STIPULATED REQUEST FOR APPROVAL OF SETTLEMENT AGREEMENT AND ENTRY OF CONSENT DECREE; [PROPOSED] FINDINGS OF FACT AND CONCLUSIONS OF LAW THEREON. FINAL JUDGMENT, ORDER AND DECREE.
YVONNE GONZALEZ ROGERS, District Judge.
Plaintiffs Drakes Bay Oyster Company and Kevin Lunny ("Plaintiffs") and Defendants S.M.R. Jewell, in her official capacity as Secretary of the Interior, et al. ("Defendants") (collectively, "the Parties"), through undersigned counsel, state as follows:
I. RECITALS
A. Whereas Plaintiffs and Defendants have been engaged in settlement discussions and have reached a final resolution of all of Plaintiffs' claims in the above-captioned case as set forth in the accompanying Settlement Agreement and [Proposed] Consent Decree ("Settlement"), filed concurrently herewith and attached as Exhibit 1 to this Stipulation.
B. Whereas the Settlement has been approved by Plaintiffs and Defendants.
C. Whereas the Parties intend, and respectfully request, that the Court enter the Settlement as a Consent Decree as set forth in the Settlement.
D. Whereas the Court may enter the Settlement as a Consent Decree if the Consent Decree is fair, reasonable, and equitable, and does not violate the law or public policy.
Therefore, the Parties respectfully present this Stipulated Request for Approval of Settlement and Entry of Consent Decree and [Proposed] Findings of Fact and Conclusions of Law Thereon.
II. STIPULATED [PROPOSED] FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: SETTLEMENT AGREEMENT AND CONSENT DECREE
The Parties hereby stipulate and respectfully request that the Court find as follows:
A. BACKGROUND
1. The Court has presided over this case since it was originally filed in December 2012 and is familiar with the facts and claims at issue. The Court previously summarized the statutory and factual background of this case in its order denying Plaintiffs' motion for preliminary injunction. Drakes Bay Oyster Co. v. Salazar, 921 F.Supp.2d 972, 976-83 (N.D. Cal. 2013) (Drakes Bay I), aff'd sub nom. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073 (9th Cir. 2014) (Drakes Bay II), cert. den'd 134 S.Ct. 2877 (2014).
2. Following the issuance of the mandate by the Ninth Circuit, the Parties entered into settlement negotiations. Counsel for Plaintiffs and Defendants advised the Court that they were engaged in settlement discussions at a July 7, 2014, case management conference. See ECF #136. The Court referred the case to the Hon. Donna M. Ryu, United States Magistrate-Judge, to conduct a settlement conference. Id.; see also ECF #137 (Notice of Settlement Conference and Settlement Conference Order). On August 6, 2014, the Court approved a stipulated confidentiality order proposed by the Parties, to assist them in their discussions. ECF #148. Judge Ryu held settlement conferences on August 8, August 11, and August 19, 2014, in which counsel for the Plaintiffs and Defendants participated. See ECF ## 151, 152, 153.
3. On September 30, 2014, the Parties, through their counsel, executed the Settlement. The Settlement recites that counsel for Plaintiffs was authorized to enter into the Consent Decree on behalf of Plaintiffs DBOC and Kevin Lunny. The Settlement further recites that counsel for Defendants has been authorized to enter into the Consent Decree on behalf of the United States.
B. STANDARDS FOR APPROVING A CONSENT DECREE
4. The Court may approve a consent decree when the decree is "`fair, reasonable and equitable and does not violate the law or public policy.'" Turtle Island Restoration Network v. United States Dep't of Commerce, 672 F.3d 1160, 1165 (9th Cir. 2012) (quoting Sierra Club, Inc. v. Elec. Controls Design, Inc., 909 F.2d 1350, 1355 (9th Cir. 1990)). In determining whether a consent decree is fair, the Court considers both procedural and substantive fairness, including whether the decree is the product of good-faith, arms-length negotiations and is equitable. Turtle Island Restoration Network v. United States Dep't of Commerce, 834 F.Supp.2d 1004, 1016-17 (D. Haw. 2011), aff'd 672 F.3d 1160 (9th Cir. 2012); United States v. Chevron, 380 F.Supp.2d 1104, 1110-11 (N.D. Cal. 2005). A consent decree that is the product of good faith, arms-length bargaining is "presumptively valid." United States v. Oregon, 913 F.2d 576, 581 (9th Cir. 1990). With respect to substantive fairness, the Court's task is not to determine whether the settlement is "ideal" or one the court might have fashioned. Chevron, 380 F. Supp. 2d at 1111 (citing United States v. Cannons Eng'ing Corp., 899 F.2d 79, 84 (1st Cir. 1990). Rather, "the court's approval is nothing more than an amalgam of delicate balancing, gross approximations and rough justice." United States v. Oregon, 913 F.2d at 581 (internal quotations omitted). "In addition, because it is a form of judgment, a consent decree must conform to applicable laws." Id. at 580. In making these determinations, the Court's familiarity with the lawsuit "can be an important factor" in determining whether a hearing is necessary before approving a consent decree. Id. at 582.
