Legislation to stop litigation abuse by among others… litigious environmental groups like Tucson’s own Center for Biological Diversity…. is poised to be introduced in Congress by Senator John Barrasso (R-Wyoming) and Wyoming Representative Cynthia Lummis… called the Government Savings Litigation Act.

BACKGROUND for why this legislation is being proposed:

 This from the New York Times April 20, 2011:

Amid flood of petitions, endangered species listings stall

By Todd Woody
New York Times

…“These megapetitions are putting us in a difficult spot, and they’re basically going to shut down our ability to list any candidates for the foreseeable future,” Mr. Frazer said. “If all our resources are used responding to petitions, we don’t have resources to put species on the endangered species list. It’s not a happy situation.”

Two environmental groups, the Center for Biological Diversity and WildEarth Guardians , have filed 90 percent of the listings petitions since 2007 and maintain that a bioblitz, as it is often called, is the best strategy for forcing the service to be more assertive in its wildlife protection mission.

“We want to compel the Fish and Wildlife Service to look at the full extent of the extinction crisis in the United States,” said Nicole Rosmarino, wildlife program director for WildEarth Guardians, which is based in Santa Fe, N.M. “We would like a system where the service is actively looking for species that merit protection rather than the current system where groups like ours have to drive this process.”

….

WildEarth Guardians and the Center for Biological Diversity have filed more than 100 lawsuits against the Interior Department over listing delays involving some 1,100 species since 2007, according to government records. Under the act, the Interior Department must determine if a petition to list a species warrants further investigation within 90 days of its receipt. Officials acknowledge that the Fish and Wildlife Service invariably misses that deadline.

If the agency issues a finding that a listing may be warranted, it has 12 months to conduct a scientific investigation and make a final determination. That deadline is often missed as well, leading to more litigation.

The Center for Biological Diversity is a particularly formidable adversary. The nonprofit group, based in Tucson, has 20 lawyers on its staff in more than a dozen offices across the country. The center raised $7.5 million in 2009, according to its annual report, including $4.8 million from membership donations and $1.2 million in what it calls “legal returns” from cases….

More….

Under the Equal Access to Justice Act (EAJA), a group can get attorney fees from the government if its successfully sues the government to do what they are supposed to be doing.

Under the Endangered Species Act (ESA) the feds have a short period of time to respond to a petition to list a plant or animal as endangered. If the feds don’t act within that time frame, the petitioner can sue the feds and basically there is no defense to the suit. The feds have to roll over and pay attorney fees to the group that filed the listing petition.

Thus, if a federal agency such as the US Fish and Wildlife Service has a limited budget to begin with, and an environmental group such as the Center for Biological Diversity or WildEarth Guardians petitions to have hundreds of plants and animals listed as being endangered, US Fish and Wildlife will default because they can’t process all the petitions within the deadline.

Then the group such as Center for Biological Diversity sues US Fish and Wildlife to force them to list the petitioned species, and seeks attorney fees. More often than not US Fish and Wildife gives the petitioner its attorney fees. This is all documented in “settlement agreements”

See for example WildEarth Guardians v Salazar settlement agreement. See below.

What we don’t know for sure…because the media has failed to investigate what is called “EAJA Abuse”… is how much money is Center for Biological Diversity and WildEarth Guardians are getting from US taxpayers in legal fees from filing these hundreds of petitions to list all these critters and plants.

BUT HERE IS AN EXAMPLE OF HOW IT WORKS from the May 10, 2011 settlement agreement between the US and WildEarth Guardians:

12. Upon approval of this Agreement by the Court, the Parties will file joint motions to dismiss the following five cases with prejudice: WildEarth Guardians v. Salazar, Civ. No. 4:10-420 (D. Ariz.); WildEarth Guardians v. Guertin, et al., Civ. No. 1:10-1959 (D. Colo.); WildEarth Guardians v. Salazar, Civ. No. 1:10-2129 (D. Colo.); Biodiversity Conservation Alliance, et al. v. Kempthorne, et al., Civ. No. 04-2026 (D. D.C.); and Western Watersheds Project, et al. v. Salazar, Civ. No. 4:10-229 (D. Idaho). Before filing the joint motions to dismiss, the Plaintiff will inform any parties who are co-plaintiffs in those cases, and use good-faith efforts to secure the agreement of those parties to join in the motions to dismiss. The agreement of any such co-plaintiffs shall not be required before the Parties herein file motions to dismiss. The Defendants reserve the right to assert all available legal defenses in any of the cases identified in this paragraph. With respect to each of these cases, if the respective court dismisses the case in its entirety with prejudice, Defendants agree that the Plaintiff is the prevailing party with regard to its claims in that case, and is thus entitled to an award of reasonable attorney’s fees and costs. If a co-plaintiff in such cases agrees to a joint motion to dismiss the case in its entirety with prejudice, then Defendants agree that such co-plaintiff would also be entitled to an award of reasonable attorney’s fees and costs with regard to their claims in that case. In each such case, the Parties will attempt to reach agreement as to the appropriate amount of any fee recovery. If they are unable to do so, within 60 days of an order dismissing the action in its entirety, the Plaintiff will file an application for the recovery of fees and costs with the respective courts. As stated in Paragraph 15, the Defendants may terminate the Agreement if any one or more of the cases identified in this paragraph is not dismissed in its entirety with prejudice.

