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Sportfishing Protection Alliance, A Non-Profit Corporation v. Recology of Butte Colusa Counties

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA CALIFORNIA


March 4, 2011

SPORTFISHING PROTECTION ALLIANCE, A NON-PROFIT CORPORATION,
PLAINTIFF,
v.
RECOLOGY OF BUTTE COLUSA COUNTIES, ET. AL. DEFENDANTS.

ROBERT J. TUERCK (Bar No. 255741) Jackson & Tuerck P.O. Box 148 429 W. Main Street, Suite C Quincy, CA 95971 Tel: (530) 283-0406 E-mail: bob@jacksontuerck.com ANDREW L. PACKARD (Bar No. 168690) ERIK M. ROPER (Bar No. 259756) HALLIE B. ALBERT (Bar No. 258737) Law Offices of Andrew L. Packard 100 Petaluma Blvd. N., Suite 301 Petaluma, CA 94952 Tel: (707) 763-7227 Fax: (707) 763-9227 E-mail: Andrew@packardlawoffices.com Attorneys for Plaintiff CALIFORNIA SPORTFISHING PROTECTION ALLIANCE

STIPULATION TO APPROVE CONSENT AGREEMENT AND TO DISMISS PLAINTIFF'S CLAIMS WITH PREJUDICE; ORDER APPROVING CONSENT AGREEMENT AND GRANTING DISMISSAL WITH PREJUDICE [FRCP 41(a)(2)]

(Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 to 1387)

TO THE COURT:

Plaintiff California Sportfishing Protection Alliance ("PLAINTIFF" or "CSPA"), and Defendant Recology of Butte Colusa Counties ("RECOLOGY"), (collectively, the "Parties") stipulate as follows:

WHEREAS, on or about March 17, 2010, CSPA provided RECOLOGY and Joe Matz ("MATZ"), the manager of the relevant Recology facility, 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 May 19, 2010, CSPA filed its Complaint against RECOLOGY and MATZ in this Court, California Sportfishing Protection Alliance v. Recology of Butte Colusa Counties, et al., (USDC, E.D. Cal., Case No. 2:10-CV-01231) and said Complaint incorporated by reference all of the allegations contained in CSPA's 60-Day Notice Letter dated March 17, 2010;

WHEREAS, on May 28, 2010, CSPA filed its First Amended Complaint against DEFENDANTS in this Court, California Sportfishing Protection Alliance v. Recology of Butte Colusa Counties, et al., (USDC, E.D. Cal., Case No. 2:10-CV-01231) and said First Amended Complaint incorporated by reference all of the allegations contained in CSPA's 60-Day Notice Letter dated March 17, 2010;

WHEREAS, on or about June 10, 2010, CSPA provided RECOLOGY and MATZ with a Notice of Violation of California Health and Safety Code § 25249.5 et. seq. ("Prop 65 Notice");

WHEREAS, RECOLOGY waived service of CSPA's First Amended Complaint on or about September 15, 2010;

WHEREAS, CSPA has not served either the May 19, 2010 Complaint, nor the First Amended Complaint on MATZ;

WHEREAS, neither RECOLOGY nor MATZ have pending counter-claims in this action;

WHEREAS, CSPA and RECOLOGY, through their authorized representatives and without either adjudication of CSPA's claims or admission by RECOLOGY 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 60-Day Notice Letter, the Prop 65 Notice, and the Amended Complaint, in full by way of settlement. A copy of the agreement ("Consent Agreement") entered into by CSPA and RECOLOGY is attached hereto as Exhibit A and incorporated by this reference;

WHEREAS, CSPA agreed, as reflected in the Consent Agreement, to dismiss claims against MATZ. Since the matter between CSPA and RECOLOGY is now fully resolved via settlement, as reflected in the Consent Agreement, the Parties agree that the dismissal of MATZ will be with prejudice;

WHEREAS, the Parties submitted the Consent Agreement via certified mail, return receipt requested, to the U.S. Environmental Protection Agency 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; and

WHEREAS, the Department of Justice responded, on behalf of the Agencies, to the notice of the Consent Agreement with no objection to the settlement, as reflected in Docket Entry No. 13 (LETTER regarding review of proposed Consent Decree by United States).

NOW THEREFORE, IT IS HEREBY STIPULATED and agreed to by and between the Parties that:

1. That the Court be requested to approve the Consent Agreement attached hereto as Exhibit A and enter judgment in therewith;

2. CSPA's claims against RECOLOGY and MATZ, as set forth in the 60-Day Notice Letter 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; and

3. In accordance with Paragraph 18 of the Consent Agreement, the Parties also request that this Court retain and have jurisdiction over the Parties, for the sole purpose of resolving any disputes between the Parties with respect to enforcement of any provision of the Consent Agreement, through the termination date of the Consent Agreement stated in Paragraph 20.

ORDER

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, but with comments having been filed by the U.S. Department of Justice;

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,IT IS HEREBY ORDERED that:

1. The Consent Agreement attached hereto as Exhibit A is hereby approved and judgment is entered in accordance therewith;

2. Plaintiff California Sportfishing Protection Alliance's claims against Recology of Butte Colusa Counties ("RECOLOGY") and Joe Matz, an individual, as set forth in the 60-Day Notice Letter and First Amended Complaint filed in Case No. 2:10-CV-01231-KJM-DAD, are hereby dismissed with prejudice.

IT IS FURTHER ORDERED that the Court shall retain and have jurisdiction over the Parties, solely with respect to disputes arising under the Consent Agreement attached hereto and to the Parties' Stipulation to Dismiss as Exhibit A.

IT IS SO ORDERED.

20110304

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