESAR files such a motion, Defendants reserve any and all defenses to such an award including jurisdictional, entitlement, or the reasonableness of any amount.