24. The Defendants agree that the Plaintiff is the prevailing party with regard to its claims in this consolidated litigation related to the allegedly untimely issuance of 90-day and 12-month petition findings, and thus are entitled to an award of reasonable attorneys’ fees and costs pursuant to section 11(g)(4) of the ESA, in these consolidated cases. 16 U.S.C. § 1540(g)(4). The Parties will attempt to reach agreement as to the appropriate amount of the fee recovery. If they are unable to do so, the Plaintiff will file an application with the Court for the recovery of fees and costs within 60 days of the approval of this Agreement by the Court.

Full text of the settlement is at the end of this post.

Here is some interesting reading:

From a letter circulating among America’s hunting, fishing, conservation and ranching groups in support of the Litigation Savings:

Since 1995, there has been no reporting of the monies paid out by the federal government under either the Equal Access to Justice Act or the Judgment Fund. From preliminary research, there appears to be over $42 million having been paid out in the 19 most active federal district and circuit courts over the last 9 years, which represents a fraction of the total money paid to plaintiff litigants who have sued our multiple land management agencies (USFS, USFWS, BLM, NPS, etc.) over issues related to ESA, NEPA, NFMA, FLPMA, CWRA, MMPA, and many other environmental statues enacted in the 1970’s.

Twelve non-profit groups alone have filed over 3,300 law suits over the last decade. This constant barrage of litigation has drained our land management agencies of operating funds, and diverted the attention of agency personnel from their primary management mission to defending countless law suits.

The Government Litigation Savings Act will remove the eligibility exception 501(c)(3) organizations have enjoyed since 1980 when EAJA was initially passed, and put “equal” back into “access” as Congress originally intended.

Henceforth non-profit organizations will be subject to the same rights, limitations, constraints and transparency that govern the utilization of EAJA by small business owners, veterans, social security recipients, taxpayers and all private citizens oppressed by overzealous regulatory enforcement, which was the Congressional intent underlying the enactment of EAJA in 1980.

Environmental and animal rights’ activists have exploited a loophole in EAJA, and through round-robin litigation supported their organizations and built large internal legal departments to sustain and perpetuate continuing litigation.

The Government Litigation Savings Act will limit the use of EAJA to only those who can prove they have a direct and personal monetary or property interest, suffered personal injury, or are likely to suffer irreparable harm.

Reimbursement of legal fees under EAJA will be curtailed if the claimant has unreasonably protracted the proceedings, been oppressive or acted in bad faith, or has utilized attorneys pro bono.

Moreover, all attorneys’ fees will be capped at $175 per hour, and limited to $200,000 for any single lawsuit, and no more than three EAJA awards in any calendar year can be awarded to the same claimant.

All payments under EAJA shall be reported annually, and a searchable database created indentifying the amount and to whom the funds were paid (including sealed settlement agreements), the agency sued, hourly rates of expert witnesses and related costs, the names of presiding judges in each case, and their basis for finding the position of the agency concerned was not substantially justified.

Lastly, a GAO report of EAJA payments since 1995 will be required under this reform legislation.

Passage of the Government Litigation Savings Act will restore order to our land management agencies’ missions, and permit them to manage and conserve our wildlife, natural, scenic and cultural resources.

I encourage Arizona Senators Kyl and McCain and Arizona’s Republican House of Representatives members to support the Government Litigation Savings Act.

It is time to shut down the litigation machines of groups like WildEarth Guardians and Center for Biological Diversity which are costing taxpayers millions.

