Case 1:12-cv-00111-JDB Document 25-2 Filed 08/20/12 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMERICAN FOREST RESOURCE COUNCIL, et al., Plaintiffs, v. DANIEL M. ASHE and KEN SALAZAR, Defendants, and AUDUBON SOCIETY OF PORTLAND, et al., Defendant-Intervenors Civil No. 1:12-cv-00111-JDB CONSENT DECREE WHEREAS, American Forest Resource Council, Carpenters Industrial Council, and Douglas County, Oregon (collectively Plaintiffs, commenced this action on or about January 24, 2012, against Daniel M. Ashe, Director, U.S. Fish and Wildlife Service ( Service, and Ken Salazar, Secretary of the Department of the Interior (collectively Federal Defendants ; WHEREAS, Plaintiffs allege, inter alia, that in 1996, 2008 and 2011, Federal Defendants violated the Endangered Species Act ( ESA, 16 U.S.C. 1531 et seq., and the Administrative Procedure Act ( APA, 5 U.S.C. 701 et seq., by unlawfully designating critical habitat for the California, Oregon, and Washington population of the marbled murrelet ( murrelet ; WHEREAS, since Federal Defendants promulgated the 1996 rule designating critical habitat for the murrelet, the U.S. Court of Appeals for the Ninth Circuit has issued decisions in Arizona Cattle Growers v. Salazar, 606 F.3d 1160 (9th Cir. 2010, and Home Builders Ass n v. 1
Case 1:12-cv-00111-JDB Document 25-2 Filed 08/20/12 Page 2 of 7 Salazar, 613 F.3d 983 (9th Cir. 2010, that address the differences between designating areas as occupied versus unoccupied critical habitat, and the U.S. District Court for the District of Columbia issued a decision in Cape Hatteras Access Preservation Alliance v. U.S. Department of Interior, 344 F. Supp. 2d 108 (D.D.C. 2004, that addresses the requirement that areas designated as occupied critical habitat must contain the physical or biological features essential to the conservation of the species; WHEREAS, Federal Defendants believe it is appropriate for the Service to reconsider the critical habitat designation for the murrelet in light of Arizona Cattle Growers, Home Builders Ass n, Cape Hatteras Access Preservation Alliance, and other applicable law issued subsequent to the 1996 designation; WHEREAS, in a separate case the United States District Court for the District of Columbia has approved two settlement agreements the implementation of which the Service estimates will require substantially all of the resources available to the Service s listing program through fiscal year 2016. See In re Endangered Species Act Section 4 Deadline Litig., Misc. Action No. 10-377 (EGS, MDL Docket No. 2165 (D.D.C., MDL Dkt. 55 and 66 (Sept. 9, 2011; WHEREAS, Plaintiffs Complaint seeks vacatur of the critical habitat designation for the murrelet; WHEREAS, Federal Defendants have determined that vacatur of the critical habitat designation for the murrelet during the remand period will not significantly impair the conservation of the species; WHEREAS, other regulatory mechanisms provide substantial protection for the murrelet, including but not limited to: 2
Case 1:12-cv-00111-JDB Document 25-2 Filed 08/20/12 Page 3 of 7 protections afforded by the Northwest Forest Plan; protections afforded by 16 U.S.C. 1536 (ESA consultation provisions; protections afforded by 16 U.S.C. 1538 (ESA take prohibition provisions; WHEREAS, it is in the interest of the public, the parties, and judicial economy, to resolve Plaintiffs critical habitat claims in this lawsuit without protracted litigation; NOW THEREFORE, Plaintiffs and Federal Defendants agree AND IT IS HEREBY ORDERED as follows: 1. Remand and Vacatur. The critical habitat designation for the marbled murrelet, 50 C.F.R. 17.95(b, as revised on October 5, 2011, 76 Fed. Reg. 61,599, is vacated and remanded to the Service for new rulemaking ( Revised Rule. 2. Schedule for the Revised Rulemaking. The Service shall submit to the Federal Register a proposed Revised Rule by September 30, 2017, and a final Revised Rule by September 30, 2018. 3. Voluntary Dismissal. Based on the representations and commitments herein, Plaintiffs agree to dismiss with prejudice the fourth, fifth, sixth, and seventh claims in their Complaint. 4. Schedule Modifications. Either Plaintiffs or Federal Defendants may seek to modify the deadline for any action specified in Paragraph 2 for good cause shown. In that event, or in the event that Plaintiffs or Federal Defendants believe that another party has failed to comply with any term or condition of this Consent Decree, Plaintiffs and Federal Defendants shall use the dispute resolution procedures specified in Paragraph 5. 5. Dispute Resolution. The Order entering this Consent Decree may be modified by the Court upon good cause shown by written stipulation between Plaintiffs and Federal 3