C. THE CONSENT DECREE IS FAIR AND EQUITABLE.
5. The Settlement is the product of good-faith negotiations, reflects the advice of experienced counsel for Plaintiffs and Defendants, and takes into account the possible risks involved in litigation if the Settlement were not approved. This litigation has been hard fought all the way to the United States Supreme Court. Plaintiffs vigorously pursued the claims in their amended complaint, and settlement negotiations did not begin until after the Supreme Court denied Plaintiffs' petition for writ of certiorari on June 30, 2014. The Parties conducted arms-length settlement negotiations, including intensive discussions between August 8 and August 19, 2014, which were presided over by Magistrate-Judge Ryu. The Settlement reached reflects a reasonable compromise that considers both Plaintiffs' prospects for success on the merits and the time it would take to reach a final judgment on the merits, including any claims that might have been brought through further amendment of the pleadings. See, e.g., ECF# 113 (Joint Case Management Statement filed Sept. 16, 2014). Thus, the Settlement is procedurally fair.
6. The Settlement is also equitable and comports with substantive fairness for reasons which include the following:
a. It provides DBOC and Mr. Lunny with a reasonable period of time to wind down shellfish harvesting from Drakes Estero to recover DBOC's economic investment in shellfish planted before the Secretary of the Interior's ("Secretary") November 29, 2012, decision, consistent with Plaintiffs' contention that the permit issued to DBOC by Defendants in 2008 allows the company a reasonable time to remove valuable property after the expiration of the permit. Thus, the Settlement allows DBOC to harvest shellfish and sell them away from Point Reyes National Seashore ("Point Reyes") up to midnight on December 31, 2014. The Settlement allows DBOC to continue to use specified onshore facilities to remove and process shellfish for sale away from Point Reyes; Plaintiffs closed DBOC's retail and canning operations on July 31, 2014. During the period between the execution of the Settlement and December 31, 2014, the Settlement requires Plaintiffs to remove and dispose of all other shellfish from areas of cultivation in Drakes Estero according to an enforceable timetable. Plaintiffs are also required under the Settlement to vacate oyster racks in Drakes Estero on an enforceable schedule. However, the National Park Service ("Park Service") agrees in the Settlement to undertake the removal of oyster racks from Drakes Estero, as well as all onshore and offshore property related to shellfish cultivation remaining after December 31, 2014, at the Park Service's sole expense and cost. The Settlement requires Plaintiffs' shellfish removal operations in Point Reyes to cease by December 31, 2014, and requires DBOC to permanently close its operations in Drakes Estero at that time.
b. The Settlement allows the Park Service to immediately begin the removal of specified onshore property not associated with shellfish removal, and to initiate oyster rack removal and clean-up operations in Drakes Estero upon entry of the Settlement as a consent decree, thereby advancing the Park Service's goal of expeditiously transitioning Drakes Estero to management as a marine wilderness. The Settlement allows the Park Service's removal and clean-up operations to occur concurrently with DBOC's removal of shellfish from Drakes Estero. The Parties agree to provide each other information and to communicate about each other's activities.
c. The Settlement terminates the litigation in this case and avoids future litigation. Plaintiffs dismiss all claims in their amended complaint with prejudice; waive and release all claims or causes of action for damages or equitable relief based on the alleged harms or violations relating to the United States' management, oversight, or administration of Point Reyes and/or Drakes Estero; and further warrant and represent that they will not bring or cause to be brought any other action or suit related to the claims asserted, or that could have been asserted, in the above-captioned case. Defendants covenant not to sue or take administrative action against Plaintiffs for actions occurring prior to the execution of the Settlement, including trespass, ejectment, unpaid rent, claims predicated upon DBOC's commercial shellfish operations, and claims predicated on breaches or violations of the 2008 Special Use Permit issued to DBOC and Mr. Lunny. The Settlement is the result of a compromise and involves no admission of liability or wrongdoing on the part of any party.
