Case 3:15-cv MMC Document 32 Filed 08/26/16 Page 1 of 10

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1 Case :-cv-0-mmc Document Filed 0// Page of 0 0 JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division United States Department of Justice DAVID B. GLAZER (D.C. 00) Natural Resources Section Environment & Natural Resources Division United States Department of Justice 0 Howard Street, Suite 00 San Francisco, California 0 TEL: () - FAX: () - david.glazer@usdoj.gov Attorneys for Federal Defendant UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION PACIFIC COAST FEDERATION OF FISHERMEN S ASSOCIATIONS, et al., Plaintiffs, v. ANN CARLSON, et al., Defendants. No. :-cv- MMC STIPULATION OF SETTLEMENT Date: N/A Time: N/A Courtroom No. Hon. Maxine M. Chesney Pacific Coast Federation of Fishermen s Associations, et al. v. Carlson, et al., No. :-cv- MMC Stipulation of Settlement

2 Case :-cv-0-mmc Document Filed 0// Page of 0 0 WHEREAS Plaintiffs filed suit on November,, under the Wild and Scenic Rivers Act ( Act ), U.S.C., seeking an order of Court requiring the U.S. Forest Service to prepare a Comprehensive Resource Management Plan ( CRMP ) and to designate final river corridor boundaries for segments of Black Butte River and Cold Creek designated by Congress under the Act in 0 and flowing through the Mendocino National Forest; WHEREAS Federal Defendants U.S. Forest Service; Ann Carlson, Forest Supervisor of the Mendocino National Forest; and Thomas Vilsack, Secretary of Agriculture, state that they have designated interim corridor boundaries for the river segments at issue and have incorporated into the Mendocino National Forest Plan management direction for those segments consistent with the protections required under the Act; WHEREAS Plaintiffs dispute that the protections currently in place for the designated river segments are fully compliant with the Act; and public interest, WHEREAS the Parties desire to settle their dispute in good faith and, in so doing, to further the IT IS NOW, THEREFORE, STIPULATED AS FOLLOWS:. Solely in settlement of this action, Federal Defendants shall undertake the following: a. Federal Defendants shall designate final river corridor boundaries and develop a CRMP for the segments of Black Butte River and Cold Creek designated under the Act in accordance with the schedule attached as Attachment A hereto. b. Pending compliance with the deadlines described in Paragraph a, above, Federal Defendants will not implement the Clifton Ridge Underburn and Twin Rocks fuel break projects. c. Pending compliance with the deadlines described in Paragraph a, above, Federal Defendants will not propose or implement new land management projects within the Pacific Coast Federation of Fishermen s Associations, et al. v. Carlson, et al., No. :-cv- MMC Stipulation of Settlement

3 Case :-cv-0-mmc Document Filed 0// Page of 0 0 interim river corridor boundaries established under the Mendocino National Forest Plan for the segments of Black Butte River and Cold Creek designated under the Act; however, nothing in this Paragraph prevents the Forest Service from undertaking routine and preventative maintenance and emergency actions such as may be required from time to time. d. Pending compliance with the deadlines described in Paragraph a, above, Federal Defendants will provide Plaintiffs with 0 days notice of any projects proposed for areas outside the interim river corridor boundaries established under the Mendocino National Forest Plan for the segments of Black Butte River and Cold Creek designated under the Act and within the following watersheds: Shields, Jumpoff, Sallady, White Hawk, Blue Slide, Atchison, Baldy, Lower Cold, and Skidmore. This notice provision does not apply to emergency actions and routine and preventative maintenance actions such as may be required from time to time, including but not limited to repair and maintenance of roads, trails, and landline boundaries, culvert maintenance and replacement, hazard tree removal, and the like.. In the event of a dispute among the Parties concerning the interpretation or implementation of any aspect of this Stipulation, the disputing Party shall provide the other Party with a written notice outlining the nature of the dispute and requesting informal negotiations. The Parties shall meet and confer to attempt to resolve the dispute. If the Parties cannot reach an agreed-upon resolution after days following receipt of a written notice requesting informal negotiations or such longer time agreed to by the Parties, any Party may move the Court to resolve the dispute.. No motion or other proceeding seeking to enforce this Stipulation or for contempt of court shall be properly filed unless the Party seeking to enforce this Stipulation has followed the procedure set forth in Paragraph, above, and the Party believes there has been noncompliance with an order Pacific Coast Federation of Fishermen s Associations, et al. v. Carlson, et al., No. :-cv- MMC Stipulation of Settlement

