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`Case 4:20-cv-00020-DCB Document 47-1 Filed 08/18/21 Page 1 of 11
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`TODD KIM
`Assistant Attorney General
`Environment & Natural Resources Division
`U.S. Department of Justice
`
`ANDREW A. SMITH (NM Bar No. 8341)
`Senior Trial Attorney
`EMMA L. HAMILTON (CA Bar No. 325360)
`Trial Attorney
`Natural Resources Section
`c/o United States Attorney’s Office
`201 Third Street, N.W., Suite 900
`P.O. Box 607
`Albuquerque, New Mexico 87103
`Phone: (505) 224-1468
`andrew.smith@usdoj.gov
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
`TUCSON DIVISION
`
`
`Center for Biological Diversity,
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`This Stipulated Settlement Agreement is entered into by and between Plaintiff
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`Center for Biological Diversity (hereafter “Plaintiff”), and Federal Defendants United
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`Plaintiff,
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`v.
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`United States Forest Service;
`United States Fish and Wildlife Service,
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`Federal Defendants,
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`and
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`Spur Ranch Cattle Company, et al.
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`Defendant-Intervenors.
`
`Case No. No. 4:20-cv-00020-DCB
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`
`STIPULATED SETTLEMENT
`AGREEMENT
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`Case 4:20-cv-00020-DCB Document 47-1 Filed 08/18/21 Page 2 of 11
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`States Fish and Wildlife Service and United States Forest Service (hereafter “Federal
`Defendants”) (collectively, “the Parties”), who state as follows:
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`WHEREAS Plaintiff filed its “Amended Complaint for Declaratory and Injunctive
`Relief,” ECF No. 29, on December 3, 2020;
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`WHEREAS Plaintiff’s Amended Complaint alleges that Federal Defendants have
`violated various provisions of the Endangered Species Act (“ESA”) in relation to the
`United States Forest Service’s administration of livestock grazing on grazing Allotments
`within the Upper Gila River watershed on the Apache-Sitgreaves and Gila National
`Forests;
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`WHEREAS Federal Defendants intend to reinitiate ESA consultations on
`Allotments named in Plaintiff’s Amended Complaint consistent with the schedule
`presented in Attachment 1 hereto;
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`WHEREAS the Forest Service will work to include updated descriptive
`information and/or maps of areas to be excluded from livestock grazing when issuing
`Annual Operating Instructions for the Allotments named in Plaintiff’s Amended
`Complaint, to the extent consistent with existing Allotment Management Plans;
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`WHEREAS the Forest Service will work to include updated descriptive
`information and/or maps of areas to be excluded from livestock grazing in the relevant
`Allotment Management Plans for the Allotments named in Plaintiff’s Amended
`Complaint when those Allotment Management Plans are revised in the future;
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`WHEREAS the Forest Service intends to participate in a future long-term
`planning effort to address conservation issues with listed species in the areas of the
`Allotments named in this litigation, with the specifics and feasibility of that planning
`effort -- such as managing invasive species or conducting species surveys -- to be
`determined during the planning process;
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`WHEREAS Plaintiff and Federal Defendants have reached an agreement to
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`Case 4:20-cv-00020-DCB Document 47-1 Filed 08/18/21 Page 3 of 11
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`resolve this case, with the Parties agreeing to undertake and perform the measures set
`forth in this Stipulated Settlement Agreement;
`
`THEREFORE, pursuant to Federal Rule of Civil Procedure 41, Plaintiff and
`Federal Defendants stipulate and agree as follows:
`1.
`Definitions. The Parties agree that the following terms used in this
`Agreement have the following definitions for purposes of this Agreement:
`a. Excess Livestock means any livestock owned by the holder of a National
`Forest System grazing permit, but grazing on National Forest System
`lands in greater numbers, or at times or places other than permitted in
`the grazing permit or authorized on the annual Bill for Collection.
`b. Unauthorized Livestock means any livestock that is not authorized by
`permit (or Bill for Collection) to be upon the land on which the
`livestock is located and is not related to use authorized by a grazing
`permit (i.e., livestock owned by other than a National Forest grazing
`permit holder). Noncommercial pack and saddle stock used by
`recreationists, travelers, other forest visitors for occasional trips, as well
`as livestock to be trailed over an established driveway when there is no
`overnight stop on Forest Service administered land do not fall under this
`definition.
