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Natural Resources Defense Council, et al v. Kenneth Lee Salazar

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


February 1, 2011

NATURAL RESOURCES DEFENSE COUNCIL, ET AL., PLAINTIFFS,
v.
KENNETH LEE SALAZAR, IN HIS OFFICIAL CAPACITY AS SECRETARY OF INTERIOR ET AL.,
DEFENDANTS.
SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, ET AL.,
DEFENDANT-INTERVENORS.
ANDERSON-COTTONWOOD IRRIGATION DISTRICT, ET AL.,
JOINED PARTIES.

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

TRENT W. ORR, State Bar No. 77656 MICHAEL R. SHERWOOD, State Bar No. 63702 GEORGE M. TORGUN, State Bar No. 222085 Earthjustice 426 17th Street, 5th Floor Oakland, CA 94612 torr@earthjustice.org; msherwood@earthjustice.org; gtorgun@earthjustice.org Telephone: (510) 550-6725 Attorneys for Plaintiffs KATHERINE POOLE, State Bar No. 195010 MICHAEL E. WALL, State Bar No. 170238 Natural Resources Defense Council 111 Sutter St., 20th Floor San Francisco, CA 94104 kpoole@nrdc.org; mwall@nrdc.org Telephone: (415) 875-6100 HAMILTON CANDEE, State Bar No. 111376 CASEY A. ROBERTS, State Bar No. 253474 Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 hcandee@altshulerberzon.com; croberts@altshulerberzon.com Telephone: (415) 421-7151 Attorneys for Plaintiff NRDC

STIPULATION TO SETTLE ATTORNEYS' FEES AND COSTS AND ORDER

STIPULATION

WHEREAS the Court entered Final Judgment in this case on September 23, 2009 (Doc. 873); and

WHEREAS, on October 8, 2009, the Court entered an order extending the deadline for Plaintiffs to file a motion for attorneys' fees, costs and other expenses to December 22, 2009, assuming no appeal (Doc. 875); and

WHEREAS several parties timely appealed, including Plaintiffs and Federal Defendants, suspending the timeline for filing a motion for fees, costs and other expenses (Doc. 881; Doc. 883); and

WHEREAS, on July 29, 2010, Plaintiffs filed a Motion for Award of Attorneys' Fees and Costs (Doc. 903); 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' pending claims for costs and attorneys' fees for the amount of $1,906,500.

2. Plaintiffs agree to accept payment of $1,906,500 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, with the exception stated below.

3. Federal Defendants and Plaintiffs agree and acknowledge that Plaintiffs expressly reserve the right to seek any additional fees and costs to which they may be entitled for any and all work performed on the challenge regarding long-term contracts described in their Second Claim for Relief in their Third Amended Complaint, presently on appeal to the Ninth Circuit in Natural Resources Defense Council, et al. v. Salazar, et al., Case. No. 09-17661, after disposition of the appeal. Subject to the foregoing exception, 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. This Stipulation 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, costs, and other expenses 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 28th day of January, 2011.

ORDER

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

IT IS SO ORDERED.

20110201

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