d. The Park Service will extend federal relocation benefits to all qualified employees of DBOC who live on-site. Regardless of whether employees who reside on-site qualify for federal relocation benefits, they may continue to live on-site for not less than 90 days following the closure of DBOC on December 31, 2014. The Park Service will continue to provide those employees residing on-site with power, drinking water, and septic services meeting health and safety requirements.
e. The entry of the Settlement as a consent decree will provide the Parties with potential assistance from the Court in the event disputes arise over compliance with the terms of the Settlement. Because DBOC will permanently close its Point Reyes operations on December 31, 2014, the potential need for Court assistance will be of limited duration.
D. THE CONSENT DECREE IS REASONABLE
7. The reasonableness inquiry focuses on whether a consent decree is confined to the dispute between the parties and accomplishes its purported goal. Envtl. Def. v. Leavitt, 329 F.Supp.2d 55, 71 (D.D.C. 2004); Turtle Island, 834 F. Supp. 2d at 1018. Here, the Settlement resolves Plaintiffs' challenge to the Secretary's decision not to issue a new, ten-year special use permit that would have allowed DBOC to continue commercial shellfish operations in Drakes Estero. Plaintiffs' prior federal authorizations to conduct shellfish operations having expired at the end of November 2012, the Settlement affords Plaintiffs a reasonable period of time to complete the wind-down of removal of their personal property, including shellfish, from Drakes Estero and adjacent onshore land. The Settlement does not affect Mr. Lunny's continued use of G Ranch and does not prevent Mr. Lunny from conducting commercial shellfish operations outside of Point Reyes. The Settlement facilitates the Park Service's objective of managing Drakes Estero as a marine wilderness through (1) the permanent closure of DBOC facilities and operations in Drakes Estero and adjacent onshore land on December 31, 2014; and (2) Plaintiffs' relinquishment of all asserted rights to conduct commercial shellfish operations in Point Reyes and their covenant not to operate or accept an authorization to operate a commercial shellfish operation in Drakes Estero except according to the terms of the Settlement. Thus, the Settlement is reasonable.
E. THE CONSENT DECREE DOES NOT VIOLATE LAW OR PUBLIC POLICY
8. The Settlement does not violate any law, including but not limited to the Wilderness Act. 16 U.S.C. § 1131 et seq. As noted above, the Settlement requires the permanent closure of DBOC's Point Reyes operations as of midnight December 31, 2014. By providing for removal of DBOC's farmed shellfish, including shellfish too small to be sold commercially, the Settlement Agreement protects public health and furthers the Park Service's management goals for Drakes Estero. On December 4, 2012, the Park Service published a Federal Register Notice announcing the change in status of Drakes Estero from potential wilderness to wilderness. Drakes Bay I, 921 F. Supp. 2d at 982.
9. The Settlement is consistent with the strong public policy favoring the settlement of litigation, including through the use of consent decrees in appropriate circumstances. Cannons Eng'ing, 899 F.2d at 84; Securities and Exchange Comm'n v. Randolph, 736 F.2d 525, 528 (9th Cir. 1984). The Settlement here does not violate public policy.
F. CONCLUSIONS OF LAW
For the foregoing reasons, the accompanying Settlement is fair, reasonable, and equitable, and does not violate the law or public policy. The parties respectfully request that the Court approve the Settlement and enter the Consent Decree as the final Order, Judgment, and Decree in the above-captioned case.
[PROPOSED] ORDER
THE COURT APPROVES THE TERMS OF THE STIPULATION AND ADOPTS THE FINDINGS OF FACT AND CONCLUSIONS OF LAW SET FORTH THEREIN.
The Court will enter the accompanying Settlement Agreement and [Proposed] Consent Decree as a final Judgment, Order, and Decree in this case.
IT IS SO ORDERED.
Exhibit 1 Settlement Agreement and [Proposed] Consent Decree
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION
Case No: 3:12-cv-06134-YGR
DRAKES BAY OYSTER COMPANY, et al.,
Settlement Agreement and
Plaintiffs, [Proposed] Consent Decree
v.