`2.
`The Forest Service will monitor riparian areas excluded from permitted
`livestock grazing on National Forest System lands within or adjoining the grazing
`allotments listed in Attachment 2 for the presence of excess or unauthorized livestock.
`The excluded areas to be monitored are described in Attachment 2.
`a. The Forest Service will conduct an initial inspection of the excluded
`areas described in Attachment 2 within three months of the operative
`date of this Stipulated Settlement Agreement.
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`b. In addition to the initial inspection, a minimum of two inspections of
`each location will be conducted annually (where each “year” begins and
`ends on the operative date of this Agreement and anniversaries of that
`operative date), except for closed or vacant Allotments, for which a
`minimum of one inspection will be conducted annually in addition to
`the initial inspection.
`c. Monitoring timing and frequency may vary depending upon individual
`allotment management, such as permitted season of use and time
`periods when livestock are authorized in pastures adjacent to excluded
`riparian areas.
`d. Monitoring will include the inspection of exclosure fences described in
`Attachment 2 on National Forest System lands that are intended to
`exclude livestock from the excluded riparian areas described in
`Attachment 2.
`3.
`If the Forest Service detects excess or unauthorized livestock in any
`excluded riparian areas identified in Attachment 2, the agency will initiate the appropriate
`administrative process to remove those livestock from the area.
`a. If excess livestock are detected in excluded riparian areas, the Forest
`Service will make reasonable efforts, within one business day, to
`contact the owner and provide instructions for the livestock to be
`removed. The Forest Service will provide the livestock owner a specific
`time frame to remove the livestock (typically within 72 hours).
`b. The Forest Service will verify that excess livestock have been removed
`either through a site visit or discussion with the owner of the livestock.
`c. If the Forest Service cannot identify the owner of any livestock detected
`in excluded riparian areas, the Forest Service will use best efforts to
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`Case 4:20-cv-00020-DCB Document 47-1 Filed 08/18/21 Page 5 of 11
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`safely move any unauthorized or excess cattle discovered during
`inspections out of excluded riparian areas, with the exception of moving
`unauthorized or excess livestock that may pose safety risks to Forest
`Service personnel performing the inspection.
`4.
`If the Forest Service receives a report from Plaintiff or other parties that
`excess or unauthorized livestock are present in an excluded riparian area identified in
`Attachment 2, the Forest Service will make reasonable efforts to verify the presence of
`livestock within two business days and, if present, will implement the appropriate
`removal process described above in Paragraph 3.
`a. Any reports of excess or unauthorized livestock in closed or excluded
`riparian areas that Plaintiff submits to the Forest Service will include the
`name of the supervising employee, the date and time of the discovery,
`the location of the livestock (preferably GPS in NAD 83), the number of
`livestock observed, and date-stamped photos if available.
`b. If Plaintiff conducts independent assessments or monitoring of range
`conditions in excluded or closed riparian areas identified in Attachment
`2, Plaintiff will provide the Forest Service with any data or resulting
`reports to the Forest Service within three months following the
`observations. Plaintiff will notify the Forest Service within 24 hours or
`as soon as practicable if it identifies any livestock in excluded or closed
`riparian areas identified in Attachment 2.
`5.
`If the Forest Service detects damage to fencing during monitoring described
`in Paragraph 2, the Forest Service, depending upon maintenance responsibility, will
`either repair the fence or instruct the associated grazing permittee to repair the fence.
`a. Minor repairs (e.g., busted wire, closing gate) will be accomplished as
`soon as practicable, and repairs requiring additional work (e.g., new
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`Case 4:20-cv-00020-DCB Document 47-1 Filed 08/18/21 Page 6 of 11
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`wire and post to patch hole, removal of fallen trees) will be completed
`within 14 days, to the extent reasonable and feasible, subject to
`available funding.
`b. The Forest Service will continue to work with permittees to identify
`areas where livestock may be incidentally accessing closed or excluded
`riparian areas through gaps in natural barriers and remedy those
`situations, subject to available staffing and funding, and in compliance
`with Federal law.
