This Settlement Agreement and Release (the Agreement ) is entered into among

Transcription

1 Settlement Agreement and Release Fragosa v. Moore, No (9th Cir.) (C.D. Cal. No. 5:12cv01841); Wiechers v. Moore, Nos , (9th Cir.) (E.D. Cal. No. 1:13-CV ) This Settlement Agreement and Release (the Agreement ) is entered into among Plaintiffs (Richard Fragosa, Peter Wiechers, Alasdair Coyne, and John Karevoll) and Federal Defendant the U.S. Forest Service (including Randy Moore, in his official capacity as Regional Forester for the Pacific Southwest Region of the U.S. Forest Service). Each individual or entity named above is referred to in this Agreement as a Party or collectively as the Parties. Recitals WHEREAS, subject to specified limitations, the Federal Lands Recreation Enhancement Act (REA) authorizes Federal Defendant to collect a standard amenity recreation fee (SARF) at sites that possess specifically enumerated characteristics and amenities. 16 U.S.C. 6802(d), (f)(4). WHEREAS, Plaintiff Wiechers challenged Federal Defendant s implementation of REA at four SARF sites within the Sequoia National Forest. WHEREAS, Plaintiffs challenged Federal Defendant s implementation of REA at numerous SARF sites in the Angeles National Forest, the Cleveland National Forest, the Los Padres National Forest, and the San Bernardino National Forest. This Agreement refers to the four National Forests just mentioned as the Southern California National Forests. WHEREAS, on June 2, 2014, the United States District Court for the Eastern District of California entered judgment in favor of Federal Defendant, in part, and Plaintiff Wiechers, in part.

2 WHEREAS, on August 1, 2014, Plaintiff Wiechers filed a notice of appeal (Ninth Circuit No ) of the June 2, 2014, judgment. WHEREAS, on August 1, 2014, Federal Defendant filed a notice of appeal (Ninth Circuit No ) of the June 2, 2014, judgment. WHEREAS, on June 23, 2014, the United States District Court for the Central District of California entered judgment in favor of Plaintiffs. WHEREAS, on August 15, 2014, Federal Defendant filed a notice of appeal (Ninth Circuit No ) of the June 23, 2014, judgment. WHEREAS, Federal Defendant denies each and every claim and allegation asserted by Plaintiffs in the above-captioned cases. WHEREAS, Federal Defendant wishes to collect a SARF at sites that contain the characteristics and amenities specified in REA. WHEREAS, Plaintiffs wish to access trailheads in SARF sites without using the amenities specified in REA and without paying a SARF. WHEREAS, Plaintiffs and Federal Defendant desire, on the terms and conditions set forth below, to mutually settle the above-captioned cases. Agreement Now, therefore, in consideration of the aforementioned recitals and the mutual promises and agreements contained in this Agreement, and as a matter of compromise only, the Parties agree to the following: 1. List of SARF sites with trailheads in the Southern California National Forests. Attached as Exhibit A and made a part of this Agreement is a spreadsheet. The spreadsheet attached as Exhibit A lists all existing SARF sites that contain trailheads in the Southern California National Forests. As of the effective date of this 2

3 Agreement, Federal Defendant represents that, at each SARF site listed in Exhibit A, all six of the amenities required by REA are present and available within the boundaries of that site. Within the Southern California National Forests, Federal Defendant shall not charge a SARF at any site with a trailhead not listed in Exhibit A or added to Exhibit A by amendment, as specified in Paragraph 2 of this Agreement. Apart from the limitation just mentioned, nothing in this Agreement shall be construed to limit Federal Defendant s ability to charge recreation fees of any type (including SARFs) at any site not listed in Exhibit A. 2. Amendment of Exhibit A. If, during the term of this Agreement, either Party discovers in the Southern California National Forests a SARF site with a trailhead that existed on the effective date of this Agreement but does not appear in Exhibit A, Federal Defendant shall amend Exhibit A to include that SARF site and provide the amended Exhibit A to Plaintiffs. Federal Defendant retains authority to designate, in accordance with REA, additional SARF sites. Before designating an additional SARF site that contains a trailhead in the Southern California National Forests, Federal Defendant shall ensure that all six of the amenities required by REA are present, available, and grouped within the site, and that fee-free roadside parking within.5 miles of the trailhead exists. Upon the designation of any SARF site that contains a trailhead in the Southern California National Forests, Federal Defendant shall amend Exhibit A to include the new SARF site and provide the amended Exhibit A to Plaintiffs. Once added to Exhibit A, any newly designated SARF site shall be subject to all the terms of this Agreement. Federal Defendant retains discretion to use other legal authorities to collect fees at the sites listed in Exhibit A. If, at any time and for any reason, Federal Defendant decides to use another legal authority to collect recreation fees at a site listed in Exhibit 3

