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United States of America v. Bradley Mining Company

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION


December 5, 2011

UNITED STATES OF AMERICA, PLAINTIFF, ))
v.
BRADLEY MINING COMPANY,
DEFENDANTS.

The opinion of the court was delivered by: Thelton E. Henderson, Judge United States District Court

JOINT MOTION TO CONSOLIDATE ) ACTIONS, STIPULATION, AND [PROPOSED] ORDER et al., ) 17

Frederick Bradley, Trustee for the Worthen Bradley Family Trust, hereby move, pursuant to Plaintiff, the United States of America, and Defendants, Bradley Mining Company and Rule 42(a) of the Federal Rules of Civil Procedure, to consolidate the above-captioned action 4 with the related action filed in this Court by the United States, United States v. Bradley Mining Court consolidate these two actions under the above-captioned case number.

above-captioned action under the Comprehensive Environmental Response, Compensation, and Company, Civil Action No. 3:08-CV-05501-TEH. The parties respectfully request that the 6

On August 19, 2008, the United States filed a Complaint against Defendants in the

Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq., seeking recovery of unreimbursed 10 costs incurred and to be incurred by it, together with interest, for activities undertaken in 11 response to the release or threatened release of hazardous substances at the Sulphur Bank 12

26, 2008, the United States filed another action under Section 107 of CERCLA, 42 U.S.C. 14

§ 9607, against Bradley Mining Company in the District Court of Idaho for recovery of costs 15 incurred by the United States in connection with the Stibnite Mine Site in Valley County, Idaho 16

("Stibnite Mine case"). Pursuant to the parties' stipulation, the District of Idaho ordered that the 17 venue be changed to the Northern District of California. In response to the parties' stipulation 18 and the United States' motion in the Sulphur Bank case, this Court determined that the Sulphur 19

TEH, Court Docket No. ("DN") 31. 21

22 that the parties had reached final agreement on all of the terms of a Consent Decree, which, if 23 entered, would fully resolve all of the claims in this matter and in the related Stibnite Mine case, 24

United States v. Bradley Mining Company, Case No. 3:08-CV-05501 (TEH). DN 77. Counsel 25 for the Elem Tribe, which is not yet a party to this action but is a party to the Consent Decree, 26 has also represented that the terms of the Consent Decree are acceptable to the Elem Tribe. Id. at 27

Consent Decree with the Court and submit the Consent Decree for public comment in Joint Motion to Consolidate Actions - Case No. 3-08-CV-03968 TEH

Mercury Mine Superfund Site in Lake County, California ("Sulphur Bank case"). On September 13

Bank and Stibnite Mine cases were related on December 23, 2008. Case No. 3:08-CV-03968 20

On December 2, 2011, the parties filed a Joint Notice of Settlement to inform the Court

2. If approval of the Consent Decree is obtained from all parties, the United States will lodge the accordance with 28 C.F.R. § 50.7. Id. The Court granted the parties' request to stay all 2 proceedings in this matter for 75 days to allow for a final settlement of this matter. DN 78 at 3. 3

4 involve common parties and common questions of law and fact, and are expected to be resolved 5 concurrently by the same Consent Decree. See Fed. R. Civ. P. 42(a). Furthermore, in addition 6 to simplifying the public comment procedure by the lodging of a single decree, the parties agree 7 that consolidation into one action will facilitate entry of the decree and any potential amendment, 8 enforcement, or other future Court action related to the Consent Decree. Accordingly, pursuant 9 to Rule 42(a) of the Federal Rules of Civil Procedure, the parties respectfully request that the 10

Court consolidate these two actions under the above-captioned case number. A proposed Order 11 is submitted below. 12

I attest that concurrence in the filing of this Joint Notice of Settlement has been obtained

14 from Mr. Jon K. Wactor, the attorney for Defendants Bradley Mining Company and Frederick 15

Bradley, Trustee for the Worthen Bradley Family Trust. 16

Dated: December 5, 2011 /s/ Robert D. Mullaney 17

Environmental Enforcement Section

U.S. Department of Justice

301 Howard Street, Suite 1050

San Francisco, California 94105

Tel: (415) 744-6491

Fax: (415) 744-6476

Attorneys for Plaintiff United States of America

Dated: December 5, 2011 /s/ Jon K. Wactor 23

Wactor & Wick LLP 180 Grand Avenue, Suite 950

Oakland, California 94612

Tel: (510) 465-5750

Fax: (510) 465-5697

Attorneys for Defendants Bradley Mining

Company and Frederick Bradley, as Trustee of the Worthen Bradley Family Trust

Consolidation is appropriate because the Sulphur Bank and the Stibnite Mine cases

IT IS SO STIPULATED.

13

Robert D. Mullaney

Jon K. Wactor

Joint Motion to Consolidate Actions - Case No. 3-08-CV-03968 TEH

The Court, having read and considered the Joint Motion to Consolidate Actions and good

3 cause appearing therefor, 4

IT IS HEREBY ORDERED that:

1. The Joint Motion to Consolidate Actions is GRANTED; 6

2. Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, this action is consolidated 7 with the related Stibnite Mine case, United States v. Bradley Mining Company, Civil Action 8

No. 3:08-CV-05501-TEH, and this action (3:08-CV-03968) shall be designated as the main case.

Henceforth, these consolidated cases shall be considered as one case, and all pleadings shall be 10 filed in the main case and captioned with case number 3:08-CV-03968. 11

3. The related Stibnite Mine case, United States v. Bradley Mining Company, Civil Action 12

No. 3:08-CV-05501-TEH, shall be statistically closed. 13

4. Parties in the related action shall be added to the main case as consolidated 14 plaintiffs/defendants, as applicable. 15

Henderson Judge Thelton O R

20111205

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