`c. If the Forest Service identifies any particular riparian area(s) excluded
`from authorized grazing on any particular Allotment(s) identified in
`Attachment 2 where the agency determines that livestock intrusions are
`a chronic issue, the Forest Service will initiate best efforts to determine
`how to address those intrusions on a more permanent basis.
`6.
`The Forest Service will prepare quarterly reports listing any inspections
`conducted under Paragraph 2 above, and subsequent actions taken, if any, under
`Paragraphs 3-5. The Forest Service will provide these inspection reports to Plaintiff, and
`will ensure that each report is signed by a Forest Service employee who prepared the
`report.
`7.
`The commitments made by the Forest Service in Paragraphs 1-6 will
`commence on the date that this agreement is approved by the Court, and extend for a
`period of three years from that date. Except as stated otherwise herein, the Forest Service
`retains discretion in how it carries out its obligations under the Agreement.
`8.
`Attorneys’ Fees and Costs.
`a. Federal Defendants agree to pay Plaintiff $47,500.00 in full and
`complete satisfaction of any and all claims, demands, rights, and causes
`of action pursuant to the Equal Access to Justice Act (“EAJA”), 28
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`Case 4:20-cv-00020-DCB Document 47-1 Filed 08/18/21 Page 7 of 11
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`U.S.C. § 2412(d), ESA Section 11(g)(4), 16 U.S.C. § 1540(g)(4), and/or
`any other statute and/or common law theory, for any and all attorneys’
`fees and costs incurred in this litigation through the date of dismissal of
`the action pursuant to Paragraph 9.
`b. Federal Defendants’ payment as identified in Paragraph 8.a above, shall
`be accomplished by electronic fund transfer into the Center for
`Biological Diversity. Plaintiff’s counsel will provide the appropriate
`account number, tax identification, and other information needed to
`facilitate payment to undersigned counsel for Federal Defendants.
`Federal Defendants shall submit the paperwork for the payment within
`thirty (30) business days after this Stipulated Settlement Agreement is
`approved by the Court or Plaintiff provides the necessary information as
`required by this paragraph to facilitate the payment, whichever is later.
`Plaintiff’s counsel shall notify undersigned counsel for Federal
`Defendants when payment is received.
`c. Plaintiff agrees that receipt of the full amount specified in Paragraph 8.a
`above shall operate as a release of any and all claims for attorneys’ fees
`and costs that Plaintiff has incurred in this litigation through the date of
`dismissal of the action pursuant to Paragraph 9.
`d. Plaintiff and its attorneys agree to hold harmless Federal Defendants in
`any litigation, further suit, or claim arising from the payment of the
`agreed-upon $47,500.00 settlement amount pursuant to Paragraph 8.a.
`Under 31 U.S.C. §§ 3711, 3716; 26 U.S.C. § 6402(d); 31 C.F.R. §§
`285.5, 901.3; and other authorities, the United States will offset against
`the attorney fee award Plaintiff’s delinquent debts to the United States,
`if any. See Astrue v. Ratliff, 560 U.S. 586 (2010).
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`9.
`Plaintiff dismisses this action with prejudice, pursuant to Rule 41 of the
`Federal Rules of Civil Procedure.
`10.
`In the event there is a dispute over compliance with any term or provision
`of this Stipulated Settlement Agreement, the disputing Party will notify the other Party in
`writing of the nature of the dispute and, within 7 days after such notification, the Parties
`will initiate discussions and attempt to resolve the dispute. If the Parties do not resolve
`the dispute within 30 days thereafter, Plaintiff’s option is to file a new case. Through this
`Agreement, Federal Defendants do not waive any jurisdictional, procedural, or
`substantive defenses to any new cases. The Parties agree not to seek to invoke the
`contempt powers of this Court in aid of enforcement of this Agreement. Plaintiff does
`not waive any right to bring other litigation regarding the Allotments encompassed by
`this Agreement, including substantive challenges to any final agency actions resulting
`from the reinitiated consultations.
`11.
`The undersigned representatives of Plaintiff and Federal Defendants certify
`that they are fully authorized by the Party or Parties whom they represent to enter into the
`terms and conditions of this Stipulated Settlement Agreement and to legally bind those
`Parties to it.
