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Save the Manatee Club v. Ballard

March 18, 2003

SAVE THE MANATEE CLUB, ET AL. PLAINTIFFS,
v.
LT. GENERAL JOE N. BALLARD, ET AL. DEFENDANTS.



(PROPOSED) STIPULATED ORDER

'WHEREAS, on January 13, 2000, Plaintiffs, eighteen environmental organizations and three individuals, filed suit against the U.S. Army Corps of Engineers ("Corps") and the U.S. Fish and Wildlife Service ("Service") alleging violations of several federal statutes, including the Endangered Species Act ("ESA"), 16 U.S.C, §§ 1531 et seq., the National Environmental Policy Act ("NEPA"), 42 US.C. §§ 4321 et seq., the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. §§ 1361 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq., with regard to the Florida manatee;

WHEREAS, this Court granted the Motions of the Association of Florida Community Developers, Inc., the National Marine Manufacturers Association, the Marina Operators Association of America, and the Marine Industries Association of Florida, Inc. (collectively "Intervenors") to intervene as defendants in this case;

WHEREAS, by Settlement Agreement, approved by the Court on January 5, 2001, the parties formally resolved their disputes;

WHEREAS, Paragraph 17.8 of the Settlement Agreement provides that a party to the agreement may initiate the dispute resolution process to challenge actions arising out of or relating to the Settlement Agreement by filing a Notice of Controversy;

WHEREAS, by correspondence dated October 24, 2001, the Plaintiffs filed a Formal Notice of Controversy with the Department of Justice challenging certain actions taken by the Service alleging that these actions violated the Settlement Agreement;

WHEREAS, on April 17, 2002, the Plaintiffs filed an Expedited Motion to Enforce the Settlement Agreement, and on July 9, 2002, the Court found that the Service had not fulfilled its requirement under the Agreement to designate refuges and sanctuaries throughout peninsular Florida;

WHEREAS, the Court ordered on August 1, 2002, and November 7, 2002, that federal defendants show cause why they should not be held in contempt for violating the Court's orders of January 5 and January 17, 2001, and August 1, 2002;

WHEREAS, the Plaintiffs and the federal defendants desire to resolve the controversies that are the subject of this Stipulated Order;

WHEREAS, the federal defendants do not concede any wrongdoing, and the plaintiffs and federal defendants agree that the following Stipulated Order is a just, fair, adequate and equitable resolution of the disputes between the parties;

WHEREAS, the plaintiffs and federal defendants agree that settlement of this controversy is in the public interest;

NOW, therefore in consideration of the premises hereinabove stated and the mutual terms and conditions hereinafter set forth, the plaintiffs and federal defendants agree as follows:

Manatee Protection Areas

1. In accordance with SO C.F.R. §§ 17.100-17.107, the Service agrees to submit to the Federal Register for publication a proposed rule for the designation of additional manatee protection areas (i.e., refuges and/or sanctuaries as defined in SO C.F.R- § 17.102) in the Caloosahatchee River (Lee County, Florida), the St. Johns River (Duval, Clay, and St. John's County, Florida), and the Halifax River/Tomoka River (Volusia County, Florida) on or before March 31, 2003. Exhibit A describes the areas that the Service has determined, based on. the current best available data, should be proposed as manatee refuges or sanctuaries.

2. The Service agrees to submit to the Federal Register for publication its final decision on the proposed rule described in paragraph 1 on or before July 31, 2003. Plaintiffs and Federal Defendants agree that the Service retains its discretion consistent with the Administrative Procedure Act in reaching its final decision with respect to manatee protection areas identified in paragraph 1.

3. For any areas that are designated as manatee refuges or sanctuaries in accordance with the process described in paragraphs 1 and 2, the Service agrees to the maximum extent practicable to place temporary signs/buoys at each designated site no later than August 31, 2003, that will advise the public to the extent feasible about applicable restrictions. The Service will initiate the process of placing permanent signs no later than September 1, 2003, with placement of all permanent signs to be completed as soon as practicable thereafter. The Service agrees to provide the parties a report on progress in placement of signs at each refuge or sanctuary every 30 days until permanent signage for each refuge or sanctuary is complete,, with the first report due to the parties on September 30, 2003.

