Conservation Congress v. United States Forest Service ( 2019 )

STEVEN SUGARMAN, NM 5717 (pro hac vice) 1 347 County Road 55A 2 Cerrillos, NM 87010 (505) 672-5082 3 stevensugarman@hotmail.com 4 JAMES J. TUCHTON, Cal. 150908 5 6439 E. Maplewood Ave. Centennial, CO 80111 6 (720) 301-3843 jtutchtonlo@gmail.com 7 8 Attorneys for Plaintiff 9 (Additional counsel listed on next page) 10 UNITED STATES DISTRICT COURT 11 FOR THE EASTERN DISTRICT OF CALIFORNIA 12 SACRAMENTO DIVISION 13 ) 14 CONSERVATION CONGRESS, ) No. 2:13-CV-01977-JAM-DB 15 ) Plaintiff, ) SECOND 16 ) JOINT STIPULATION AND ORDER v. ) TO STAY PLAINTIFF’S MOTION 17 ) FOR ATTORNEY FEES AND 18 UNITED STATES FOREST SERVICE and ) COSTS UNITED STATES FISH AND WILDLIFE ) 19 SERVICE, ) 20 ) Hon. John A. Mendez Federal Defendants, ) 21 ) and ) 22 ) 23 TRINITY RIVER LUMBER CO., ) ) 24 Defendant-Intervenor. ) ) 25 26 27 28 LAWRENCE VANDYKE 1 Deputy Assistant Attorney General 2 United States Department of Justice Environment & Natural Resources Division 3 HAYLEY A. CARPENTER, CA Bar No. 312611 4 Natural Resources Section 5 PO Box 7611 Washington, DC 20044-7611 6 (202) 305-0242 hayley.carpenter @usdoj.gov 7 8 SETH M. BARSKY, Chief 9 S. JAY GOVINDAN, Assistant Chief 10 ANDREA GELATT, Cal. 262617 Wildlife & Marine Resources Section 11 PO Box 7611 Washington, DC 20044-7611 12 (202) 305-0210 13 andrea.gelatt@usdoj.gov 14 Attorneys for Federal Defendants 15 16 The parties now jointly stipulate to an additional stay on the briefing of Plaintiff’s motion 17 for attorney fees and costs, which Plaintiff initially filed on June 16, 2017 and which Plaintiff 18 renewed on August 6, 2019. ECF Doc. Nos. 151, 192. The Plaintiffs and Federal Defendants 19 propose this stay solely to facilitate potential settlement and in seeking this stay do not concede 20 or compromise any claim or defense in support or against the award of attorney’s fees in this 21 case. In support of this stipulation, Plaintiff and Federal Defendants state as follows: 22 23 1. Plaintiff intends to seek an award of attorney’s fees and costs under the Equal 24 Access to Justice Act (“EAJA”) and under the Endangered Species Act (“ESA”) citizen suit 25 provision. 26 2. This Court entered judgment in this matter on May 30, 2017. ECF No. 142. 27 3. Plaintiff noticed its appeal to the Ninth Circuit on May 31, 2017. ECF No. 143. 28 4. Under Local Rule 293, “[m]otions for awards of attorneys’ fees to prevailing 1 2 parties pursuant to statute shall be filed not later than twenty-eight (28) days after entry of final 3 judgment.” 4 5. EAJA requires a party to file an application for fees and other expenses within 30 5 days of an unappealable final judgment. 28 U.S.C. § 2412(d)(1)(B). A “final judgment” under 6 EAJA is “a judgment that is final and not appealable.” Id. § 2412(d)(2)(G). 7 8 6. Under the ESA citizen suit provision, “[u]nless a statute or a court order provides 9 otherwise,” an application for attorney’s fees and expenses must “be filed no later than 14 days 10 after the entry of judgment.” See Fed. R. Civ. P. 54(d)(2)(B)(i). 11 7. The Ninth Circuit resolved Plaintiff’s appeal adversely to Plaintiff, and issued its 12 13 mandate in this case on August 1, 2019. 14 8. Although the Court’s May 30, 2017, Judgment was not final for purposes of 15 EAJA or the ESA citizen suit provisions, Plaintiff filed its motion for attorney fees in an 16 abundance of caution to comply with the technical requirements of Local Rule 293. ECF Docs 17 Nos. 151, 192. At the request of Federal Defendants, Plaintiff filed a Renewed Motion for 18 19 Attorney Fees and Costs on August 6, 2019. ECF Doc. No. 192. Plaintiff has not yet filed a 20 Memorandum Brief in Support of its Motion for Attorney Fees and Costs in this matter. 