S.M.R. JEWELL, in her official capacity as
Secretary, U.S. Department of the Interior, et al.,
Defendants.
SETTLEMENT AGREEMENT AND [PROPOSED] CONSENT DECREE
For the purpose of settling and resolving the disputes that have arisen between and among them without there being any trial or adjudication of any issue of law or fact, and without constituting an admission of liability on the part of any party, and for no other purpose, Plaintiffs Drakes Bay Oyster Company ("DBOC") and Kevin Lunny (collectively,"Plaintiffs") and Defendants S.M.R. Jewell, acting in her official capacity as Secretary of the Interior, United States Department of the Interior, United States National Park Service ("NPS"), and Jonathan Jarvis, acting in his official capacity as Director of the National Park Service (collectively, "Defendants") recite and agree to the following:
RECITALS
(1) In 1962, the United States Congress("Congress") authorized the Point Reyes National Seashore ("Point Reyes") as a unit of the United States National Park System. Act of Sept. 13, 1962, Pub. L. No. 87-657, 76 Stat. 538, 538. Drakes Estero constitutes nearly 2,500 acres of Point Reyes.
(2) In 2008, NPS issued a Special Use Permit ("2008 SUP"), attached as Exhibit 1, to DBOC.
(3) On December 3, 2012, Plaintiffs filed this action for declaratory and injunctive relief against Defendants.
(4) On December 21, 2012, Plaintiffs filed their first amended complaint far declaratory and injunctive relief:
(5) On July 31, 2014, DBOC terminated its retail and cannery operations at the onshore property adjacent to Drakes Estero. Plaintiffs have removed mobile trailers, shellfish bags, tubes, spacers, wires, and oyster shells from that location, and Defendants are not requesting that Plaintiffs remove any additional property from that onshore location.
(6) Defendants represent that the NPS remains committed to providing relocation benefits to qualified employees and their families who live on the onshore property adjacent to Drakes Estero, and will be working with their legal representatives, such as Legal Aid of Marin, or directly with those employees that do not have representation.
(7) Moreover, the Parties recognize, and by entering this Settlement Agreement and [Proposed] Consent Decree ("Consent Decree") this Court finds, that this Consent Decree has been negotiated by the Parties in good faith, will avoid litigation between the Parties, and is fair, reasonable, and in the public interest.
CONSENT DECREE
Therefore, with the consent of the Parties, it is hereby ADJUDGED, ORDERED, and DECREED as follows:
1. Retention of Jurisdiction. Plaintiffs and Defendants (individually, a "Party;" collectively, the "Parties") intend that this Consent Decree shall be approved by this Court and entered as a Consent Decree. The Court has jurisdiction over the subject matter of this action, pursuant to 28 U.S.C. § 1331, and the Parties. The Court shall retain exclusive jurisdiction over this Consent Decree for the purpose of resolving disputes arising under this Consent Decree, entering orders modifying this Consent Decree, or effectuating or enforcing compliance with the terms of this Consent Decree. The Parties agree that this Court shall have exclusive jurisdiction to hear and resolve any disputes between the Parties over the implementation of the terms of this Consent Decree. Venue lies in this District pursuant to 28 U.S.C. § 1391 because a Defendant is an officer of or employee of the United States and the violations alleged in the First Amended Complaint are alleged to have occurred, and Plaintiffs conduct business, in this District. For purposes of this Consent Decree, or any action to enforce this Consent Decree, the Parties consent to the Court's jurisdiction and to venue in this District.
2. Applicability.
a. The obligations of this Consent Decree apply to and are binding upon the Defendants, and upon Plaintiffs and any assigns, corporate successors, or other entities or persons otherwise bound by law. If at any time before midnight on December 31, 2014, DBOC assigns or transfers any right or obligation under this Consent Decree to any third party, Plaintiffs shall provide assignee or transferee with a copy of this Consent Decree no later than the date the assignment or transfer becomes effective, and shall within 2 days after the date the assignment or transfer becomes effective provide Defendants with notice of the assignment or transfer.
b. Plaintiffs and Defendants shall provide a copy of this Consent Decree to all their respective officers, managers, and agents whose duties might reasonably include compliance with any provision of this Consent Decree, as well as to any contractor retained to perform work required under this Consent Decree.