Here is a summary of the Government Litigation Savings Act:

Government Litigation Savings Act
To reform the Equal Access to Justice Act
Section-by-Section

Section 1: Short Title

• The bill title is changed to the Government Litigation Savings Act.

Section 2: Modification of Equal Access to Justice Act Provisions

Subsection (a) deals with agency proceedings located in Title 5, Section 504 of U.S. Code.

• Requires that EAJA filers must show a “direct and personal monetary interest” in the action to be eligible for payments. Direct and personal interest includes personal injury, property damage, or unpaid agency disbursement.

• Removes the net worth eligibility exemptions granted to 501(c)(3) organizations and Agriculture Cooperatives for access to EAJA funds. With this provision, any organization regardless of tax status filing for EAJA reimbursements must have a net worth of less than $7 million, and individuals must have a net worth of less than $2 million.

• Establishes a cap of $175 per hour for attorney’s fees, pegged to inflation. All additional multipliers are removed.

• Requires an agency to disallow EAJA reimbursements if the claimant “unreasonably protracted the proceedings, or acted in an obdurate, dilatory, mendacious, or oppressive manner, or in bad faith.”

• Requires agencies to reduce reimbursements based on pro bono work.

• Caps total EAJA reimbursements to $200,000 for any single action, and allows no more than 3 EAJA awards in a calendar year.

• Establishes reporting requirements government-wide, and consolidates reporting into the Administrative Conference of the United States (ACUS). The report must include an explanation from the agency explaining why its position was not substantially justified.

• Establishes an online, searchable database for funds paid out of EAJA and to whom the funds were paid. The database is administered by ACUS.

• Requires that funds paid from EAJA in sealed settlement agreements must be included in the online report.

Subsection (b) deals with judicial proceedings located in Title 28, Section 2412(d) of U.S. Code.

• This section does the same things as subsection (a) in terms of eligibility, hourly rates, EAJA reimbursement caps, and tracking and reporting.

• Requires judges to disallow EAJA payments if the claimant “unreasonably protracted the final resolution of the matter in controversy, or acted in an obdurate, dilatory, mendacious, or oppressive manner, or in bad faith.”

• Requires that as part of the annual report of payments under EAJA, the Attorney General must also make available to ACUS information about payments made from the Judgment Fund. Specifically, the total judgment, the amount of fees and other expenses, and the statute under which the plaintiff filed suit. The final report shall be issued by ACUS.

Section 3: GAO Study

• Requires the GAO to conduct an audit of EAJA payments over the last 15 years.

_____________________________________

And here is a prime example of how all this works:

http://www.courthousenews.com/2011/05/11/36507.htm

Breakthrough in Logjam to List Candidate Species

By SONYA ANGELICA DIEHN

WASHINGTON (CN) – An environmental group and federal agency have struck a deal with hopes of ending a backlog on the listing of hundreds of threatened and endangered species. WildEarth Guardians and the Department of Interior agreed to preserve 251 species on the list of candidates for protection by 2016, in exchange for no new lawsuits until 2017.

“The candidate list has been the black hole of the Endangered Species Act,” WildEarth Guardians attorney Jay Tutchton said in a statement about the settlement. The group says 150 species have been queued up on the list for the better part of 20 years, while 57 species have been waiting more than 30 years.

The Center for Biological Diversity, an advocate for endangered species, says at least 24 species have gone extinct nationwide while waiting on the list of species that are candidates or warranted for review. The group says 17 more species went extinct while their listing petitions were actually under review.

The agreement between WildEarth and the government settles a dozen lawsuits over species listing. Many of the 251 species sitting on the list are plants and invertebrates, such as the whorled sunflower and Indian Grave Point cave beetle.

The Department of the Interior characterized the settlement as a “work plan” that will allow it to prioritize its efforts and bring clarity to species listing determinations.

The plan “will serve as a catalyst to move past the gridlock and acrimony of the past several years,” Fish and Wildlife Service acting director Rowan Gould said in a statement.

The department claims time spent in court has been consuming most of the resources earmarked for its endangered-species-listing program.

The Center for Biological Diversity, a powerhouse species litigator, says the record does not support this.

“Species have been listed because of, not in spite of court orders,” Noah Greenwald, endangered species director for the center, told the Courthouse News Service.

Greenwald said the center supports endangered-species listing, but thinks the agreement could’ve gone further. For example, it didn’t include species added to the candidate list after November last year, which include the Pacific walrus and North American wolverine.