4 A, Federal Defendant shall amend Exhibit A to remove that site and provide the amended Exhibit A to Plaintiffs. Upon the removal of such a site from Exhibit A, this Agreement shall terminate with respect to the site at issue, as provided by Paragraph 17 of this Agreement. 3. Charging a SARF at sites listed in Exhibit A. Federal Defendant is not required to provide fee-free parking within the designated developed parking areas for the SARF sites listed in Exhibit A under this agreement. Except as provided in the immediately following subparagraphs, Federal Defendant will enforce SARF payment and issue notices of required fees within the SARF sites listed in Exhibit A, including for motor vehicles that are parked within the SARF site but do not display proof of fee payment. The following additional terms shall apply at the SARF sites listed in Exhibit A that are specified in the subparagraphs below: A. Heaps Peak: Federal Defendant shall not require proof of SARF payment from people who are sitting in their cars in the designated developed parking for this site. B. El Cariso: Cars parked at the visitor center marked on Exhibit B shall not be subject to a SARF. Federal Defendant shall ensure that signage at this site is consistent with that position. 4. Boundaries of SARF sites listed in Exhibit A. Federal Defendant shall ensure that the boundaries of the SARF sites listed in Exhibit A are clear to the public, including by posting signs at the sites and, where applicable, alongside the roadways. Federal Defendant shall update any existing SARF signage within the Southern California National Forests to be consistent with the terms of this Agreement. Federal Defendant shall make available to the public through the Federal Defendant s website 4

5 maps of the trail systems in the Southern California National Forests that shall delineate the SARF sites listed in Exhibit A from non-sarf sites. 5. Presently available fee-free roadside parking. Plaintiffs have visited each of the SARF sites listed in Exhibit A. Plaintiffs agree that acceptable roadside parking options are available within.5 miles of each SARF site listed in Exhibit A. Such roadside parking options may be used to access trailheads in the SARF sites listed in Exhibit A without paying a SARF as long as none of the amenities in the SARF site are used, including the designated developed parking. The following additional terms shall apply at the SARF sites listed in Exhibit A that are specified in the subparagraphs below: A. Dripping Springs: Federal Defendant shall ensure that signage at this site indicates a SARF is required only beyond the point marked on Exhibit C. B. Delta Flat: Federal Defendant shall ensure that signage at this site indicates a SARF is required only beyond the point marked on Exhibit D. C. Wildwood: Federal Defendant shall ensure that signage at this site indicates a SARF is required only beyond the point marked on Exhibit E. D. Switzer Day Use Area: Federal Defendant shall ensure that signage at this site indicates a SARF is required only beyond the point marked on Exhibit F. E. Aqua Dulce: Federal Defendant shall ensure that signage at this site indicates a SARF is required only beyond the point marked on Exhibit G. F. Pioneer Mail: Federal Defendant shall ensure that signage at this site indicates a SARF is required only beyond the point marked on Exhibit H. G. Big Falls/Vivian: Federal Defendant shall ensure that signage at this site indicates a SARF is required only within the area marked on Exhibit I. 5

6 6. Elimination of fee-free roadside parking. A. National Forest System roads. Along National Forest System roads, Federal Defendant shall strive to ensure the continuing availability of the fee-free roadside parking options that exist as of the effective date of this Agreement and that are located within.5 miles of the SARF sites listed in Exhibit A. However, Federal Defendant cannot guarantee that all existing fee-free roadside parking options will remain available for the term of this Agreement. Federal Defendant retains discretion to eliminate fee-free roadside parking options to address public safety, resource, or other management concerns, such as traffic or congestion problems or environmental resource damage as a result of over-use or natural events such as flooding or erosion. Federal Defendant also may eliminate fee-free roadside parking to comply with statutes, regulations, or other legal requirements. Plaintiffs shall work cooperatively with Federal Defendant to try to avoid the elimination of the available fee-free roadside parking options. B. State and county roads. Along state and county roads, the availability of roadside parking could change if the local public road authority chooses to impose parking restrictions in the future. Federal Defendant does not control county or state roads. However, Federal Defendant shall attempt to work with local public road authorities to try to prevent elimination of the fee-free roadside parking options that exist as of the effective date of this Agreement and that are within.5 miles of any SARF site listed in Exhibit A. Plaintiffs shall work cooperatively with Federal Defendant and local public road authorities to try to avoid the elimination of available fee-free roadside parking options. 6

