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Don v. Vilsack

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 26, 2010

LEROY DEL DON JR., PLAINTIFF,
v.
TOM VILSACK, IN HIS OFFICIAL CAPACITY AS UNITED STATES SECRETARY OF AGRICULTURE, UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF AGRICULTURE FOREST SERVICE, KAREN JO CALDWELL, SUSAN SKALSKI, KATHY HARDY, CHRISTINA WELCH, AND DOES 1 - 100 INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

SETTLEMENT STIPULATION; DISMISSAL; ORDER

IT IS HEREBY STIPULATED by and between Plaintiff, Leroy Del Don, Jr. ("Del Don"), and federal defendants United States Department of Agriculture ("USDA"), United States Department of Agriculture Forest Service ("USDA Forest Service") and District Ranger Karen Jo Caldwell, in her official capacity (collectively "Federal Defendants"), as follows:

1. The parties hereby agree to settle and compromise each and every claim of any kind arising directly or indirectly from the acts or omissions that gave rise to the above-captioned action under the terms and conditions set forth in this Stipulation.

2. Upon entry of the Court's Order on this Stipulation, Defendant USDA Forest Service shall issue to Del Don a Special Use Permit, to expire on June 1, 2010, for occupancy of the residential residence on Lot 150 in the Pinecrest Tract, Stanislaus National Forest, Summit Ranger District (the "Temporary Permit"). The Temporary Permit shall authorize pavement on the driveway not to exceed 22 feet in length, measured from the northern edge of Rustic Road, in addition to the other improvements authorized in the Special Use Permit issued by the USDA Forest Service to Del Don on December 31, 2008. If pavement in excess of 22 feet is not removed from National Forest System lands by June 1, 2010, the USDA Forest Service will not issue a new recreation residence permit, and Del Don will be required to vacate the premises and remove all structures and improvements from the lot, except those owned by the United States, and return the lot to a condition satisfactory to the authorized officer, as required by the terms of Del Don's last term permit which expired on December 31, 2008, and by 36 C.F.R. 251.60(h)(2)(i).

3. Prior to removal of the excess pavement, Del Don shall mark the pavement at the place of the proposed cut and request that District Ranger Karen Jo Caldwell inspect and approve the location of the mark. District Ranger Caldwell shall approve the mark if it is not more than 22 feet from the northern edge of Rustic Road. During the course of removal of the pavement, Del Don and his agents shall protect the scenic and esthetic values of the National Forest System lands as far as practicable. Other than negligible soil disturbance associated with removal of the pavement, no soil, trees, or other vegetation may be removed from National Forest System lands unless authorized in writing by District Ranger Caldwell.

4. Provided that Del Don has complied with the requirement to remove excess pavement from National Forest System lands by June 1, 2010, as set forth in paragraph 2, as well as the other terms and conditions of the Temporary Permit, Defendant USDA Forest Service shall issue to Del Don a Term Special Use Permit, to expire on December 31, 2028, for occupancy of the residential residence (the "Term Permit"). The Term Permit shall authorize Del Don to keep and maintain pavement on the driveway not to exceed 22 feet in length, measured from the northern edge of Rustic Road.

5. The Temporary Permit and the Term Permit shall include the usual and customary terms and conditions applicable to recreation residences in the Pinecrest tract. Nothing contained in this Stipulation shall be construed to exempt Del Don from compliance with any other term or condition of the Temporary Permit and Term Permit.

6. Del Don waives and releases any claims, demands, rights, and causes of action of any kind and nature related to the subject matter that gave rise to this action, including without limitation all claims against the Federal Defendants and their officers, agents, employees and contractors, present and former, in both their official and personal capacities. Del Don is familiar with California Civil Code Section 1542 and expressly waives and relinquishes all rights and benefits under this Section and all similar laws. California Civil Code Section 1542 provides: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor."

7. This Stipulation is not intended to be, and should not be construed as, an admission of liability or fault on the part of the USDA or its agents, servants, or employees, and it is specifically denied that they are liable to Plaintiff. This settlement is entered into for the purpose of compromising disputed claims and avoiding the expenses and risks of further litigation.

8. The parties agree that they will each bear their own costs, attorney's fees and expenses.

9. The parties and their undersigned attorneys agree to execute and deliver such other and further documents as may be required to carry out the terms of this Stipulation.

10. Each person signing this Stipulation warrants and represents that he or she possesses full authority to bind the person(s) on whose behalf he or she is signing to the terms of the Stipulation.

11. Each person signing this Stipulation warrants and represents that no promises, inducements, or other agreements not expressly contained herein have been made; that this Stipulation contains the entire agreement between the parties; and that the terms of this Stipulation are contractual and not mere recitals. All prior oral understandings, agreements, and writings are superseded by this Stipulation and are of no force or effect.

12. Each person executing this Stipulation represents that he or she has read and understands its contents; that he or she executes this Stipulation voluntarily; and that he or she has not been influenced by any person acting on behalf of any party.

13. The above-captioned action is hereby DISMISSED WITH PREJUDICE as to each and every one of the named defendants. Upon approval by the Court as provided below, the Clerk of the Court is requested to enter this dismissal in the official docket.

14. This Stipulation may be signed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument.

15. Notwithstanding the entry of a dismissal herein, the parties hereby stipulate that this Court shall retain jurisdiction to enforce the terms of this Stipulation.

Respectfully submitted,

Dated: April 23, 2010

BENJAMIN B. WAGNER United States Attorney

By: BENJAMIN E. HALL Assistant U.S. Attorney Attorneys for Defendants

Dated: April 21, 2010

UNITED STATES DEPARTMENT OF AGRICULTURE FOREST SERVICE By: KAREN JO CALDWELL District Ranger Summit Ranger District Stanislaus National Forest

Dated: April 16, 2010

ARATA, SWINGLE, SODHI & VAN EGMOND By: COLLEEN F. VAN EGMOND Attorneys for Plaintiff

Dated: April 16, 2010

LEROY DEL DON, JR.

ORDER

IT IS SO ORDERED.

20100426

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