The agreement establishes a timetable for publishing proposed listing rules or not warranted decisions for the 251 species by the end of September 2016. It also specifies deadlines for certain findings on other species, such as the end of 2012 for a listing decision on the Mexican wolf, which is endangered but classified as “nonessential experimental.”

For its part, WildEarth will dismiss pending listing lawsuits and not file any new suits over the 251 species until March 2017. It also agreed to file a maximum of 10 listing petitions per year until the 2016 deadline.

WildEarth apparently filed 700 of all 1,230 species listing petitions in the last four years.
The federal agency agreed to grant the group legal costs.

Greenwald said questions, including on enforceability of the agreement, give the center – which has worked on the majority of the species and was party to some of the lawsuits – grounds to consider opposing it.

Although the agreement doesn’t prevent groups besides WildEarth Guardians from suing over species, courts could point to it to delay responding to species petitions, Greenwald noted.

Other groups struck a settlement of similar scope in the 1990s, which resulted in threatened and endangered listing of many species during that decade.

http://www.fws.gov/endangered/improving_ESA/exh_1_re_joint_motion_FILED.PDF

And here is the smoking gun of how all this works… a stipulated setetlement agreement between Earth Guardians and the US government filed in federal court May 10, 2011:

WildEarth Guardians v. Salazar

WHEREAS, on, December 23 and 26, 2009; January 8, 12, 26, and 28, 2010; February 8,
11, and 12, 2010; and March 15, 2010, Guardians filed ten complaints for declaratory and
injunctive relief alleging that the Secretary failed to comply with a statutory duty to make 12- month findings on petitions to list 12 species as threatened or endangered under the ESA, Nos. 1:09-2290 and 1:09-2997 (D. Colo.); Nos. 1:10-0048 (D. D.C.), 1:10-57 (D. Colo.), 1:10-169 (D.Colo.), and 3:10-53 (D. Nev.); Nos. 1:10-256 (D. Colo.), 6:10-122 (D. N.M.), and 1:10-263 (D. Colo.); and No. 1:10-421 (D. D.C.), respectively;

WHEREAS, on June 8, 2010, the Judicial Panel on Multidistrict Litigation (“Panel”)
transferred all of the above-listed cases to the U.S. District Court for the District of Columbia, MDL No. 2165;

WHEREAS, on June 29, 2010, this Court consolidated all of these actions;

WHEREAS, on September 20, 2010, and October 25 and 27, 2010, Guardians filed three
additional complaints for declaratory and injunctive relief alleging that the Secretary failed to comply with a statutory duty to make either a 90-day finding or a 12-month finding on petitions to list nine Texas mollusks, the Utah population of the gila monster (“gila monster”), and the Mexican wolf, Nos. 4:10-cv-03366 (S.D. Tex.), 10-cv-02595 (D. Colo.), and 2:10-cv-02299 (D. Ariz.), respectively;

WHEREAS, on December 6, 2010, and January 3, 2011, this Court consolidated the nine
Texas mollusks, gila monster, and Mexican wolf cases with this action as tag-along cases;

WHEREAS, the Defendants are required to complete a significant number of petition
findings, proposed and final listing rules, and critical habitat determinations pursuant to
settlement agreements and court orders that are already in existence at the signing of this
Agreement (listed in the attached Exhibit A) and the respective courts that issued those orders or approved those settlement agreements have retained jurisdiction to enforce or modify those agreements and orders;

WHEREAS, the Parties agree that this Agreement will resolve all of the claims currently
at issue in the consolidated cases, is a just resolution of a large amount of existing litigation, will prevent the filing of an even greater amount of anticipated litigation, is in the public interest, and is an appropriate way to resolve the disputes between them;

WHEREAS, the Plaintiff and Defendants, through their authorized representatives, and
without any admission or final adjudication of the issues of fact or law with respect to Plaintiff’s claims, have reached a settlement that they consider to be a just, fair, adequate, and equitable resolution of the claims raised in these consolidated cases.

NOW, THEREFORE, IT IS STIPULATED BY AND BETWEEN THE PARTIES AS
FOLLOWS:

1. The Defendants shall submit to the Federal Register all actions identified in the Service’s work-plan for fiscal years (“FYs”) 2011 and 2012 (attached as Exhibit B) no later than the fiscal years specified in the work-plan. Among the actions that the Defendants shall complete in accordance with this paragraph, the Defendants shall submit a Proposed Rule or a not-warranted finding to the Federal Register for the Mexican wolf no later than the end of FY 2012.

