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Center For Biological Diversity, et al v. Rebecca M. Blank

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


April 2, 2013

CENTER FOR BIOLOGICAL DIVERSITY, ET AL., PLAINTIFFS,
v.
REBECCA M. BLANK, IN HER OFFICIAL CAPACITY AS ACTING SECRETARY OF THE U.S. DEPARTMENT OF COMMERCE, ET AL., FEDERAL
DEFENDANTS.

The opinion of the court was delivered by: J. Brett Grosko United States District Judge

STIPULATED SETTLEMENT AGREEMENT AND [PROPOSED] ORDER

Plaintiffs, Center for Biological Diversity, et al. ("Plaintiffs"), and Federal Defendants, 13 Rebecca M. Blank, in her official capacity as Acting Secretary of the U.S. Department of 14 Commerce, the National Marine Fisheries Service, Sally Jewell,*fn1 in her official capacity as 15 Secretary of the Department of the Interior, and the U.S. Fish and Wildlife Service, ("Federal 16 Defendants") (collectively, the "Parties"), have agreed to settle the above-captioned case in its 17 entirety on the terms memorialized in this Stipulated Settlement Agreement ("Stipulation"): 18 WHEREAS, on July 28, 1978, the U.S. Fish and Wildlife Service ("FWS") and U.S. National Marine Fisheries Service ("NMFS") listed the loggerhead sea turtle (Caretta caretta) 20

("Loggerhead") as threatened throughout its range pursuant to the Endangered Species Act 21

("ESA"). Listing and Protecting Loggerhead Sea Turtles as "Threatened Species" and 22 23 24 Populations of Green and Olive Ridley Sea Turtles as Threatened Species or "Endangered 2 Species," 43 Fed. Reg. 32,800 (July 28, 1978); 3

Turtle Island Restoration Network ("TIRN") petitioned FWS and NMFS to list the North Pacific 5 population of the Loggerhead as an endangered species pursuant to the ESA and designate 6 critical habitat; 7

WHEREAS, on July 12, 2007, the Center for Biological Diversity ("Center") and the

WHEREAS, on November 15, 2007, the Center and Oceana petitioned FWS and NMFS to list the Western North Atlantic population of the Loggerhead as an endangered species under 9 the ESA and designate critical habitat;

WHEREAS, FWS and NMFS published a notice on November 16, 2007, finding that the Center's and TIRN's petition concerning the listing of the North Pacific population of the 13 Loggerhead as an endangered species presented substantial scientific information indicating that 14 the petitioned action may be warranted. 90--day Finding for a Petition to Reclassify the 15 Loggerhead Turtle in the North Pacific Ocean as a Distinct Population Segment with 16 Endangered Status and to Designate Critical Habitat, 72 Fed. Reg. 64,585 (Nov. 16, 2007); 17

WHEREAS, on March 5, 2008, FWS and NMFS published a notice stating that the Center's and Oceana's petition to list the Western North Atlantic population of the Loggerhead 19 as an endangered species presented substantial scientific information indicating that the 20 petitioned action may be warranted. 90--day Finding for a Petition to Reclassify the Loggerhead Turtle in the Western North Atlantic Ocean, 73 Fed. Reg. 11,849 (Mar. 5, 2008); WHEREAS, FWS and NMFS proposed listing nine distinct population segments

("DPSs") of the Loggerhead as threatened or endangered on March 16, 2010, under the ESA. Listing of Nine Distinct Population Segments of Loggerhead Sea Turtles as Endangered or 2 Threatened, 75 Fed. Reg. 12,598 (Mar. 16, 2010) ("Proposed Listing Rule"); 3 WHEREAS, on June 2, 2010, FWS and NMFS extended the comment period on the Proposed Listing Rule by ninety (90) days, through September 13, 2010, to allow adequate time 5 for the public to review and comment on the Proposed Listing Rule. Proposed Listing of Nine 6 Distinct Population Segments of Loggerhead Sea Turtles as Endangered or Threatened; 7

Extension of Comment Period, 75 Fed. Reg. 30,769 (June 2, 2010);8 9 by which a final determination would be made regarding the Proposed Listing Rule, noting that 10