4. For those areas designated by the Service as manatee refuges or sanctuaries in the final rule published in the Federal Register on November 8, 2002, the Service agrees to initiate the process of placing permanent signs on or before February 10, 2003, with placement of all permanent signs to be completed as soon as practicable thereafter. The Service agrees to provide the parties a report on progress in placement of permanent signs at each refuge or sanctuary every 30 days until permanent signage for each refuge or sanctuary is complete, with the first report due to the parties on March 10, 2003.

Section 7 Consultation

5. The plaintiffs and federal defendants acknowledge the Service's memorandum dated January 22, 2003, concerning "Consultation Procedures to be followed for All Watercraft-related Access Activities Occurring within Peninsular Florida." The plaintiffs and federal defendants recognize that a failure by the Service to take any actions specified in the memorandum shall not constitute a violation of this Stipulated Order. The plaintiffs and federal defendants also agree that, until the date of the last report due under paragraph 3 of this Stipulated Order, or until December 31, 2003, whichever occurs first, should the federal defendants revise, change or supercede the substance of the memorandum described in this paragraph, through the Director of the Service or the Assistant Secretary for Fish and Wildlife and Parks of the U.S. Department of the Interior, the Service will, within ten (10) working days, notify plaintiffs and defendant intervenors through counsel of record of any such change.

6. To the extent that the Service's memorandum of January 22, 2003, described in paragraph 5 constitutes a revision of the interim guidance, this Stipulated Order constitutes notice to all parties to the January 5, 2001, Settlement Agreement of such revision, and the plaintiffs and federal defendants agree that the notice requirement contained in paragraph 10 of the January 5, 2001, Agreement has been satisfied.

Miscellaneous Provisions

7. With regard to the Service's November 8, 2002, Federal Register notice regarding additional measures for the protection and recovery of manatees, the Service agrees to provide to the plaintiffs and defendant-intervenors no later than February 12, 2003, all comments received by the Service in response to the notice. Any comments postmarked before the close of the public comment period but received after February 7, 2003, will be provided to the plaintiffs and defendant-intervenors in a supplemental submission. No later than March 10, 2003, the Service will meet with the plaintiffs and defendant intervenors for the purpose of conferring on additional protection measures identified in the public comments that may be warranted, and the form and substance of such measures.

8. The plaintiffs and federal defendants acknowledge the Service's memorandum dated January 22, 2003, concerning "Law Enforcement Priorities and Manatee Protection Measures." The plaintiffs and federal defendants recognize that a failure by the Service to take any actions :specified in the memorandum shall not constitute a violation of this Stipulated Order. The plaintiffs and federal defendants also agree that, until the date of the last report clue under paragraph 3 of this Stipulated Order, or until December 31, 2003, Whichever occurs first, should the federal defendants revise, change or supercede the substance of the memorandum described in this paragraph, through the Director of the Service or the Assistant Secretary for Fish and Wildlife and Parks of the U.S. Department of the Interior, the Service will, within ten (10) working days, notify plaintiffs anal defendant-intervenors through counsel of record of any such change.

9. The plaintiffs and federal defendants acknowledge the Assistant Secretary for Fish and Wildlife and Parks' memorandum dated December 23, 2002, concerning "Manatee Conservation" in national parks in Florida. The plaintiffs and federal defendants, recognize that a failure by the National Park Service ("NPS") to take any actions specified in the memorandum shall not constitute a violation of this Stipulated Order. The plaintiffs and federal defendants also agree that, until the date of the last report due under paragraph 3 of this Stipulated Order, or until December 31, 2003, whichever occurs first; should the federal defendants revise, change or supercede the substance of the memorandum referred to in this paragraph, through the Director of NPS or the Assistant Secretary for Fish and Wildlife and Parks of the U. S. Department of the Interior, the Service will, within ten (10) working days, notify plaintiffs and defendant-intervenors through counsel of record of any such change.