4 Case :-cv-0-mmc Document Filed 0// Page of 0 0 issued under Paragraph. In addition, this Stipulation shall not, in the first instance, be enforceable through a proceeding for contempt of court.. The Parties recognize that the possibility exists that a lapse in appropriations that fund the Department of Agriculture or a mandatory transfer or redirection of Forest Service appropriated funds to support firefighting or other urgent resource management response efforts could delay compliance with the timetables contained in this Stipulation. Should a delay occur due to a lapse in appropriations or mandatory redirection of funds, any resulting failure to meet the timetables set forth herein shall not constitute a failure to comply with the terms of this Stipulation, and any deadlines shall be automatically extended one day for each day of the delay. Nothing in this paragraph shall preclude the Federal Defendants from seeking an additional extension through modification of this Stipulation pursuant to Paragraph, below. The Parties recognize and acknowledge that the obligations imposed upon the Federal Defendants under this Stipulation can only be undertaken using appropriated funds legally available for such purpose. No provision of this Stipulation shall be interpreted as or constitute a commitment or requirement that the United States obligate or pay funds in contravention of the Anti-Deficiency Act, U.S.C., or any other applicable provision of law.. The Order entering this Agreement may be modified by the Court only by written stipulation of the Parties filed with and approved by the Court, or upon good cause shown by written motion filed by one of the Parties pursuant to Paragraph and granted by the Court. In the event that Federal Defendants fail to meet a deadline in Paragraph.a, above, and have not sought to modify it, or have failed to meet a deadline modified by the Court, Plaintiffs shall proceed in accordance with Paragraphs and, above.. The Parties agree to settle Plaintiffs entire claim for attorneys fees, costs, and expenses under the Equal Access to Justice Act, U.S.C., or any other authority, incurred in this action through the date this Stipulation is entered by the Court for a total of $0,0. Pacific Coast Federation of Fishermen s Associations, et al. v. Carlson, et al., No. :-cv- MMC Stipulation of Settlement

5 Case :-cv-0-mmc Document Filed 0// Page of 0 0. Plaintiffs agree to furnish Federal Defendants with the information necessary to effectuate the payment specified in Paragraph, above, including payees bank account number, routing number, and tax identification number. Federal Defendants agree to pay the agreed amount to Volker Law Office Client Trust Account, for appropriate distribution. Federal Defendants agree to submit all necessary paperwork to effectuate a transfer of funds within days after (a) the Court enters the Parties Proposed Stipulation of Dismissal or (b) Plaintiffs provide Federal Defendants with the information necessary to effectuate the transfer of funds, whichever is later. Plaintiffs agree to provide confirmation of receipt of payment to counsel for Federal Defendants within days of receipt of payment.. Plaintiffs represent that the proper entity to receive payment pursuant to this Stipulation is Volker Law Office Client Trust Account and that the payment information provided pursuant to Paragraph, above, is the correct information to effect such payment. Plaintiffs and Plaintiffs counsel release and hold Federal Defendants harmless from any liability for attorneys fees, expenses, and costs or other claims that might be made as to any apportionment of the payment amount between the Plaintiffs and between those parties and Plaintiffs counsel. Except for the obligations specifically required of Federal Defendants under this Stipulation, Plaintiffs agree to hold Federal Defendants harmless in any litigation, further suit, or claim arising from the payment of the agreed-upon $0,0 settlement amount as provided herein.. Receipt of the payment specified in Paragraph, above, shall operate as a release of any and all claims for attorneys fees, expenses, and costs incurred in connection with this litigation through the date of entry of this Stipulation. 0. Under U.S.C., ; U.S.C. 0(d); C.F.R.., 0.; and other authorities, the United States will offset against the payment made pursuant to this Stipulation Plaintiffs delinquent debts to the United States, if any. See Astrue v. Ratliff, 0 U.S. (0).. No provision of this Agreement shall be interpreted as, or constitute, a commitment or Pacific Coast Federation of Fishermen s Associations, et al. v. Carlson, et al., No. :-cv- MMC Stipulation of Settlement

6 Case :-cv-0-mmc Document Filed 0// Page of 0 0 requirement that Federal Defendants take action in contravention of the Act or any other law or regulation, either substantive or procedural. Nothing in this Agreement shall be construed to limit or modify the discretion accorded to Federal Defendants by the Act, the Administrative Procedure Act, U.S.C. et seq., 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 or be construed to deprive a federal official of the authority to revise, amend, or promulgate regulations.. The Parties agree that this Stipulation shall constitute a complete and final settlement of all claims that Plaintiffs asserted against the Federal Defendants in this action. To challenge the substance of the designation of final river corridor boundaries and Comprehensive Resource Management Plan to be completed pursuant to Paragraph.a, above, Plaintiffs must file a separate action. In such action, Plaintiffs reserve the right to challenge substantive decisions made by Federal Defendants pursuant to Paragraph.a, above, and Federal Defendants reserve the right to raise any applicable claims or defenses to such challenges.. Concurrently with this Settlement Agreement, the Parties shall file a stipulation of voluntary dismissal of this action. That stipulation will request that the Court retain jurisdiction to oversee compliance with the terms of this Stipulation and to resolve any disputes arising under this Stipulation and any motions to modify any of its terms. See Kokkonen v. Guardian Life Ins. Co. of Am., U.S. ().. The Parties agree that this Stipulation was negotiated in good faith and that it constitutes a settlement of substantive claims brought by Plaintiffs, as well as claims for fees, expenses, and costs, that were contested by the Parties. The Stipulation does not represent an admission by any Party of any fact, claim, or defense concerning any issue in this case. The Parties agree and acknowledge that this Stipulation is a compromise to avoid further litigation only and that it has no precedential value and shall not be used as evidence in any litigation except litigation to enforce the terms of this Stipulation. Pacific Coast Federation of Fishermen s Associations, et al. v. Carlson, et al., No. :-cv- MMC Stipulation of Settlement

