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California Sportfishing Protection Alliance, A Non-Profit Corporation v. Allied Waste Services of North America

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 4, 2013

CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, A NON-PROFIT CORPORATION, PLAINTIFF,
v.
ALLIED WASTE SERVICES OF NORTH AMERICA, LLC, A DELAWARE CORPORATION,
BROWNING-FERRIS INDUSTRIES OF CALIFORNIA, INC., A CALIFORNIA CORPORATION, AND
DAN CAPENER, AN (FEDERAL WATER POLLUTION CONTROL ACT, INDIVIDUAL
DEFENDANTS.

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

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)] 33 U.S.C. §§ 1251 to 1387)

TO THE COURT:

Plaintiff CALIFORNIA SPORTFISHING PROTECTION ALLIANCE ("PLAINTIFF" or "CSPA"), and Defendant ALLIED WASTE SERVICES OF NORTH AMERICA, LLC, ("ALLIED") (collectively, the "Parties") stipulate as follows:

WHEREAS, on or about December 2, 2011, CSPA provided DEFENDANT 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 February 3, 2012, CSPA filed its Complaint against DEFENDANT in this Court, and said Complaint incorporated by reference all of the allegations contained in CSPA's December 2, 2011 60-Day Notice Letter;

WHEREAS, on April 25, 2012, CSPA amended its Complaint by filing the First Amended Complaint against DEFENDANT in this Court;

WHEREAS, CSPA and DEFENDANT, through their authorized representatives and without either adjudication of CSPA's claims or admission by DEFENDANT 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 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 Paragraphs 13, 16, and 18 of the Consent Agreement, the Parties also request that this Court retain and have jurisdiction over the CSPA and ALLIED through May 30, 2014, for the sole purpose of resolving any disputes between the Parties with respect to enforcement of any provision of the Consent Agreement.

DATED: January 30, 2012 JACKSON & TUERCK /s/ Robert J. Tuerck Robert J. Tuerck Attorney for Plaintiff CALIFORNIA SPORTFISHING PROTECTION ALLIANCE DATED: January 30, 2012 LAW OFFICES OF THOMAS M. BRUEN /s/ Thoms M. Bruen (as approved on 02/01/2012 By: Thomas M. Bruen Attorneys for Defendant ALLIED WASTE SERVICES OF NORTH AMERICA, LLC,

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;

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 Defendants Allied Waste Services of North America, LLC, ("ALLIED"), Browning-Ferris Industries of California, Inc. ("BFI"), and Dan Capener as set forth in the Clean Water Act Notice Letters, Complaint, and First Amended Complaint filed in Case No. 1:12-cv-00172-LJO-GSA, 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.

SO ORDERED

20130204

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