7 C. Procedure if most fee-free roadside parking is eliminated. If, during the term of this Agreement and despite the Parties efforts, most fee-free roadside parking options within.5 miles of a SARF site listed in Exhibit A are eliminated, Federal Defendant shall have the option to provide some alternative fee-free parking within.5 miles of the SARF site at issue. Federal Defendant shall attempt to consult with Plaintiffs concerning the precise location and amount of such alternative fee-free parking. However, Federal Defendant ultimately shall decide, in its sole discretion, whether to provide alternative fee-free parking and the precise location and amount of such parking. Federal Defendant shall make that decision within 60 days of the elimination of most fee-free roadside parking options at a SARF site listed in Exhibit A. If Federal Defendant decides not to provide some alternative fee-free parking within.5 miles of the SARF site at issue, Plaintiffs sole recourse shall be to file a new lawsuit to assert any rights they may have at that time under REA with respect to the particular SARF site at issue. The aforementioned limited exception to Plaintiffs release, waiver, and covenant not to sue Federal Defendants operates only prospectively (i.e., for events occurring after Federal Defendant decides not to provide some alternative fee-free parking within.5 miles of the SARF site at issue), and therefore does not revive any past claims Plaintiffs may have had concerning Federal Defendant s collection of SARFs. 7. Attorneys Fees and Costs. Attorneys fees and costs are outside the scope of this Agreement except as follows: After the dismissal of the Parties appeals pursuant to Paragraph 17 of this Agreement, the Parties agree to promptly negotiate in good faith concerning attorneys fees and costs. In the event the Parties cannot come to an 7

8 agreement, Plaintiffs retain the ability to file motions for such fees and costs. 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 the terms of this Agreement, and that Defendants reserve the right to contest fees and costs claimed by Plaintiffs or Plaintiffs counsel out of a need to enforce the terms of this agreement. 8. Release of claims and covenant not to sue. This Agreement constitutes the complete and final resolution of all legal, equitable, and administrative claims arising out of or in any way associated with Plaintiffs Complaints in the above-captioned cases and which Plaintiffs have asserted or could have asserted in those cases. In exchange for Federal Defendant s commitments in this Agreement, and except as provided by Paragraphs 6.C and 7 of this Agreement, Plaintiffs and their respective affiliates, successors, and assigns hereby unconditionally and irrevocably release, waive, covenant not to sue, and forever discharge Federal Defendant (including its past, present, and future officers, agents, and affiliates) from any and all claims, causes of action, allegations, demands, suits, judgments, liabilities, fees, interests, or obligations, whether known or unknown, foreseen or unforeseen, disclosed or undisclosed, presently asserted or otherwise, regarding, arising out of, or in any way associated with Plaintiffs Complaints in the above-captioned cases and/or Federal Defendant s collection of SARFs within the Southern California National Forests and the three SARF sites on which Federal Defendant prevailed in Wiechers v. Moore (E.D. Cal. No. 1:13-CV ). Termination of this Agreement shall not vitiate this release, waiver, and covenant not to sue with respect to any claims, causes of action, allegations, demands, suits, judgments, liabilities, fees, interests, or obligations existing at or before the Agreement s termination. 8

9 9. No other actions. Plaintiffs represent that, with the exception of the abovecaptioned cases, they have not filed any complaints, claims, charges, or actions and do not have any other unresolved complaints, claims, charges, or actions against Federal Defendant (including its officers, agents, and affiliates) with any state, federal, or local agency or court concerning Federal Defendant s collection of SARFs in the Southern California National Forests or the three SARF sites on which Federal Defendant prevailed in Wiechers v. Moore (E.D. Cal. No. 1:13-CV-00223). Plaintiffs further agree that they will not encourage or actively solicit others to pursue litigation regarding the collection of SARFs in Southern California National Forests or the three SARF sites on which Federal Defendant prevailed in Wiechers v. Moore (E.D. Cal. No. 1:13-CV ), or materially support, either by funding or providing legal assistance in, such litigation filed by another party. The prohibition of solicitation and material support for litigation by others does not preclude Plaintiffs from providing information concerning SARFs to other organizations or individuals, if requested. 10. Dispute resolution. The Parties shall cooperatively address any dispute over compliance with any term or condition of this Agreement. If an issue or dispute arises, Plaintiffs shall notify the Regional Forester for the Pacific Southwest Region in writing of the nature of the issue or dispute. Notice shall be sent to the following address: Regional Forester Forest Service Pacific Southwest Region 1323 Club Drive Vallejo, California The Parties shall meet and confer (either by telephone or in person) at the earliest possible time in a good faith effort to resolve any requests, disputes, or claims before seeking further relief. If the Parties are unable to reach an agreement within 60 days of 9

