Free Settlement Agreement - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-02300-RPM-PAC CENTER FOR NATIVE ECOSYSTEMS; COLORADO NATIVE PLANT SOCIETY; UTAH NATIVE PLANT SOCIETY; and SOUTHERN UTAH WILDERNESS ASSOCIATION, Plaintiffs, vs. GALE NORTON, Secretary of the United States Department of the Interior; and MATTHEW HOGAN1 , Acting Director of the United States Fish and Wildlife Service, Defendants.

STIPULATED SETTLEMENT AGREEMENT

Plaintiffs Center for Native Ecosystems, Colorado Plant Society, Utah Native Plant Society, and Southern Utah Wilderness Association, ("the Plaintiffs") by Robin Cooley, Esq., and Defendants Gale Norton, Secretary of the United States Department of the Interior, and Matthew Hogan Williams, Director of the United States Fish and Wildlife Service, by William J. Leone, United States Attorney and Elizabeth A. Weishaupl, Assistant United States Attorney, hereby agree and stipulate as follows: WHEREAS, in October 2002, the Plaintiffs petitioned Defendants to list

Mr. Hogan is substituted for Mr. Williams as Acting Director of the United States Fish and Wildlife Service pursuant to Fed. R. Civ. P. 25(d)(1).

1

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Graham's penstemon (Penstemon grahamii) under the Endangered Species Act ("ESA"). 16 U.S.C. § 1533(b)(3)(A). Plaintiffs filed a complaint on November 18, 2003,

challenging an alleged failure to make ninety (90) day or twelve (12) month findings regarding Graham's penstemon. WHEREAS, on May 4, 2004, Defendant's published a Candidate Notice of Review ("CNOR") retaining the warranted but precluded status for the Graham's penstemon, but changing its listing number from a 5 to a 2. WHEREAS, in response to the May 4, 2002 CNOR, the parties stipulated to stay the litigation in order to allow Plaintiffs to administratively exhaust their remedies with regard to the CNOR listing and permit them to amend their complaint. Plaintiffs filed an amended Complaint on October 1, 2004, seeking declaratory and injunctive relief. WHEREAS, Plaintiffs and Defendants, through their authorized representatives, and without any admission or final adjudication of the issues of fact or law with respect to Plaintiffs' claims, have reached a settlement that they consider to be just, fair, adequate, and an equitable resolution of the disputes set forth in Plaintiffs' amended complaint. WHEREAS, Plaintiffs and Defendants agree that settlement of this action in this matter is in the public interest and is an appropriate way to resolve the dispute between them. NOW, THEREFORE, IT IS STIPULATED BY AND BETWEEN THE PARTIES AS FOLLOWS:

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1. The Service shall submit for publication in the Federal Register a proposed listing rule regarding Graham's penstemon, including a prudency determination for critical habitat, and if prudent, a proposed critical habitat rule to the Federal Register by December 9, 2005. 2. The Service also agrees to submit final determinations on listing and

critical habitat, if prudent to the Federal Register by December 8, 2006. 3. Either party may seek to modify the deadline for any actions specified in

Paragraphs 1 and 2 for good cause shown. In that event, or in the event that either party believes that the other party has failed to comply with any terms or conditions of this Agreement, the parties shall use the dispute resolution procedures specified in Paragraph 4. 4. The Order entering this Settlement Agreement ("Agreement") may be

modified by the Court upon a showing of good cause shown by written stipulation between the parties, filed with and approved by the Court, or upon written motion filed by one of the parties and granted by the Court. In the event that either party seeks to modify the terms of this Agreement, including the deadline for the actions specified in Paragraph 1 and 2, or in the event of a dispute arising out of or relating to this Agreement, or in the event that either party believes that the other party has failed to comply with any term or condition of this Agreement, the party seeking the modification, raising the dispute or seeking enforcement, shall provide the other party with written notice of claim. The parties agree that they will meet and confer (in person not required)

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at the earliest possible time in a good faith effort to resolve the claim before bringing any matter to the Court. If the parties are unable to resolve the claim within 30 days after the receipt of the written notice, either party may bring the claim to the Court. 5. No party shall use this Agreement or the terms herein as evidence of what

does or does not constitute a reasonable timeline for a final listing determination or designation of critical habitat in any other proceeding regarding the Service's implementation of the ESA. 6. Defendants agree that Plaintiffs are "prevailing parties" in this action, and

agree to pay Plaintiffs' reasonable attorney's fees and costs, pursuant to Section 11(g) of the ESA, 16 U.S.C. § 1540(g). Therefore, the Plaintiffs agree to settle all claims for attorney's fees and costs in the above captioned litigation for the total amount of $36,000.00. A check shall be made payable in that amount to Plaintiffs' undersigned counsel Robin Cooley. Plaintiffs further understand and acknowledge that the check should be received within 6 to 9 weeks of the receipt of an order dismissing the action. 7. Defendants agree to submit all paper work to the Department of the

Treasury's Judgement Fund pursuant to 16 U.S.C. § 1540(b)(4), within ten (10) business days of receipt of the signed court order approving this stipulation and dismissing the action with prejudice. 8. Plaintiffs agree to accept payment of $36,000.00 in full satisfaction of any

and all claims for attorneys fees and costs of litigation to which Plaintiffs are entitled in the above captioned litigation, through and including the date of this agreement.

