The opinion of the court was delivered by: Robert J. Tuerck
STIPULATION TO APPROVE CONSENT AGREEMENT AND TO DISMISS PLAINTIFF'S CLAIMS WITH PREJUDICE; ORDER APPROVING
Plaintiff California Sportfishing Protection Alliance ("PLAINTIFF" or "CSPA"), and Defendants Contech Construction Products Inc. ("CONTECH") and Dan Moody ("MOODY"),*fn1 (collectively, the "Parties") stipulate as follows:
WHEREAS, on or about February 8, 2010, CSPA provided DEFENDANTS with a Notice of Violations and Intent to File Suit ("60-Day Notice Letter") under Section 505 of the Federal Water Pollution Control Act ("Act" or "Clean Water Act"), 33 U.S.C. § 1365; WHEREAS, on April 14, 2010, CSPA filed its Complaint against DEFENDANTS in this Court, California Sportfishing Protection Alliance v. Contech Construction, Inc., et al. (USDC, E.D. Cal., Case No. 2:10-CV-00902-LKK-EFB) and said Complaint incorporated by reference all of the allegations contained in CSPA's 60-Day Notice Letter dated February 8, 2010; WHEREAS, CSPA and DEFENDANTS, through their authorized representatives and without either adjudication of CSPA's claims or admission by DEFENDANTS of any alleged violation or other wrongdoing, have chosen to avoid the costs and uncertainties of further litigation and to resolve the allegations of CSPA as set forth in the Clean Water Act Notice Letters and Complaint, in full by way of settlement. A copy of the agreement ("Consent Agreement") entered into by CSPA and DEFENDANTS is attached hereto as Exhibit A and incorporated by this reference.
WHEREAS, the Parties submitted the Consent Agreement via certified mail, return receipt requested, to the U.S. EPA and the U.S. Department of Justice ("the agencies") and the 45-day review period set forth at 40 C.F.R. § 135.5 has been completed without objection by the agencies.
NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED TO BY AND BETWEEN THE PARTIES:
1. That the Court be requested to approve the Consent Agreement attached hereto as Exhibit A and enter judgment in therewith.
2. That CSPA's claims, as set forth in the Clean Water Act Notice Letters and First Amended Complaint, be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2). The Parties respectfully request an order from this Court dismissing such claims with prejudice. In accordance with Paragraph 16 of the Consent Agreement, the Parties also request that this Court retain and have jurisdiction over the Parties in accordance with Paragraph 13 of the Consent Agreement through May 30, 2014 (or May 30, 2015 if the term of the Consent Agreement is extended pursuant to the terms set out in Paragraph 2(e) of the Consent Agreement), for the sole purpose of resolving any disputes between the Parties with respect to enforcement of any provision of the Consent Agreement.
DATED: February 10, 2011 JACKSON & TUERCK
Robert J. Tuerck Attorney for Plaintiff CALIFORNIA SPORTFISHING PROTECTION ALLIANCE
DATED: February 10, 2011 KEATING MUETHING & KLEKAMP PLL
Attorney for Defendants CONTECH CONSTRUCTION PRODUCTS ...