2. The Defendants shall, for all 251 species that were designated as “candidates” in the 2010 CNOR, submit to the Federal Register for publication either a Proposed Rule or a not warranted finding no later than September 30, 2016. Among the actions that the Defendants shall complete in accordance with this paragraph, the Defendants shall submit a Proposed Rule or a not-warranted finding to the Federal Register for the following species no later than the end of the specified fiscal year: New Mexico meadow jumping mouse by FY 2013; Pacific fisher by FY 2014; and greater sage-grouse, including any Distinct Population Segments, by FY 2015.

3. The Defendants shall submit a Proposed Rule or a not-warranted finding to the Federal
Register for the Sonoran desert tortoise no later than the end of FY 2015.

4. The Defendants shall submit to the Federal Register a proposed rule to amend the Distinct Population Segment boundaries for the Canada lynx to include New Mexico no later than the end of FY 2013.

5. The Defendants shall submit a 12-month finding to the Federal Register for the rattlesnakemaster borer moth no later than the end of FY 2013.

6. It shall constitute adequate progress towards meeting the requirements set forth in paragraph 2 if the combined number of species for which the Defendants submit Proposed Rules or notwarranted findings to the Federal Register in accordance with paragraph 2 totals no fewer than 130 out of 251 by September 30, 2013; no fewer than 160 out of 251 by September 30, 2014; and no fewer than 200 out of 251 by September 30, 2015. If the combined number of species for which the Defendants submit Proposed Rules or not-warranted findings to the Federal Register in accordance with paragraph 2 by one of the above dates falls below the cumulative totals specified, the Plaintiff may raise the discrepancy in accordance with the dispute-resolution process set forth in paragraph 16. If the Parties are not able to reach agreement on whether the Agreement needs to be modified, and if so, what the modification should be, the Plaintiff may obtain relief from the Court in accordance with paragraphs 15 and 16 only if the Court determines it is no longer reasonably likely that the Defendants will be able to comply with paragraph 2.

7. For each Proposed Rule submitted to the Federal Register in accordance with paragraphs 1 through 4, the Defendants shall make a final listing determination in accordance with the statutory deadlines provided in 16 U.S.C. § 1533(b)(6)(A)-(B). The Defendants shall make a final determination on the proposed critical habitat designation for the jaguar in accordance with the statutory deadlines provided in 16 U.S.C. § 1533(b)(6)(C).

8. For species that are the subject of final listing rules promulgated in accordance with
paragraph 7, the Defendants intend to designate critical habitat concurrently with the final listing rule to the maximum extent prudent and determinable, in accordance with 16 U.S.C. § 1533(a)(3) and § 1533(b)(6)(C). If there are instances where the Defendants do not designate critical habitat concurrently with the final listing rule, excluding proposed or final critical habitat determinations listed in Exhibits A or B, such non-concurrent designation will not constitute a violation of this Agreement, and Plaintiff agrees that it will not bring litigation to compel designation during the term of this Agreement, pursuant to paragraph 9.

9. Prior to March 31, 2017, Guardians shall not file any lawsuit to enforce the statutory
deadlines in 16 U.S.C. § 1533(a) and (b) or to challenge any warranted-but-precluded finding in accordance with 16 U.S.C. § 1533(b)(3)(B)(iii) for any species within the jurisdiction of the Department of the Interior. Prior to March 31, 2017, the Plaintiff shall not actively solicit other parties to file any such litigation, 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 Guardians from providing  biological information concerning the imperilment of species to other organizations or individuals, if requested. Nothing in this paragraph bars the Plaintiff from filing a lawsuit to enforce the duties of 16 U.S.C. § 1533(b)(3)(C)(iii). Additionally, the prohibition against litigation before March 31, 2017, to enforce the statutory deadlines in 16 U.S.C. § 1533(b) shall not apply to litigation filed in the U.S. District Court for the District of Columbia seeking to compel a 12-month finding for any species identified in the Plaintiff’s (1) June 18, 2007, Petition to FWS Region 2, positive 90-day findings made in December 2009; (2) July 24, 2007, Petition to FWS Region 6, positive 90-day findings made in August 2009; (3) October 9, 2008, Petition to FWS for 5 Texas Mussels, positive 90-day findings made in December 2009; (4) October 9, 2008, Petition to FWS for Chihuahua Scurfpea, positive 90-day finding made in December 2009, so long as such litigation is filed no sooner than 5 years and 11 months after the cause of action accrues. If the Plaintiff files any such litigation to compel a 12-month finding, the Parties shall jointly move to stay the litigation; if the Court denies the motion, the Plaintiff agrees not to seek any relief in such litigation that would require the Defendants to expend resources before the end of this Agreement. Between September 30, 2016, and March 31, 2017, the Parties will meet to discuss the resolution of any potential future Section 4 deadline litigation. The Plaintiff will contact the Defendants to initiate these discussions. The Parties may seek the involvement of a mediator in such meeting or meetings, if appropriate.

