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Northern California River Watch v. Oakland Maritime Support Services, Inc.

United States District Court, Ninth Circuit

January 16, 2014

NORTHERN CALIFORNIA RIVER WATCH, a non-profit corporation; TEAMSTERS LOCAL 70, a labor organization; and EAST BAY ALLIANCE FOR SUSTAINABLE ECONOMY, a non-profit organization, Plaintiffs,
v.
OAKLAND MARITIME SUPPORT SERVICES, INC., a corporation; WILLIAM ABOUDI, an individual; and JORGE GONZALEZ RIVERA d.b.a. CHRISTIAN BROTHERS TRUCK SERVICES, an individual; REDEVELOPMENT THE CITY OF OAKLAND, a local public agency, and CITY OF OAKLAND, a municipality; Defendants.

Michael R. Lozeau (State Bar No. 142893), Richard T. Drury (State Bar No. 163559), Douglas J. Chermak (State Bar No. 233382), LOZEAU DRURY LLP, Oakland, CA, Attorneys for Plaintiffs, NORTHERN CALIFORNIA RIVER WATCH, TEAMSTERS LOCAL 70, and EAST BAY ALLIANCE FOR A SUSTAINABLE ECONOMY.

MEREDITH E. BROWN, Attorney for Defendants, OAKLAND MARITIME SUPPORT SERVICES, INC. and WILLIAM ABOUDI.

ROBERT DOTY, Attorney for Defendants, CITY OF OAKLAND and REDEVELOPMENT AGENCY OF THE CITY OF OAKLAND.

JOINT STATUS REPORT RE SETTLEMENT REVIEW/APPROVAL PROCESS; REQUEST TO CONTINUE CASE MANAGEMENT CONFERENCE FOR APPROXIMATELY 30 DAYS; [PROPOSED] ORDER

CLAUDIA WILKEN, Chief District Judge.

As noted in the Joint Status Report filed on October 24, 2013 (Document No. 120), the parties have reached a settlement resolving all claims in this action. As also explained in the October Joint Status Report, the settlement cannot be approved by this Court until it has been reviewed by certain federal agencies. Specifically, Title 33 of the United States Code, Section 1365(c)(2) (a portion of the Clean Water Act) provides that "[n]o consent judgment shall be entered in an action in which the United States is not a party prior to 45-days following the receipt of a copy of the proposed consent judgment by the Attorney General and the Administrator [of the Environmental Protection Agency]". See also 40 C.F.R. § 135.5 (requiring settling parties to provide notice to the court of the 45-day agency review period under 33 U.S.C. § 1365(c)).

The 45-day review period required by Section 1365(c)(2) is underway. Notice was mailed to the federal agencies on December 20, 2013. On December 31, 2013, the federal agencies acknowledged receipt of the settlement agreement. Based on the acknowledgement correspondence, the parties anticipate that the federal agencies' review period will end on February 6, 2014 (allowing 45 days for the review itself and approximately nine days for mailing time).

If any of the reviewing agencies objects to the proposed Settlement Agreement, the parties would promptly attempt to meet and confer in an effort to resolve the federal agencies' concern(s). The parties might also elect to bring a motion seeking the Court's approval for the settlement notwithstanding the federal agencies' objection(s). In any event, once the 45-day review period runs early next month, the parties will be in a position to file with the Court either a Stipulation for Approval of Settlement Agreement or a notice (that the federal agencies have objected) and a proposal to the Court for how the matter should proceed.

The parties propose to make such a filing no later than February 19, 2014, so that if needed a CMC could be held on February 26th. The parties make that proposal in light of (1) the statutory requirement to await the conclusion of the federal agencies' 45-day review period, (2) the interests of efficiency and judicial economy, and the parties' shared desire to avoid unnecessary litigation expense, and (3) Oakland's counsel being unavailable (due to long planned out-of-state travel) to attend a CMC on February 19th (which would be the first available date consistent with the review period ending on February 6th and the Court's filing deadline for CMC statements).

The parties would stress that a CMC on February 26th is not a foregone conclusion. If the federal agencies do not raise any objection(s) to the Settlement Agreement, or if any such objection(s) can be promptly resolved in a fashion agreeable to all the stakeholders, the parties anticipate that they would simply file a Stipulation for an order approving the settlement and ultimately dismissing the action with prejudice. In that event, there would be no need for a CMC on February 26th, and the parties would of course so advise the Court as early as possible.

GOOD CAUSE APPEARING, and with the consent of all parties in this action, THE CASE MANAGEMENT CONFERENCE SET FOR JANUARY 22nd IS CONTINUED TO FEBRUARY 26, 2014, AT 2:00. IT IS SO ORDERED.


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