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Coalition For A Sustainable Delta and Kern County Water Agency v. United States Department of Transportation

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


October 27, 2011

COALITION FOR A SUSTAINABLE DELTA AND KERN COUNTY WATER AGENCY PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF TRANSPORTATION, RAY LAHOOD, IN HIS OFFICIAL CAPACITY AS SECRETARY OF TRANSPORTATION, MARITIME ADMINISTRATION, AND JAMES E. CAPONITI, IN HIS OFFICIAL CAPACITY AS ACTING DEPUTY MARITIME ADMINISTRATOR, DEFENDANTS.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

STIPULATION OF PARTIAL DISMISSAL

WHEREAS, the Coalition For A Sustainable Delta and the Kern County Water Agency ("Plaintiffs") filed a Complaint for Declaratory and Injunctive Relief in Case No. 1:09-CV-00480 on March 12, 2009;

WHEREAS, Plaintiffs filed a First Amended Complaint for Declaratory and Injunctive Relief (Dkt. #23) as a matter of right pursuant to Rule 15(a)(1) of the Federal Rules of Civil Procedure on May 28, 2009;

WHEREAS, Plaintiffs filed a Second Amended Complaint for Declaratory and Injunctive Relief (Second Amended Complaint) (Dkt. #75) on July 23, 2009;

WHEREAS, the Eighth, Ninth, and Tenth Claims for Relief contained in Plaintiffs' Second Amended Complaint allege that the Department of Transportation Maritime Administration (MARAD) violated section 7 of the Endangered Species Act (ESA), 16 U.S.C. 1531 et seq., by, among other things, failing to consult with the U.S. Fish and Wildlife Service (Service) regarding the effects of the Removal of Non-Retention Vessels from National Defense Reserve Fleet Sites for Disposal Project located at the Suisun Bay Reserve Fleet Facility on the threatened delta smelt and its designated critical habitat;

WHEREAS, MARAD entered into consultation with the National Marine Fisheries Service (NMFS) in August of 2007;

WHEREAS, it was agreed between the NMFS and MARAD that the consultation would be stayed and continued following MARAD's completion of its environmental analysis of fleet operations and vessel disposal activities under the National Environmental Policy Act;

WHEREAS, MARAD issued the Final Programmatic Environmental Assessment and Finding of No Significant Impact for Removal and Disposal of Non-Retention Vessels from the National Defense Reserve Fleet on August 31, 2009;

WHEREAS, on January 19, 2010 and May 13, 2010, MARAD submitted a request to NMFS to concur with MARAD's determination that the Removal of Non-Retention Vessels from National Defense Reserve Fleet Sites for Disposal Project located at the Suisun Bay Reserve Fleet Facility may affect but is not likely to adversely affect the threatened delta smelt and its critical habitat; pursuant to Section 7(a)(2) of the ESA;

WHEREAS, on June 1, 2011, NMFS concurred with MARAD's determination that listed species and designated critical habitat are not likely to be adversely affected by MARAD's proposed removal of non-retention vessels from the Suisun Bay Reserve Fleet Facility;

WHEREAS, on January 19, 2010, and June 2010, MARAD submitted a request to the Service to concur with MARAD's determination that the Removal of Non-Retention Vessels from National Defense Reserve Fleet Sites for Disposal Project located at the Suisun Bay Reserve Fleet Facility may affect but is not likely to adversely affect the threatened delta smelt and its critical habitat;

WHEREAS, on June 20, 2011, pursuant to section 7(a)(2) of the ESA, the Service concurred that the proposed action is not likely to adversely affect the delta smelt or adversely modify its critical habitat;

NOW, THEREFORE, pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), the parties hereby stipulate to the dismissal of the Eighth, Ninth, and Tenth Claims for Relief contained in Plaintiffs' Second Amended Complaint (Dkt. #75). Dismissal is without prejudice, with each party to bear its own costs, expenses, and attorneys' fees as to the dismissed claims. All other claims in the Second Amended Complaint are unaffected by this stipulation.

Respectfully submitted this 25th day of October, 2011 NOSSAMAN LLP /S/ Paul S. Weiland (with permission by By: _ Kevin W. McArdle)________________ Robert D. Thornton Paul S. Weiland Audrey M. Huang Attorneys for Plaintiffs Coalition for a Sustainable Delta and Kern County Water Agency KERN COUNTY WATER AGENCY AMELIA T. MINABERRIGARAI /S/ Amelia T. Minaberrigarai (with By: permission by Kevin W. McArdle)_ Attorney for Plaintiff Kern County Water Agency IGNACIA S. MORENO, ASSISTANT ATTORNEY GENERAL By: _/S/ Kevin W. McArdle__ KEVIN W. MCARDLE, Trial Attorney United State Department of Justice, Environmental & Natural Resources Division Attorneys for FEDERAL DEFENDANTS

IT IS SO ORDERED.

20111027

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