10. The Parties agree that the timetables for resolving the status of candidate species outlined in this Agreement constitute expeditious progress in adding qualified species to the lists of threatened and endangered species. The Parties further agree that this Agreement, if executed and implemented as set forth herein, provides for the Service’s orderly administration of its Listing Program, including the reduction of the number of candidate species. The Defendants have concluded that fulfilling the commitments set forth in this Agreement, along with other commitments required by court orders or court-approved settlement agreements already in existence at the signing of this Settlement Agreement (listed in Exhibit A), will require substantially all of the resources in the Listing Program. For the purposes of entering into and facilitating compliance with this Agreement, Guardians accepts this conclusion.

11. With respect to the submission and processing of petitions pursuant to 16 U.S.C. §
1533(b)(3), the Parties agree that the purposes of the Act would be furthered if at the end of this Agreement the Defendants are able to maintain a Listing Program with a balanced output of petition findings, proposed and final listing determinations, and proposed and final critical habitat designations. Therefore, the Plaintiff will not submit new petitions to list more than 10 species in any fiscal year (October 1 through September 30) from the date this Agreement becomes effective until September 30, 2016. If at any time a party that is not a signatory to this Agreement files a complaint alleging that the Defendants have not complied with their statutory duty to complete a 90-day and/or 12-month finding on one of the Guardians’ petitions within the statutory deadline, Guardians hereby states that any such litigation and any potential relief requiring a finding on the petition outside of the parameters of this Agreement are contrary to the spirit and purpose of the Agreement and destructive to the accomplishment of Guardians’ goals in entering this Agreement, which, if executed and implemented as set forth herein, provides for the Service’s orderly administration of its Listing Program. Defendants may request Guardians to provide, and/or Guardians may in its discretion provide, an amicus brief or declaration or some other means to inform the Court of the same.

12. Upon approval of this Agreement by the Court, the Parties will file joint motions to dismiss the following five cases with prejudice: WildEarth Guardians v. Salazar, Civ. No. 4:10-420 (D. Ariz.); WildEarth Guardians v. Guertin, et al., Civ. No. 1:10-1959 (D. Colo.); WildEarth Guardians v. Salazar, Civ. No. 1:10-2129 (D. Colo.); Biodiversity Conservation Alliance, et al. v. Kempthorne, et al., Civ. No. 04-2026 (D. D.C.); and Western Watersheds Project, et al. v. Salazar, Civ. No. 4:10-229 (D. Idaho). Before filing the joint motions to dismiss, the Plaintiff will inform any parties who are co-plaintiffs in those cases, and use good-faith efforts to secure the agreement of those parties to join in the motions to dismiss. The agreement of any such co-plaintiffs shall not be required before the Parties herein file motions to dismiss. The Defendants reserve the right to assert all available legal defenses in any of the cases identified in this paragraph. With respect to each of these cases, if the respective court dismisses the case in its entirety with prejudice, Defendants agree that the Plaintiff is the prevailing party with regard to its claims in that case, and is thus entitled to an award of reasonable attorney’s fees and costs. If a co-plaintiff in such cases agrees to a joint motion to dismiss the case in its entirety with prejudice, then Defendants agree that such co-plaintiff would also be entitled to an award of reasonable attorney’s fees and costs with regard to their claims in that case. In each such case, the Parties will attempt to reach agreement as to the appropriate amount of any fee recovery. If they are unable to do so, within 60 days of an order dismissing the action in its entirety, the Plaintiff will file an application for the recovery of fees and costs with the respective courts. As stated in Paragraph 15, the Defendants may terminate the Agreement if any one or more of the cases identified in this paragraph is not dismissed in its entirety with prejudice.