`12. Nothing in this Stipulated Settlement Agreement shall be interpreted as, or
`shall constitute, a commitment or requirement that Federal Defendants obligate or pay
`funds, or take any other actions in contravention of the Anti-Deficiency Act, 31 U.S.C. §
`1341, or any other applicable law. Nothing in this Stipulated Settlement Agreement shall
`be construed to deprive a federal official of authority to revise, amend or promulgate
`regulations, or to amend or revise land and resource management plans. Nothing in this
`Stipulated Settlement Agreement is intended to or shall be construed to waive any
`obligation to exhaust administrative remedies; to constitute an independent waiver of the
`United States’ sovereign immunity; to change the standard of judicial review of federal
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`agency actions under the Administrative Procedure Act (“APA”); or to otherwise extend
`or grant this Court jurisdiction to hear any matter, except as expressly provided in the
`Stipulated Settlement Agreement.
`13.
`It is hereby expressly understood and agreed that this Stipulated Settlement
`Agreement was jointly drafted by Plaintiff and Federal Defendants. Accordingly, the
`Parties hereby agree 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 the Stipulated Settlement Agreement.
`14.
`This Stipulated Settlement Agreement contains all of the agreements
`between Plaintiff and Federal Defendants, and is intended to be and is the final and sole
`agreement between the Parties concerning the complete and final resolution of Plaintiff’s
`claims. Plaintiff and Federal Defendants agree that any other prior or contemporaneous
`representations or understandings not explicitly contained in this Stipulated Settlement
`Agreement, whether written or oral, are of no further legal or equitable force or effect.
`Any subsequent modifications to this Stipulated Settlement Agreement must be in
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`writing, and must be signed and executed by Plaintiff and Federal Defendants.
`15.
`This Stipulated Settlement Agreement is the result of compromise and
`settlement, and does not constitute an admission, implied or otherwise, by Plaintiff or
`Federal Defendants to any fact, claim, or defense on any issue in this litigation. This
`Stipulated Settlement Agreement has no precedential value and shall not be cited in any
`other litigation.
`16.
`The Parties understand that notwithstanding their efforts to comply with the
`commitments contained herein, events beyond their control may prevent or delay such
`compliance. Such events may include natural disasters as well as unavoidable legal
`barriers or restraints, including those arising from actions of persons or entities that are
`not party to this Stipulated Settlement Agreement. Force majeure shall not continue
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`beyond the circumstances and conditions that prevent timely performance, and shall not
`apply if alternative means of compliance are available. The Party claiming force majeure
`shall have the burden of proof in proceedings to enforce or modify the Stipulated
`Settlement Agreement.
`17.
`This Stipulated Settlement Agreement contains all of the agreements
`between the Parties, and is the final and sole agreement between the Parties regarding this
`dispute. None of the provisions or obligations of this Stipulated Settlement Agreement
`shall become effective and binding unless and until the Court enters its approval.
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`Respectfully submitted on August 18, 2021.
`
`TODD KIM
`Assistant Attorney General
`United States Department of Justice
`Environment & Natural Resources Division
`
` /s/ Andrew A. Smith .
`ANDREW A. SMITH (NM Bar No. 8341)
`Senior Trial Attorney
`Natural Resources Section
`c/o United States Attorney’s Office
`201 Third Street, N.W., Suite 900
`P.O. Box 607
`Albuquerque, New Mexico 87103
`Phone: (505) 224 1468
`andrew.smith@usdoj.gov
`
`EMMA L. HAMILTON (CA Bar No. 325360)
`Trial Attorney
`Natural Resources Section
`P.O. Box 7611
`Washington, D.C. 20044-7611
`Phone: (202) 305-0479
`Fax: (202) 305-0506
`emma.hamilton@usdoj.gov
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`Attorneys for Federal Defendants
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` /s/ Brian Segee (elect. approved 8/18/21) .
`Brian Segee (Cal. Bar No. 200795)
`Center for Biological Diversity
`660 S. Figueroa Street, Suite 1000
`Los Angeles, CA 90017
`Tel: 805-750-8852
`Email: bsegee@biologicaldiversity.org
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`Marc D. Fink (MN Bar No. 343407)
`Center for Biological Diversity
`209 East 7th Street
`Duluth, Minnesota 55805
`Phone: 218-464-0539
`Email: mfink@biologicaldiversity.org
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`Attorneys for Plaintiff
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