Case 1:12-cv-00111-JDB Document 25-2 Filed 08/20/12 Page 4 of 7 Defendants, 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 Plaintiffs or Federal Defendants seek to modify the terms of this Consent Decree, including the deadline for the actions specified in Paragraph 2, or in the event of a dispute arising out of or relating to this Consent Decree, or in the event that Plaintiffs or Federal Defendants believe that another party has failed to comply with any term or condition of this Consent Decree, the party seeking the modification, raising the dispute, or seeking enforcement shall provide the other parties with written notice of the proposed modification. Plaintiffs and Federal Defendants agree that they will meet and confer (in-person not required at the earliest possible time after receipt of the written notice in a goodfaith effort to resolve the claim before bringing any matter to the Court. 6. No Precedent. No party shall use this Consent Decree or the terms herein as evidence of what does or does not constitute a reasonable timeline for reconsidering a critical habitat designation under 16 U.S.C. 1533 in any other proceeding regarding the Service s implementation of the ESA. 7. Anti-Deficiency Act. Nothing in this Consent Decree shall be interpreted as or constitute a commitment or requirement that the Service obligate or pay funds in contravention of the Anti-Deficiency Act, 31 U.S.C. 1341, or any other appropriations law. 8. Statutory Obligations. No provision of this Consent Decree shall be interpreted as or constitute a commitment or requirement that Federal Defendants take action in contravention of the ESA, the APA, or any other law or regulation, either substantive or procedural. Nothing in this Consent Decree shall be construed to limit or modify the discretion accorded to the Secretary 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 4
Case 1:12-cv-00111-JDB Document 25-2 Filed 08/20/12 Page 5 of 7 any final determination. To challenge any determination issued in accordance with this Consent Decree, Plaintiffs will be required to file a separate action. 9. No Waiver of Rights. Plaintiffs do not waive any right they may have to bring suit against Federal Defendants for any violations of law which have arisen or may arise stemming from any future designation of critical habitat for the murrelet. Further, by entering into this Consent Decree, Federal Defendants do not waive any claim or defense. 10. Attorneys Fees. Plaintiffs intend to seek from Federal Defendants reimbursement of attorneys fees and costs incurred in this litigation. Federal Defendants agree that Plaintiffs are entitled to an award of costs of litigation on their fourth, fifth, sixth, and seventh claims in their Complaint pursuant to ESA Section 11, which provides: The court, in issuing any final order in any suit brought pursuant to paragraph (1 of this subsection, may award costs of litigation (including reasonable attorney and expert witness fees to any party, whenever the court determines such award is appropriate. 16 U.S.C. 1540(g(4. Plaintiffs and Federal Defendants agree to attempt to resolve Plaintiffs claim for fees and costs expeditiously and without the need for Court intervention. By this Consent Decree, Federal Defendants do not waive any right to contest fees claimed by Plaintiffs, including the hourly rate, in any continuation of the present action or any future litigation. 14. Entire Agreement. The terms of this Consent Decree constitute the entire agreement of Plaintiffs and Federal Defendants, and no statement, agreement or understanding, oral or written, which is not contained herein shall be recognized or enforced. 15. Authorization. Each undersigned representative of Plaintiffs and Federal Defendants hereto certifies that he or she is fully authorized to enter into and execute the terms 5
Case 1:12-cv-00111-JDB Document 25-2 Filed 08/20/12 Page 6 of 7 and conditions of this Consent Decree, and to legally bind such party or parties to this Consent Decree. 16. Continuing Jurisdiction. Notwithstanding the dismissal of this action, Plaintiffs and Federal Defendants hereby stipulate and respectfully request that the Court retain jurisdiction to oversee compliance with the terms of this Consent Decree and to resolve any motions to modify such terms or to resolve any dispute between Plaintiffs and Federal Defendants regarding Plaintiffs claim for an award of fees and costs. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994. The remedy for any challenge to a Revised Rule that is completed in accordance with the Consent Decree shall be the filing of a new lawsuit after providing such notice of intent to sue as may be required by 16 U.S.C. 1540(g. Dated: August 20, 2012 Respectfully Submitted, IGNACIA S. MORENO, Assistant Attorney General SETH M. BARSKY, Section Chief KRISTEN L. GUSTAFSON, Assistant Section Chief /s/ Meredith L. Flax Meredith L. Flax (DCB 468016 Sr. Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section Ben Franklin Station P.O. Box 7611 Washington, D.C. 20044-7611 Phone: (202 305-0404 Fax: (202 305-0275 Email: meredith.flax@usdoj.gov Attorneys for Federal Defendants /s/ Mark C. Rutzick (by permission to MLF Mark C. Rutzick Mark C. Rutzick, Inc. 12402 Myra Virginia Court Oak Hill, VA 20171 6
Case 1:12-cv-00111-JDB Document 25-2 Filed 08/20/12 Page 7 of 7 Phone: (703 870-7347 Fax: (503 244-3030 Email: markrutzick@rutzick.com Attorney for Plaintiffs 7