13. The Parties agree to use their best efforts to ensure that any court order resulting from a case filed by a non-signatory to this Agreement to enforce the statutory deadlines in 16 U.S.C. § 1533(a)-(b) or to challenge the merits of a listing or critical habitat petition finding or rulemaking does not interfere with Defendants’ ability to satisfy their obligations under this Agreement. Defendants reserve the right to seek consolidation of any such case with this case by filing a Notice of Related Action with this Court or the Panel. In any litigation filed by a party that is not a signatory to this Agreement to enforce the statutory deadlines in 16 U.S.C. § 1533(a)-(b), or in the remedy phase of any successful merits challenge to a listing or critical habitat petition finding or rulemaking, the Parties state that, in considering any appropriate relief, the court with jurisdiction over that case should ensure that the relief granted will not interfere with the Defendants’ ability to comply with the requirements of this Agreement, giving due weight to Defendants’ assessment of their available resources.

14. The Parties acknowledge that they have entered into this Agreement based on Defendants’ conclusion that they will have the ability to fulfill the requirements of the Agreement. The Defendants reached this conclusion based on certain assumptions they have made regarding the time during which the Agreement is in effect, specifically (i) that the amount of funding available to the listing program in each fiscal year the Agreement is in effect will not be substantially less than the FY 2011 request level; (ii) that the number of species petitioned each fiscal year from all petitioners will not be substantially more than historical levels prior to 2007; (iii) that the level of deadline litigation in the Listing Program will be significantly reduced from levels occurring in 2008-2010 during the period of this Agreement; (iv) that the Defendants will not be required to comply with significant additional court orders to complete new 12-month petition findings, listing determinations, or critical habitat designations; (v) that the Defendants will continue to have the legal authority to complete proposed or final listing determinations; and (vi) that the Defendants will continue to have the authority to hire and retain sufficient listing program staff to be able to carry out the specified commitments.

15. Any of the provisions of this Agreement may be modified by the Court upon good cause shown, consistent with the Federal Rules of Civil Procedure, 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. Either Party may seek to terminate this Agreement by initiating the dispute resolution process set forth in paragraph 16 if, absent extensive modification to the Agreement, it would not be reasonable to require continued compliance with the Agreement. In addition, the Defendants may terminate the Agreement if (i) any one or more of the cases identified in Paragraph 12 is not dismissed in its entirety with prejudice, or a motion to dismiss as moot is denied in any other merits challenge to a warranted-butprecluded finding underlying the candidate status of a species that is subject to the requirement to complete either a Proposed Rule or a not-warranted finding in accordance with paragraph 2, including Center for Biological Diversity, et al. v. Salazar, Civ. No. 3:10-1501 (N.D. Cal.), or (ii) if the Defendants determine that the level of deadline litigation in the Listing Program has not been significantly reduced below the levels occurring in 2008-2010. The Court may modify or terminate the Agreement for any reason it deems equitable and
appropriate, taking into consideration the relevant circumstances, including the assumptions set forth in paragraph 14, any proposed modifications suggested by either of the Parties, and the extent to which the conduct of the Parties demonstrates that they have continued to act in a good-faith effort to comply with the Agreement and to protect the feasibility of continued compliance. The Parties recognize that a modification to the Agreement may—if necessary, equitable, and appropriate—include removing requirements from the Agreement, or extending the timeline for completing such requirements.

16. In the event that either Party seeks to modify the terms of this Agreement 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. If the Defendants are seeking the modification for any reason, including but not limited to future events that diverge from the Defendants’ assumptions identified in paragraph 14, they may include in the written notice an identification of developments that have led to the need for modification, a description of the scale of those developments, and a proposed modification as set forth in paragraph 15. The Parties agree that they will confer at the earliest possible time in a good-faith effort to resolve the dispute before pursuing relief from the Court. The Parties may request the assistance of a  mediator, if appropriate. If the Parties are unable to resolve the dispute within a reasonable time, the complaining party may seek relief from the Court. In the event that Defendants fail to meet a deadline and have not sought to modify it, the Plaintiff’s first remedy shall be a motion to enforce the terms of this Agreement. This Agreement shall not, in the first instance, be enforceable through a proceeding for contempt of court.

17. At least once each fiscal year, in the fall, the Parties will confer regarding this Agreement and the status of the Parties’ compliance with the requirements herein. The Parties will also discuss whether any modifications to the Agreement are appropriate. Such discussions shall also include consideration of whether Defendants desire to process any petition or prospective petition submitted or being considered by Plaintiff through Defendants’ internal candidate species assessment process. The Defendants will contact the Plaintiff to initiatethis discussion.