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9.

Plaintiffs agree that receipt of this payment from Defendants shall operate

as a release of Plaintiff's claims for attorney's fees and costs in this matter, through and including the date of this agreement. 10. The parties agree that Plaintiffs reserve the right to seek additional fees and

costs incurred subsequent to this agreement arising from a need to enforce or defend against efforts to modify the underlying schedule outlined in Paragraph 1, or for any other unforeseen continuation of this action. 11. By this agreement, Defendants do not waive any right to contest fees

claimed by Plaintiffs or Plaintiffs' counsel, including the hourly rate, in any future litigation or continuation of the present action. Further this stipulation as to attorneys' fees and costs has no precedential value and shall not be used as evidence in any other attorneys' fees litigation. 12. Subject to the qualifications in Paragraph 14, no provision of this

Agreement shall be interpreted as, or constitute, a commitment or requirement that Defendant take action in contravention of the ESA, the Administrative Procedure Act ("APA"), or any other law or regulation, either substantive or procedural. Nothing in this Settlement Agreement shall be construed to limit or modify the discretion accorded to the Service by the ESA, the APA, or general principles of administrative law with respect to the procedures to be followed in making any determination required herein, or as to the substance of any final determination. 13. Defendants assert that no provision of this Agreement shall be interpreted

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as, or constitute, a commitment or requirement that Defendants are obligated to spend funds in violation of the Anti-Deficiency Act, 31 U.S.C. § 1341. Plaintiffs assert that (a) this Agreement and its terms do not create a conflict with the Anti-Deficiency Act because the duty to finalize proposed listings and critical habitat determinations is required in non-discretionary terms by the ESA, and (b) the Anti-Deficiency Act does not excuse compliance with this pre-existing, court-approved Agreement particularly where deadlines have been agreed to based on assessments of agency resources. Plaintiffs intend to assert this position if Defendant fails to comply with the terms of this agreement for reasons of insufficient appropriations. The Service reserves all legal and equitable defenses to such a claim. 14. The parties agree that this Agreement was negotiated in good faith and that

it constitutes a settlement of allclaims that were raised or which could have been raised in Civil Action No. 03-cv-02300-RPM-PAC ("the Civil Action") which claims were and are vigorously contested, denied, and disputed by the parties. 15. The undersigned representatives of each party certify that they are fully

authorized by the party or parties they represent to agree to the Court's entry of the terms and conditions of this Agreement and do hereby agree to the terms herein. 16. The terms of this Agreement become effective upon the entry of an order

by the Court ratifying this agreement. 17. Upon approval of this Agreement by the Court, the Amended Complaint

shall be dismissed with prejudice, pursuant to Fed. R.Civ. P. 41(a)(1).

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18. Not withstanding the dismissal of this action, with prejudice, the parties hereby respectfully request that the United States District Court for the District of Colorado retain jurisdiction to oversee compliance with the terms of this Agreement and to resolve any motions to modify such terms. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994). DATED this 23rd day of September 2005. Respectfully submitted, s/ Robin Cooley Robin Cooley James Jay Tutchton Environmental Law Clinical Partnership University of Denver Sturm College of Law 2255 E. Evans Ave., Rm. 365G Denver, CO 80208 Phone: 303-871-6034 Fax: 303-871-6991 Email: [email protected] [email protected] WILLIAM J. LEONE Acting United States Attorney s/ Elizabeth A. Weishaupl Elizabeth A. Weishaupl Assistant United States Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Phone:303-454-0100 Fax: 303-454-0404 Email: [email protected]

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF)

I hereby certify that on September 23, 2005 I electronically filed the foregoing with the Clerk of Court using the ECF system which will send notification of such filing to the following e-mail addresses:

[email protected]; [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the nonparticipant's name:
Debra Hecox Office of the Regional Solicitor Department of the Interior 755 Parfet Street, Suite 151 Lakewood, CO 80215 s/ Elizabeth A. Weishaupl Elizabeth A. Weishaupl Attorney for Defendant United States Attorney's Office 1225 17th Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Fax: (303) 454-0404 E-mail: [email protected]

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