Plaintiffs and Defendants shall condition any such contract upon performance of the work in conformity with the terms of this Consent Decree.
c. In any action to enforce this Consent Decree, Plaintiffs and Defendants shall not raise as a defense the failure by any of its officers, directors, employees, agents, or contractors to take any actions necessary to comply with the provisions of this Consent Decree.
3. Terms of Agreement and Compliance Requirements. The Parties have entered into settlement negotiations designed to amicably resolve this dispute, and any future disputes, between the Parties regarding commercial shellfish operations in Drakes Estero, and have agreed to settle these disputes by entering into this agreement, with each Party to bear its own costs, attorney fees, and litigation expenses:
a. Identification of Oyster Racks and Initial Removal of Onshore Property. Immediately upon the Parties' execution of this Settlement Agreement and [Proposed] Consent Decree, and without requiring the Court's entry of this Consent Decree, the Parties agree that:
i. Plaintiffs shall provide a map or aerial photograph to NPS showing the location of all oyster racks in the Estero, and identifying dilapidated or currently unused oyster racks and related offshore operational infrastructure (including anchors, lines, buoys and floating equipment) DBOC has used in its operations; and
ii. NPS may remove all setting tanks, the structure known as the "punching shed," the structure known as the "stringing shed," and/or DBOC's office warehouse; and that NPS shall provide Plaintiffs with a minimum of 24 hours advance notice by telephone or electronic email according to the provisions set forth in Paragraph 14 (Notice and Correspondence) before undertaking any such removal action.
b. Concurrent Activities for Plaintiffs' Removal of Shellfish and Defendants' Removal of Offshore Property. Immediately upon the Court's entry of this Consent Decree, the Parties agree that:
i. Plaintiffs shall provide an updated map or aerial photograph to NPS identifying dilapidated or currently unused oyster racks and offshore operational infrastructure, and NPS may immediately commence actions to dismantle and/or remove such items and any items previously identified pursuant to Paragraph 3(a);
ii. NPS shall have access to all oyster racks and operational infrastructure in Drakes Estero for purposes of inspection and information-gathering and Plaintiffs shall cooperate with NPS regarding reasonable requests for information regarding the location of oyster racks, offshore operational infrastructure, and/or other information relevant to NPS's activities made pursuant to this Paragraph to remove items from, or to clean up, the Estero;
iii. Every month until December 31, 2014, Plaintiffs shall notify NPS of Plaintiffs' progress in removing shellfish from the Estero that month, and which oyster racks previously in use have been vacated or are no longer in use. Of the 95 oyster racks believed to be present in Drakes Estero as of the date of the Parties' execution of this Settlement Agreement and [Proposed] Consent Decree, Plaintiffs shall vacate one quarter of such oyster racks every month, with the first quarter due to be vacated by September 30, 2014. As oyster racks and any offshore operational infrastructure are vacated or no longer used by Plaintiffs pursuant to this Paragraph 3(b), NPS may commence any actions to dismantle and/or remove such items;
iv. Consistent with applicable law, NPS may commence, in Drakes Estero, surveys, information-gathering, and/or the removal of marine debris and invasive species. Unless otherwise agreed to in writing by the Parties, said "marine debris" excludes Hazardous Materials as defined by paragraph 1(h) of the 2008 SUP;
v. Plaintiffs shall remove bags of manila clams lacking harvestable manila clams from areas under cultivation in Drakes Estero (without regard to year of planting) by October 1, 2014. Not later than November 1, 2014, Plaintiffs shall remove all oysters under cultivation that they planted in Drakes Estero after November 30, 2012. On a monthly basis, Plaintiffs shall provide inventories or reports on the quantities of oysters and manila clams removed from the Estero. All manila clams and oysters removed during this time shall be transported outside the boundaries of Point Reyes and may be disposed of according to applicable law;
vi. Plaintiffs shall remove shellfish under cultivation that they planted in Drakes Estero prior to November 30, 2012, and may continue to do so until midnight on December 31, 2014. All such shellfish removed during this time shall be transported outside the boundaries of Point Reyes and may be sold. Before midnight on December 31, 2014, Defendants shall not remove any harvestable shellfish from areas under cultivation that Plaintiffs may be able to sell. During this time, no shellfish that were not present in Point Reyes prior to June 30, 2014, may be planted, seeded, or placed in Drakes Estero; however, pacific oysters placed in Drakes Estero prior to November 30, 2012, and which are currently on strings or tubes, may be placed in bags for beach hardening prior to removal from Drakes Estero;
vii. The foregoing activities in this Paragraph 3(b) may proceed concurrently, and each Party shall use its best efforts to avoid impeding or interfering with these activities taken by the other Party; and
viii. Not later than midnight on December 31, 2014, Plaintiffs shall permanently cease all shellfish removal activities in, and shall vacate, Drakes Estero and the adjacent onshore areas previously occupied by DBOC. Nothing in this Consent Decree shall prevent Plaintiff Kevin Lunny or any shareholder, director, officer, manager, agent, or employee of DBOC, current or former, from exercising any right or privilege related to Point Reyes that he or she may have as a member of the public or, except as provided in Paragraph 3(h), in association with any group or entity other than Plaintiffs.