18. The terms of this Agreement are not intended to be enforceable by any person or entity other than the Parties hereto and the Court. This Agreement may be cited by the Parties in any ESA deadline litigation or warranted-but-precluded litigation filed by non-parties, as well as in the remedy phase of any ESA Section 4 merits challenge.

19. Nothing in this Agreement shall be construed as precluding the Defendants from establishing schedules for the listing of endangered and threatened species that are earlier than those set forth in this Agreement.

20. This Agreement requires the Defendants to take the actions described above by the fiscal years specified in Exhibit B and paragraphs 1, 2, 3, 4, 5, and 7. The Agreement shall not (and shall not be construed to) limit or modify the discretion accorded to the Defendants by the ESA, the Administrative Procedure Act (“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 such determination. No provision of this Agreement shall be interpreted as, or constitute, a commitment or requirement that Defendants take any action in contravention of the ESA, the APA, or any other law or regulation, either substantive or procedural.

21. Nothing in this Agreement shall be interpreted as, or shall constitute, a requirement that the Defendants are obligated to expend or pay any funds exceeding those available, or take any action in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other appropriations law.

22. The Parties agree that this Agreement was negotiated in good faith and it constitutes a
settlement of claims that were vigorously contested, denied, and disputed by the Parties. By entering into this Agreement the Parties do not waive any claim or defense.

23. Except as provided in paragraphs 8 and 9, nothing in this Agreement will bar the Plaintiff from challenging the merits of the Defendants’ decisions regarding, or treatment of, any individual species. Nothing in this Agreement will bar the Defendants from defending its decisions in such cases, or waive any defenses.

24. The Defendants agree that the Plaintiff is the prevailing party with regard to its claims in this consolidated litigation related to the allegedly untimely issuance of 90-day and 12-month petition findings, and thus are entitled to an award of reasonable attorneys’ fees and costs pursuant to section 11(g)(4) of the ESA, in these consolidated cases. 16 U.S.C. § 1540(g)(4). The Parties will attempt to reach agreement as to the appropriate amount of the fee recovery. If they are unable to do so, the Plaintiff will file an application with the Court for the recovery of fees and costs within 60 days of the approval of this Agreement by the Court. The Parties agree that any fees award pursuant to this paragraph shall not be duplicative of any fees award pursuant to Paragraph 12.

25. Use of the term “species” anywhere in this Agreement refers to the term as defined at 16  U.S.C. § 1532(16).

26. The undersigned representatives of each Party certify that they are fully authorized by the Party or Parties they represent to execute this Agreement.

27. For any subsequent communications between the Parties undertaken in accordance with this Agreement, the Parties will contact the following individuals or their successors using the appropriate contact information below:

For Plaintiff:
Nicole J. Rosmarino
Wildlife Program Director
WildEarth Guardians
6439 E. Maplewood Avenue
Centennial, CO 80111
303-993-6744
Email: nrosmarino@wildearthguardians.org

For Defendants:
Chief, Division of Conservation and Classification and
Chief, Office of ESA Litigation
Endangered Species Program
United States Fish and Wildlife Service
4401 North Fairfax Drive, Room 420
Arlington, VA 22203
Phone: (703) 358-2171

28. Upon entry of this Agreement by the Court, pursuant to Federal Rule of Civil Procedure  41(a)(1), the claims in the Plaintiff’s Complaints as to those species listed in Exhibit B or paragraphs 1 through 5 of this Agreement shall be dismissed with prejudice and the claims in the Plaintiff’s Complaints as to the remaining species shall be dismissed without prejudice. Notwithstanding the dismissal of this action, the Parties hereby stipulate and respectfully request that the Court 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 Am., 511 U.S. 375 (1994).

29. This Agreement is effective as of the date it is approved by the Court.
Dated: May 10, 2011

Respectfully submitted,

IGNACIA S. MORENO
Assistant Attorney General
SETH M. BARSKY
Section Chief
KRISTEN L. GUSTAFSON
Assistant Section Chief
MEREDITH L. FLAX
Senior Trial Attorney
/s/ Clifford E. Stevens, Jr.

This entry was posted on Monday, May 16th, 2011 at 3:24 am and is filed under Center for Biological Diversity, climate change, endangered species act, environment water and energy, global warming, headline news, land use, litigious environmental groups, politics, Western Watershed Project, WildEarth Guardians. Tags for this post: attorney fees, barrasso, center for biological diversity, eaja, eaja abuse, endangered species act, environmental litigation, equal acess to justice act, litigous environmental groups, lummis, wildearth guardians. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.