10 the receipt of a request, dispute, or claim, or such longer time to which the Parties agree, the Parties may seek relief from this Court. The district court in Fragosa v. Moore, No. 5:12cv01841 (C.D. Cal.), shall retain jurisdiction solely to enforce the terms of this Agreement. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994). Only the named Parties to this Agreement may enforce its terms. The Parties agree that contempt of court is not available as a remedy for any violation of this Agreement, and the Parties therefore knowingly waive any right that they might have to seek an order of contempt for any such violation. 11. Entire agreement. This Agreement contains the entire agreement among the Parties and constitutes the complete, final, and exclusive embodiment of their agreement with respect to the subject matter hereof, and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged into and superseded by this Agreement. This Agreement may not be modified except in a writing signed by each of the Parties and their respective attorneys. This Agreement shall be interpreted according to the plain meaning of its terms and not strictly for or against either Party. 12. No admission of liability or precedent. This Agreement is the result of compromise and settlement of disputed claims and stems solely from the desire to expeditiously resolve disputed issues of law and fact and to avoid the expense of contested litigation. Neither this Agreement nor compliance with this Agreement represents an admission by any Party to any fact, claim, defense, liability, or unlawful conduct concerning any issue in the above-captioned cases. Nothing in this Agreement shall be construed or deemed to be an admission of any violation of any applicable law, regulation, or order. This Agreement has no precedential value and shall not be used as 10

11 evidence of such in any litigation or in representations before any forum or public setting. 13. Power to regulate. Nothing in this Agreement shall be construed to limit or deny the power of a federal official to promulgate or amend regulations. 14. Compliance with other laws. Nothing in this Agreement shall be interpreted as or constitute a commitment or requirement that Federal Defendant take any action in contravention of any applicable law, including REA, or obligate or pay funds in violation of the Anti-Deficiency Act, 21 U.S.C. 1134, or any other applicable appropriations law. 15. Signatures required. Each of the Parties undersigned representatives certifies that they are fully authorized to enter into and execute the terms and conditions of this Agreement, and do hereby agree to the terms herein. Each Party shall sign this agreement and include the date of each Party s signature. This Agreement may be executed in two or more identical counterparts. The signatures of all Parties do not have to be contained on any one counterpart, and each counterpart shall constitute the same agreement. 16. Effective date. Within ten business days of the last signature required by Paragraph 15 of this Agreement, the Parties shall file with the U.S. Court of Appeals for the Ninth Circuit the attached requests for dismissal of the appeals in the abovecaptioned cases. (Exhibit J.) The dismissals shall be effective as to all Parties named in the appeals and shall be without prejudice to reinstatement of the appeals if the district court denies the Parties joint motion to effectuate this Agreement. Within ten business days of the Ninth Circuit s order dismissing all the appeals, the Parties shall file a joint motion requesting the district court in Fragosa v. Moore, No. 5:12cv01841 (C.D. Cal.), to vacate the injunction contained in its order and judgment (Dkt. ## 32, 34) and retain 11

12 jurisdiction to enforce this Agreement. The effectiye date of this Agreement shall be the date of the district court's order granting the motion in full. If the district court does not grant the motion in full, this Agreement shall be of no further force or effect, and the Parties may move to reinstate their appeals. 17. Termination. This Agreement may be terminated by mutual agreement of the Parties. This Agreement shall terminate with respect to any SARF site listed in Exhibit A if, at any time and for any reason, Federal Defendant decides to use another legal authority to collect recreation fees at that site. This Agreement shall terminate if an amendment to REA changes, in any way, Federal Defendant's SARF authority or if REA is repealed or replaced. If none of the aforementioned events has occurred, this Agreement shall terminate no later than 3 years from its effective date. ' /} j/ / I!/'--- ~Lw -~ t,,.1r~ ~. Mau I<.enna Attorney for Plaintiffs 679 E. 2nd Ave., Suite 11B Durango, CO. 81:~01 ( 970) matt@kenna.net s/ Nie o,, asc.10 Attorney for Federal Defendant U.S. DO.J, ENRD th St., Suite 370 Denver, CO ('.303) nicholas.dimascio(a)usdoj.gov s;(f~./ L ~,:. / Datez/ 2 - >/ ~ Rene Voss Attorney for Plaintiffs (415) renepvoss@gmail.com Alison D. Attorney Federal Defendant U.S. DO.J, ENRD P.O. Box. 76'11 Washington, DC (202) alison.garner(qjusdoj.gov 12