c. Additional Conditions and Authorizations for Plaintiffs' Shellfish Removal Activities. The Parties agree that Plaintiffs' shellfish removal activities pursuant to Paragraph 3(b) are subject to the following additional conditions and authorizations:
i. Plaintiffs' onshore activities shall be limited to those facilities, equipment, and activities reasonably necessary to accomplish the purpose of removing shellfish from Drakes Estero in approximately the same manner in which Plaintiffs have been harvesting shellfish to date; and
ii. The onshore facilities and equipment Plaintiffs may use to remove shellfish include but are not limited to the dock, conveyor belt, washing system, walk-in refrigerator, pneumatic system, onsite power, and the running water, bathrooms, septic system, telephone, and management space in the oyster shack. Defendants shall not remove these facilities and equipment before midnight on December 31, 2014. Nothing in this Paragraph shall limit the Defendants' right to remove the onshore property identified in Paragraph 3(a).
iii. Not later than the date specified in Paragraph 3(b)(viii), Plaintiffs may remove any personal property used for the removal of shellfish as provided in Paragraphs 3(b)and 3(c).
iv. Nothing in this Consent Decree is intended to preclude Plaintiffs, while removing shellfish in accordance with Paragraphs 3(b) and 3(c), from taking samples, and otherwise complying with requirements of the California Department of Public Health, the Food and Drug Administration, and any other agency with jurisdiction over the safety and quality of oysters and clams that may be consumed by the public.
d. Defendants' Additional Removal Activities and Plaintiffs' Relinquishment of Related Obligations and Rights. The Parties agree that:
i. As specified in Paragraphs 3(a) and (b), Defendants may remove and dispose of any property, valuable or otherwise, remaining on the onshore property or adjacent to or in the waters of Drakes Estero, including but not limited to oyster racks, shellfish, and apparatus or facilities not. used.to remove shellfish. After December 31, 2014, Defendants may remove all remaining offshore and onshore property. Defendants will undertake such removal and disposal actions at their sole expense and cost, will not seek reimbursement for said costs from Plaintiffs, and will exercise their discretion as to the timing of the removal of said property and its disposal. Plaintiffs agree to relinquish and will not assert any claims, whether administrative, in law, or in equity, relating to the removal or disposal of said property;
ii. Except as provided in this Consent Decree, Plaintiffs shall have no obligation to remove, and after December 31, 2014, will have no authority to remove, any onshore or offshore structures or apparatus, oyster racks, shellfish, equipment used for growing or harvesting shellfish, shells, trash, dirt, or Didemnum or other biological material in or from Drakes Estero or the onshore area adjacent to Drakes Estero. Except as provided in this Consent Decree, Plaintiffs shall have no obligation to grade, re-vegetate, sample, or analyze, and after December 31, 2014, will have no authority to, grade, re-vegetate, sample, or analyze any land or water in or from Drakes Estero or the onshore area adjacent to Drakes Estero; and
iii. After the Parties' execution of this Settlement Agreement and [Proposed] Consent Decree, or at some other time as the Parties may agree in writing, NPS will transmit to the California Coastal Commission a letter referencing the foregoing terms of this Paragraph 3(d) and expressing NPS's intent to undertake the removal of facilities set forth herein.