7 Case :-cv-0-mmc Document Filed 0// Page of 0 0. It is hereby expressly understood and agreed that this Stipulation was jointly drafted by the Parties and that any and all rules of construction to the effect that ambiguity is construed against the drafting party shall be inapplicable in any dispute concerning the terms, meaning, or interpretation of this Stipulation.. This Stipulation contains the entire agreement between the Parties, and all previous understandings, agreements, and communications prior to the date hereof, whether express or implied, oral or written, relating to the subject matter of this Stipulation, are fully and completely extinguished and superseded by this Stipulation.. The undersigned representatives of each of the Parties certify that they are fully authorized by the Parties they represent to execute this Stipulation. The provisions of this Stipulation shall apply to and be binding upon each of the Parties including, but not limited to, their officers, directors, servants, employees, successors, and assigns and shall become effective upon filing with the Court.. All notices required under this Stipulation shall be provided by electronic or U.S. Mail and shall be addressed as follows: For the Plaintiffs STEPHAN C. VOLKER Law Offices of Stephan C. Volker - th Street, Suite 00 Oakland, CA Tel: (0) -000 Fax: (0) - svolker@volkerlaw.com / / / / / / Pacific Coast Federation of Fishermen s Associations, et al. v. Carlson, et al., No. :-cv- MMC Stipulation of Settlement

8 Case :-cv-0-mmc Document Filed 0// Page of 0 0 For the Federal Defendants Ritu Ahuja United States Department of Agriculture Office of the General Counsel 0 Sansome Street, Suite 00 San Francisco, California () - (telephone) () -0 (facsimile) ritu.ahuja@usda.gov Ann D. Carlson Forest Supervisor U.S. Forest Service Mendocino National Forest Berryessa Snow Mountain National Monument N. Humboldt Avenue Willows, California (0) - (telephone) (0) - (facsimile) adcarlson@fs.fed.us The parties are responsible for providing notice of any change in an or mailing address. SO STIPULATED: DATED: August, FOR THE PLAINTIFFS /s/ Stephan C. Volker STEPHAN C. VOLKER Law Offices of Stephan C. Volker - th Street, Suite 00 Oakland, CA Tel: (0) -000 Fax: (0) - svolker@volkerlaw.com FOR THE FEDERAL DEFENDANTS JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division /s/david B. Glazer DAVID B. GLAZER Natural Resources Section Pacific Coast Federation of Fishermen s Associations, et al. v. Carlson, et al., No. :-cv- MMC Stipulation of Settlement

9 Case :-cv-0-mmc Document Filed 0// Page of 0 Environment & Natural Resources Division United States Department of Justice 0 Howard Street, Suite 00 San Francisco, California Tel: () - Fax: () - David.Glazer@usdoj.gov Attorneys for Federal Defendant OF COUNSEL RITU AHUJA Office of General Counsel U.S. Department of Agriculture 0 ATTESTATION OF COUNSEL I attest that I have secured the concurrence of the counsel whose signature appears above as to the form and contents of this document and his authorization to file this document on his behalf, as evidenced by the conformed signature appearing above. DATED: August, /s/ David B. Glazer DAVID B. GLAZER Pacific Coast Federation of Fishermen s Associations, et al. v. Carlson, et al., No. :-cv- MMC Stipulation of Settlement

10 Case :-cv-0-mmc Document Filed 0// Page 0 of 0 CERTIFICATE OF SERVICE I, David B. Glazer, hereby certify that, on August,, I caused the foregoing to be served upon counsel of record through the Court s electronic service. I declare under penalty of perjury that the foregoing is true and correct. 0 Dated: August, /s/david B. Glazer David B. Glazer Pacific Coast Federation of Fishermen s Associations, et al. v. Carlson, et al., No. :-cv- MMC Stipulation of Settlement

11 Case :-cv-0-mmc Document - Filed 0// Page of Black Butte River Wild and Scenic River Comprehensive River Management Plan Proposed Timeline The overall purpose of this environmental analysis is to develop a comprehensive river management plan (CRMP) and boundary for the Black Butte River Wild and Scenic River segments (including Cold Creek). The proposed action will include final boundaries of the wild and scenic river corridor, direction to protect and enhance the outstanding remarkable values, water quality and free flow, and to develop a user capacity. Dates Steps Phase Project Development July Project Initiation Identify need for change and develop purpose, need for action and proposed action Phase NEPA September Public involvement: Scoping Issue and alternative development (based on comments received), including development of draft CRMP and boundaries Development of specialist reports September Preliminary NEPA analysis Public involvement: Notice and comment period Response to public comment and content analysis February Develop final analysis, final CRMP and boundaries, and draft decision; Begin objection period August Sign final decision document including CRMP and boundaries Phase Publish in Federal Register and Transmit to Congress September Publish notice of completion and availability of the CRMP in the Federal Register September Publish notice of availability of the final map and legal boundary in Federal Register September Transmit the final map and legal boundary to Congress Stipulation of Settlement Attachment A