WHEREAS, on March 22, 2011, FWS and NMFS published a notice extending the date (a) substantial disagreement existed regarding the interpretation of the existing data on 11 12 Loggerhead status and trends and that data's relevance to the assessment of risk of extinction to 13 the Northwest Atlantic Ocean Loggerhead DPS; and (b) considerable disagreement existed 14 regarding the magnitude and immediacy of the fisheries bycatch threat and measures to reduce 15 this threat to the Northwest Atlantic Ocean Loggerhead DPS. Proposed Listing of Nine Distinct 16

Population Segments of Loggerhead Sea Turtles as Endangered or Threatened, 76 Fed. Reg. 17 15,932 (Mar. 22, 2011); 18

WHEREAS, on September 22, 2011, FWS and NMFS issued a final rule listing nine DPSs of the Loggerhead as endangered or threatened under the ESA. Determination of Nine 20

Distinct Population Segments of Loggerhead Sea Turtles as Endangered or Threatened, 76 Fed. 21

Reg. 58,868 (Sept. 22, 2011) ("Final Listing Rule"); 22 23 24 determinable at that time, but would be proposed in a separate rulemaking. 76 Fed. Reg. at 25 58,905; 26

WHEREAS in its Final Listing Rule, FWS and NMFS stated that critical habitat was not WHEREAS, on January 8, 2013, Plaintiffs filed a Complaint for declaratory and 3 injunctive relief, pursuant to the ESA, challenging FWS's and NMFS's alleged failure to 4 designate critical habitat for the Northwest Atlantic Ocean and North Pacific Ocean Loggerhead 5 DPSs; 6

WHEREAS, on March 25, 2013, FWS issued a proposed rule concerning the designation 7 of terrestrial critical habitat for the Northwest Atlantic Ocean Loggerhead DPS. Designation of 8 Critical Habitat for the Northwest Atlantic Ocean Distinct Population Segment of the 9

Loggerhead Sea Turtle (Caretta caretta), 78 Fed. Reg. 18,000 (March 25, 2013); 10 11 12 and without any admission or final adjudication of the issues of fact or law with respect to 13

Plaintiffs' claim, have reached a settlement that they consider to be a just, fair, adequate, and 14 equitable resolution of the disputes set forth in Plaintiffs' Complaint; 15

WHEREAS the Parties agree that settlement of this action in this manner is in the public

WHEREAS, Plaintiffs and Federal Defendants, through their authorized representatives,

16 interest and is an appropriate way to resolve this dispute; 17

NOW, THEREFORE, IT IS STIPULATED BY AND BETWEEN THE PARTIES AS

FOLLOWS: 19

1. On or before July 1, 2013, NMFS shall submit to the Federal Register 20 for publication a proposed determination concerning the designation of marine critical habitat for 21 the Northwest Atlantic Ocean Loggerhead DPS and North Pacific Ocean Loggerhead DPS. 22

23 24 publication its final determination concerning the designation of terrestrial critical habitat for the 25

Northwest Atlantic Ocean Loggerhead DPS. 26

2. On or before July 1, 2014, FWS shall submit to the Federal Register for

3. On or before July 1, 2014, to the extent NMFS has published a proposed rule to

2 designate critical habitat under paragraph 1, supra, NMFS shall submit to the Federal Register 3 for publication its final determination concerning the designation of marine critical habitat for 4 the Northwest Atlantic Ocean Loggerhead DPS and North Pacific Ocean Loggerhead DPS. 5

4. Either party may seek to modify the deadlines for the actions specified in Paragraphs 1, 2, and 3, for good cause shown, consistent with the Federal Rules of Civil 7

Procedure. In that event, or in the event that either party believes that the other party has failed to 8 comply with any term or condition of this Stipulation, the Parties shall use the dispute resolution 9 procedures specified in Paragraph 5 below. 10

