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Pacific Coast Federation of Fishermen's Associations/Institute v. Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 24, 2011

PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS/INSTITUTE FOR FISHERIES RESOURCES, ET AL.,
v.
PLAINTIFFS, CARLOS M. GUTIERREZ, IN HIS OFFICIAL CAPACITY AS SECRETARY OF COMMERCE ET AL., DEFENDANTS. SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, ET AL., DEFENDANT-INTERVENORS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

STIPULATION TO SETTLE ATTORNEYS' FEES AND COSTS AND ORDER

WHEREAS the Court entered Final Judgment in this case on September 9, 2009 (Doc. 458); and WHEREAS, on September 18, 2009, pursuant to a stipulation by the parties, the Court entered an Order extending the deadline for Plaintiffs to file a motion for attorneys' fees and costs to

December 9, 2009 (Doc. No. 461); and WHEREAS, on December 8, 2009, Plaintiffs filed a Motion for Award of Attorney's Fees and Costs against Federal Defendants (Doc. 465); and WHEREAS, counsel for Plaintiffs and Federal Defendants ("the Parties") have subsequently engaged in extensive, good faith and confidential settlement negotiations concerning Plaintiffs' claims for attorneys' fees and costs; and WHEREAS, the Parties have reached a settlement of Plaintiffs' claims for attorneys' fees and costs;

NOW THEREFORE, in the interests of judicial economy and to avoid litigating the pending motion for attorneys' fees and costs, Plaintiffs and FederalDefendants, for good and valuable consideration, the adequacy of which is hereby acknowledged, hereby stipulate and agree as follows:

1. Federal Defendants agree to settle Plaintiffs' claims for costs and attorneys' fees for the amount of $2,193,500;

2. Plaintiffs agree to accept payment of $2,193,500 in full satisfaction of any and all claims for attorneys' fees and costs of litigation to which they allege they are entitled through the date of execution of this Stipulation, including any claims for fees related to the preparation of Plaintiffs' fee application or this Stipulation. Plaintiffs release Federal Defendants from any and all claims regarding attorneys' fees and costs in this case, through the date of execution of this Stipulation.

3. Payment shall be made to Earthjustice, counsel for Plaintiffs, using an electronic fund transfer into the Earthjustice Attorney Client Trust Account Fund, The Mechanics Bank, Richmond CA. Plaintiffs' counsel shall provide the appropriate account number to counsel for the Federal Defendants.

4. Federal Defendants agree to submit all necessary paperwork 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.

5. Any obligations of the United States to expend funds under this Stipulation are subject to the availability of appropriations in accordance with the Anti-Deficiency Act, 31 U.S.C. § 1341. This Stipulation shall not be construed to require the United States to obligate or pay funds in contravention of said Anti-Deficiency Act, 31 U.S.C. § 1341.

6. The undersigned representatives of the Parties certify that they are fully authorized by the party or parties whom they represent to enter into the terms and conditions of this Stipulation and to legally bind the Parties to it.

7. This Sipulation is executed solely for the purpose of compromising and settling Plaintiffs' claims for attorneys' fees and costs. Nothing in this Stipulation shall constitute, or be construed to constitute, a precedent in any other context. Nothing in this stipulation shall constitute, or be construed to constitute, an admission of liability on the part of the Federal Defendants as to Plaintiffs' claims for attorneys' fees and costs settled herein, or an admission on the part of Plaintiffs that the settlement payment is sufficient consideration for Plaintiffs' claims for attorneys' fees and costs. Nothing in this Stipulation shall constitute, or be construed to constitute, an admission of liability or waiver of any defense on the part of the Federal Defendants as to Plaintiffs' claims in the

underlying action.

Accordingly, the parties respectfully request that this Court approve the Stipulation as stated

above.

Respectfully submitted this 21st day of January, 2011.

MICHAEL R. SHERWOOD TRENT W. ORR GEORGE TORGUN Attorneys for Plaintiffs KATHERINE S. POOLE HAMILTON CANDEE CASEY A. ROBERTS Attorneys for Plaintiff Natural Resources Defense Council SETH M. BARSKY, Section Chief United States Department of Justice Environment and Natural Resources Division Bridget Kennedy McNeil (authorized 1/19/11) BRIDGET KENNEDY MCNEIL, Trial Attorney United States Department of Justice Wildlife and Marine Resources Section 1961 Stout St., 8th Floor Denver, CO 80294 Ph: (303) 844-1484 Fax: (303) 844-1350 Bradley H. Oliphant (authorized 1/19/11) BRADLEY H. OLIPHANT, Trial Attorney United States Department of Justice Wildlife and Marine Resources Section Benjamin Franklin Station, P.O. Box 7369 Washington, DC 20044-7369 Ph: (202) 305-0500 Fax: (202) 305-0275 WILLIAM SHAPIRO, Trial Attorney U.S. Department of Justice Environment & Natural Resources Division 501 I Street, Suite 9-700 Sacramento, CA 95814-2322 Attorneys for Federal Defendants

ORDER

Having considered the foregoing Stipulation, and good cause appearing in support thereof, the foregoing Stipulation is HEREBY APPROVED. IT IS SO ORDERED.

IT IS SO ORDERED.

DEAC_Signature-END: emm0d64h

20110124

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