UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
February 10, 2011
CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, A NON-PROFIT CORPORATION,
CONTECH CONSTRUCTION PRODUCTS CONSENT AGREEMENT AND INC. AN OHIO CORPORATION, AND DAN GRANTING DISMISSAL WITH MOODY, AN INDIVIDUAL PREJUDICE [FRCP 41(A)(2)] DEFENDANTS. (FEDERAL WATER POLLUTION CONTROL ACT, 33 U.S.C. &SECT;&SECT; 1251 TO 1387)
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
TO THE COURT:
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
Jill A. Weller
Attorney for Defendants CONTECH CONSTRUCTION PRODUCTS INC. DAN MOODY
WHEREAS, the Parties have consented to entry of the foregoing Consent Agreement and requested the Court's approval and entry thereof; and
WHEREAS, pursuant to 33 U.S.C. § 1365(c)(3), the Parties submitted the Consent Agreement to the United States Attorney General and the Administrator of the United States Environmental Protection Agency and the 45-day review period has been completed without objection by the agencies;
WHEREAS, the Court has reviewed the Consent Agreement and fully considered the Parties' request to enter this Consent Agreement as an order; and
WHEREAS, the Court finds the Consent Agreement to be: (1) fair, adequate and reasonable; (2) consistent with applicable laws; and (3) protective of the public interest; and
WHEREAS, good cause appearing therefore,
1. THIS CONSENT AGREEMENT IS HEREBY APPROVED AND JUDGMENT IS ENTERED IN ACCORDANCE THEREWITH;
2. Plaintiff California Sportfishing Protection Alliance's claims against Contech Construction Products Inc. and Dan Moody, an individual, as set forth in the Clean Water Act Notice Letters and Complaint filed in Case No. 2:10-CV-00902-LKK-EFB, are hereby dismissed with prejudice.
IT IS FURTHER ORDERED that the Court shall retain and have jurisdiction over the Parties with respect to disputes arising under the Consent Agreement attached to the Parties' Stipulation to Approve Consent Agreement and Dismiss as Exhibit A.
IT IS SO ORDERED.
UNITED STATES DISTRCIT COURT FOR THE EASTERN DISTRICT COURT OF CALIFORNIA
Dated: February 16, 2011