13 Exhibit A (Amended June 21, 2016) Standard Amenity Recreation Fee Sites with Trailheads in the Angeles, Cleveland, Los Padres, and San Bernardino National Forests Angeles National Forest: 6000 Day Use Area Buckhorn Station Day Use Area Burkhardt Trailhead Chantry Flats Day Use Charlton Flat Day Use Chialo Picnic Area Colby Bridge Day Use Delta Flat Day Use Devil s Canyon Day Use Area Eagle Roost Day Use Area East Fork Gassy Hollow Picnic Icehouse Trailhead Indian Canyon Trailhead Inspiration Point Islip Saddle Day Use Jarvi Memorial Day Use Mill Creek Summit Picnic Millard Day Use Mt. Pacifico Trailhead North Fork Picnic Oak Springs Picnic Oak Springs Trailhead Piru Ponds Day Use Pony Park Day Use Red Box Picnic Skyline Park Stonyvale Day Use Switzer s Picnic Three Points Day Use Upper Bear Creek Vincent s Gap Vogel Flat Day Use West Fork Trailhead

14 Wildwood Day Use Wilson Saddle Windy Gap (Little Jimmy) Trailhead Cleveland National Forest: Aqua Dulce Trailhead Dripping SpringsTrailhead El Cariso Picnic Falcon Trailhead (at Blue Jay) Holy Jim Trailhead Hotsprings Trailhead Laguna Trailhead Maple Springs Trailhead Meadows Trailhead Pine Creek Trailhead Pioneer Mail San Juan Trailhead (at Blue Jay) Tenaja Trailhead Los Padres National Forest: Piedra Blanca San Bernardino National Forest: Aspen Glen Big Falls & Vivian Trailhead Bonita Falls Trailhead Children s Forest Cougar Crest Falls Picnic Grays Peak Trailhead Heaps Peak Trailhead Humber Park Juniper Point Meadows Edge Middle Fork South Fork Splinter Cabin Woodland Trailhead 2

15 Exhibit B - El Cariso

16 Exhibit C - Dripping Springs

17 Exhibit D - Delta Flats

18 Exhibit E - Wildwood

19 Exhibit F - Switzer

20 Exhibit G - Aqua Dulce

21 Exhibit H - Pioneer Mail

22 Exhibit I - Big Falls/Vivian

23 EXHIBIT J STIPULATION TO DISMISS APPEALS WITHOUT PREJUDICE Nos IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RICHARD FRAGOSA; PETER WIECHERS; ALASDAIR COYNE; and JOHN KAREVOLL, Plaintiffs-Appellees -v.- RANDY MOORE and U.S. FOREST SERVICE, Defendants-Appellants ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA (HON. TERRY J. HATTER) STIPULATION TO DISMISS APPEALS WITHOUT PREJUDICE The parties, having reached a settlement of the present matter, hereby stipulate that the appeal be dismissed so that jurisdiction may re-vest in the district court in Fragosa v. Moore, No. 5:12- cv (C.D. Cal.), to approve the referenced settlement. This dismissal shall be without prejudice to Appellants reinstating the appeal within twenty eight (28) days of the district court s order denying approval of said settlement. Pursuant to Circuit Rule , the parties further move the Court to transfer the issue of attorney fees on appeal to the district court. Respectfully submitted, s/ Matt Kenna & Rene Voss Attorneys for Plaintiffs-Appellees Date s/ Nicholas A. DiMascio Attorney for Defendants-Appellants

24 EXHIBIT J STIPULATION TO DISMISS APPEALS WITHOUT PREJUDICE Nos , IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PETER WIECHERS, Plaintiff-Appellant and Cross-Appellee -v.- RANDY MOORE and U.S. FOREST SERVICE, Defendants-Appellees and Cross-Appellants ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA (HON. LAWRENCE J. O NEILL) STIPULATION TO DISMISS APPEALS WITHOUT PREJUDICE The parties, having reached a settlement of the present matter, hereby stipulate that the appeals be dismissed so that jurisdiction may re-vest in the district court in Fragosa v. Moore, No. 5:12-cv (C.D. Cal.), to approve the referenced settlement. This dismissal shall be without prejudice to any party s reinstating the appeals within twenty eight (28) days of the district court s order denying approval of said settlement. Pursuant to Circuit Rule , the parties further move the Court to transfer the issue of attorney fees on appeal to the district court. Respectfully submitted, s/ Matt Kenna & Rene Voss Attorneys for Plaintiff-Appellant/Cross-Appellee Date s/ Nicholas A. DiMascio Attorney for Defendants-Appellees/Cross-Appellants