11 12 cause shown, consistent with the Federal Rules of Civil Procedure, by written stipulation 13 between the Parties filed with and approved by the Court, or upon written motion filed by one of 14 the Parties and granted by the Court. In the event that either party seeks to modify the terms of 15 this Stipulation, including the deadlines specified in Paragraphs 1, 2, and 3, or in the event of a 16 dispute arising out of or relating to this Stipulation, or in the event that either party believes that 17 the other party has failed to comply with any term or condition of this Stipulation, the party 18 seeking the modification, raising the dispute, or seeking enforcement shall provide the other 19 party with notice of the claim. The Parties agree that they will meet and confer (either 20 telephonically or in person) at the earliest possible time in a good faith effort to resolve the claim 21 before seeking relief from the Court. If the Parties are unable to resolve the claim themselves, 22 either party may seek relief from the Court. In the event that NMFS fails to meet the deadlines 23 24 identified in paragraphs 1 or 3, and has not sought by motion to modify them, or FWS fails to 25 meet the deadline identified in Paragraph 2, and has not sought by motion to modify it, Plaintiffs' 26

5. The Order entering this Stipulation may be modified by the Court upon good first remedy shall be a motion to enforce the terms of this Stipulation. This Stipulation shall not, 2 in the first instance, be enforceable through a proceeding for contempt of court. 3

6. The Parties have not resolved Plaintiffs' request for costs and attorneys' fees, but

4 the Parties intend to negotiate in an effort to reach an agreement on any such claim. If the Parties 5 are unable to reach agreement within 60 days of filing this settlement, the Plaintiffs reserve the 6 right to file a claim with this Court, and the Federal Defendants reserve the right to oppose and 7 contest any such claim. 8

9 does not constitute a reasonable time line for making a determination under 16 U.S.C. § 1533 in 10 any other proceeding regarding FWS' or NMFS' implementation of the ESA. 11 12

8. Subject to the qualifications in paragraph 9, no provision of this Stipulation shall

7. No party shall use this Stipulation or the terms herein as evidence of what does or

13 be interpreted as, or constitute, a commitment or requirement that the Federal Defendants take 14 action in contravention of the ESA, the Administrative Procedure Act ("APA"), or any other law 15 or regulation, either substantive or procedural. Nothing in this Stipulation shall be construed to 16 limit or modify the discretion accorded to FWS or NMFS by the ESA, the APA, or general 17 principles of administrative law with respect to the procedures to be followed in making any 18 determination required herein, or as to the substance of any final determination. 19

9. Nothing in this Stipulation shall be interpreted as, or shall constitute, a 20 requirement that the Federal Defendants are obligated to pay any funds exceeding those 21 available, or take any action in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or 22 any other appropriations law. 23 24

10. The terms of this Stipulation constitute the entire agreement of the Parties, and no 25 statement, agreement, or understanding, oral or written, which is not contained herein, shall be recognized or enforced. Except as expressly stated herein, this Stipulation supersedes all prior 2 agreements, negotiations, and discussions between the Parties with respect to the subject matters 3 discussed herein. 4

11. This Stipulation may be modified or amended only by order of this Court.

12. Each of the Parties' undersigned representatives certifies that they are fully

6 authorized to enter into and execute the terms and conditions of this Stipulation, and do hereby 7 agree to the terms herein. 8

13. The terms of this Stipulation shall become effective upon entry of an order by the

Court ratifying the Stipulation. 10

14. This Stipulation has no precedential value and shall not be used as evidence of 11 12 such in any litigation or in representations before any forum or public setting. 13

15. Upon approval of this Stipulation by the Court, all counts of Plaintiffs' Complaint

14 shall be dismissed with prejudice. Notwithstanding the dismissal of this action, however, the 15

Parties hereby stipulate and respectfully request that the Court retain jurisdiction to resolve any 16 claims regarding attorneys' fees, oversee compliance with the terms of this Stipulation and to 17 resolve any motions to modify such terms. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 18 U.S. 375 (1994). 19

[PROPOSED] ORDER

The terms and conditions of this Stipulated Settlement Agreement are hereby adopted as 3 an enforceable ORDER of this Court, and this matter is hereby DISMISSED with prejudice. 4

Dated: This _____th day of ___________, 2013.

CERTIFICATE OF SERVICE

I hereby certify that on April 2, 2013, I caused the foregoing to be served via United States mail to the attorneys of record. 15 16

J. Brett Grosko


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