21 9. The parties represent to the Court that they desire to resolve the matter of the 22 amount of attorney fees and costs to be paid – if any – in the most expeditious and efficient 23 manner possible. Specifically, the parties believe that the matter of attorney fees and costs is 24 25 susceptible to resolution by a good faith negotiation and settlement. The parties desire to 26 proceed towards a final resolution of this case in that manner, and without further judicial 27 intervention or litigation on the matter of fees and costs. 28 10. The parties represent to the Court that a stay of proceedings on Plaintiff’s Motion 1 2 for Attorney Fees and Costs is necessary to facilitate a negotiated resolution of the fee and cost 3 issue, and further represent to the Court that the negotiation will be somewhat complicated 4 because of the unusual length and procedural history of this litigation, the fact that Plaintiff was 5 represented by multiple counsel over the case’s pendency, and the fact that Plaintiff prevailed on 6 only a subset of its claims. 7 8 11. It is within the Court’s power to stay briefing on Plaintiff’s motion to conserve the 9 resources of the Court and the parties. See Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) 10 (“[T]he power to stay proceedings is incidental to the power inherent in every court to control the 11 disposition of the causes on its docket with economy of time and effort for itself, for counsel, and 12 13 for litigants.”). 14 For these reasons, and for good cause shown, the parties stipulate as follows and request 15 that the Court approve this stipulation: 16 1. Briefing on Plaintiff’s motion for attorney’s fees and costs is stayed until October 31, 17 2019. 18 19 20 21 22 23 24 25 26 27 28 1 2 2. If the parties have not resolved the issue of fees and costs by October 31, 2019, they 3 shall jointly inform the Court and shall propose to the Court a schedule for briefing 4 Plaintiff’s Motion for Attorney Fees and Costs pursuant to Local Rule 293. 5 Respectfully submitted this 6th day of August, 2019. 6 7 8 /s/ Steven Sugarman LAWRENCE VANDYKE STEVEN SUGARMAN, NM 5717 Deputy Assistant Attorney General 9 (pro hac vice) United States Department of Justice 10 347 County Road 55A Environment & Natural Resources Division Cerrillos, NM 87010 /s/Hayley A. Carpenter (with permission on 11 (505) 672-5082 August 5, 2019) stevensugarman@hotmail.com 12 HAYLEY A. CARPENTER, CA Bar No. 312611 13 JAMES J. TUCHTON, Cal. 150908 Trial Attorney 6439 E. Maplewood Ave. Natural Resources Section 14 Centennial, CO 80111 PO Box 7611 (720) 301-3843 15 Washington, DC 20044-7611 jtutchtonlo@gmail.com (202) 305-0242 16 hayley.carpenter@usdoj.gov Attorneys for Plaintiff 17 SETH M. BARSKY, Chief 18 S. JAY GOVINDAN, Assistant Chief ANDREA GELATT, Cal. 262617 19 Trial Attorney Wildlife & Marine Resources Section 20 PO Box 7611 21 Washington, DC 20044-7611 (202) 305-0210 22 andrea.gelatt@usdoj.gov 23 24 Attorneys for Federal Defendants 25 26 27 28 1 2 ORDER 3 4 The Court having considered the stipulation of the parties, IT IS SO ORDERED. 5 6 Dated: August 7, 2019 /s/ John A. Mendez____________ 7 Hon. John A. Mendez 8 United States District Court Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28