Fees and Expenses

10. Plaintiffs and federal defendants agree that the plaintiffs are entitled to an award of reasonable attorneys' fees and expenses incurred in enforcing before this court the terms of paragraph 11 of the January 5, 2041 court order. The Plaintiffs and federal defendants will attempt to agree on the appropriate amount of such an award. If they are unable to do so, they will complete the briefing on Plaintiffs' pending motion for fees and costs. Plaintiffs' and federal defendants' agreement that the Court should vacate the August 1, 2002 and November 7, 2002 Orders to Show Cause does not affect any claim by the Plaintiffs for attorneys' fees, costs, or expenses associated with resolution of the existing dispute between the parties.

Orders to Show Cause 'Why Federal Defendants Should Not Be Held in Contempt

11. The plaintiffs and federal defendants agree that, in light of the commitments made by the federal defendants in this Stipulated Order, no contempt citation should be issued against the federal defendants and that the Court's orders of August 1, 2002, and November 7, 2002, to show cause why the federal defendants should not be held in contempt should be vacated. . The plaintiffs and federal defendants have therefore jointly proposed vacature as part of this Order.

12. The Plaintiffs reserve the right to file any motion to enforce for any alleged future violations of the settlement agreement or this stipulated order.

13. Upon the Court's approval of this Stipulation the federal appellants will file a FRAP 42(b) motion to dismiss the appeal of this Court's August 1, 2002, order in Save the Manatee Club et al v. Ballard et al. D.C. Cir. 02-5318.

Dispute Resolution Procedures and Other Provisions

14. The plaintiffs and federal defendants stipulate to the following dispute resolution process: A. In the event that any dispute or potential dispute arises between the plaintiffs and federal defendants with respect to the terms or conditions of this Stipulated Order, the party asserting such dispute shall invoke the provisions of this paragraph prior to seeking resolution of the dispute by other means, including seeking relief from the Court.

B. In the event of any dispute or claim ("controversy") arising out of or relating to this Stipulated Order or an alleged breach thereof, the plaintiffs and federal defendants shall use their best efforts to settle the controversy. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to all parties. Any party to this Stipulated Order asserting a controversy shall notify all other parties hereto, in writing, stating the nature of the matter to be resolved and the position of the party asserting the controversy (the "notice of controversy"). The parties receiving the notice of controversy shall respond in writing within ten (10) working days, stating their position regarding the controversy. For purposes of this paragraph, notice shall be deemed provided when the written notice of controversy is actually received by Jean Williams, Chief of the Wildlife and Marine Resources Section, on behalf of the federal defendants, and Eric Glitzenstein on behalf of the Plaintiffs.

C. If the plaintiffs and federal defendants do not resolve the controversy to their mutual satisfaction within ten (10) working days from the date on which the response to the notice of controversy is delivered, the aggrieved party may file a motion for relief to be adjudicated by the Court.

15. Should the Service determine that good cause exists to delay the time frames set forth in this Stipulated Order, the Service shall provide notice to that effect, as soon as practicable, to the Plaintiffs' and defendant-intervenors' counsel along with a statement describing the reason for the delay. Should the plaintiffs and federal defendants be unable to agree to an appropriate extension of time, the federal defendants will file a motion for appropriate relief pursuant to Fed. R. Civ. P. 60(b) to obtain any extension of the time frames prescribed in this Stipulated Order.

16. No provision of this Stipulated Order shall be interpreted as or constitute a commitment or requirement that .federal defendants take actions in contravention of the ESA, Clean Water Act ("CWA"), MMPA, APA or any other law or regulation, either substantive or procedural.

17. Nothing in this Stipulated Order shall be interpreted or construed as a commitment or requirement that the Service or the Corps obligate or pay funds in contravention of the Anti-Deficiency Act, 31 ...


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