e. Plaintiffs' Covenant Not to Conduct Certain Activities within Point Reyes. Immediately upon the Parties' execution of this Settlement Agreement and [Proposed] Consent Decree, and without requiring the Court's entry of this Consent Decree, the Parties agree that:
i. Plaintiffs shall not conduct retail sales or canning on lands or waters within Point Reyes; and
ii. No shellfish shall be transferred to any customer, retail or wholesale, within Point Reyes.
f. Plaintiffs' Cessation of, and Relinquishment of Right to, Remove Shellfish. Immediately upon the Court's entry of this Consent Decree, Plaintiffs, and any of their assigns and corporate successors, shall relinquish any and all asserted right to conduct commercial shellfish operations in Point Reyes, and further covenant not to operate, and not to accept an authorization to operate, a commercial shellfish operation in Drakes Estero except as provided in this Consent Decree. Not later than midnight on December 31, 2014, Plaintiffs shall permanently cease shellfish removal in Drakes Estero, and vacate Drakes Estero and the adjacent onshore area previously occupied by DBOC. This vacating and relinquishment includes any claim by DBOC, its assigns or corporate successors, to any property, tangible or otherwise, remaining in Point Reyes.
g. Full Settlement; Plaintiffs' Waiver, Release, and Covenant Not to Sue; and Defendants' Covenant Not to Sue. This Consent Decree constitutes a complete and final settlement and is in full satisfaction of all claims asserted, or that could be asserted, by Plaintiffs against Defendants in this action or in any federal court, state court, or administrative agency. Upon the entry of this Consent Decree, the Parties agree that:
1. This Consent Decree shall constitute a stipulation of dismissal with prejudice of all claims alleged in Plaintiffs' First Amended Complaint, which include but are not limited to (1) violations of the National Environmental Policy Act ("NEPA") and the Administrative Procedure Act ("APA"); (2) violation of the Data Quality Act ("DQA") and the APA; (3) violations of the APA and Section 124 of the Department of the Interior, Environment and Related Agencies Appropriations Act for Fiscal Year 2010(Pub. L. No. 111-88);(4) violations of the Due Process Clause of the Fifth Amendment to the U.S. Constitution;(5) violations of the Takings Clause of the Fifth Amendment to the U.S. Constitution; and (6) alleged unlawful interference with agency functions.
ii. Plaintiffs further waive, release, and covenant not to sue in any administrative or judicial forum on any and all claims, causes of action, obligations, and/or liabilities of any kind or nature whatsoever, known or unknown, regardless of legal theory, for any damages or any equitable or specific relief, that are based on the alleged harms or violations occurring before the entry of this Consent Decree and that relate to the United States' management, oversight, or administration of Point Reyes and/or Drakes Estero, including but not limited to the property upon which DBOC operates;
iii. California Civil Code Section 1542 provides: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him. or her must have materially affected his or her settlement with the debtor." Plaintiffs having been apprised of the statutory language of Civil Code Section. 1542 by their attorney(s), and fully understanding the same, nevertheless elect to waive the benefits of any and all rights they may have pursuant to the provision of that statute and any similar provision of federal law. Plaintiffs understand that, if the facts concerning Plaintiffs' alleged injuries and any alleged liability of the United States for damages pertaining thereto are found hereinafter to be other than or different from the facts now believed by them to be true, the Consent Decree shall be and remain effective notwithstanding such material difference;
iv. For the claims specifically identified in this Paragraph 3(g)(iv), Defendants covenant not to sue or take administrative action against Plaintiffs or any of their shareholders, directors, officers, employees, agents, corporate successors, or assigns, arising from actions occurring prior to the Parties' execution of the Settlement Agreement and.[Proposed] Consent Decree. These specific claims are: (1) trespass; (2) ejectment; (3) unpaid rent; (4) claims predicated on sound created by DBOC's commercial shellfish operations; (5) claims predicated on breaches or violations of the 2008 SUP or National Park Service regulations with regard to 2008 SUP paragraph 2 (General Conditions), paragraph 3(Use of Premises), paragraph 4 (Special Permit Conditions), paragraph 6 (Constructions of Improvements or Alterations), paragraph 7(Treatment of Refuse), paragraph 8 (Pesticide or Herbicide Use), paragraph 9(Fire Prevention and Suppression), paragraph 10(Excavation., Site and Ground Disturbance), paragraph 11 (Nonpoint Source Pollution), paragraph 12 (Tree and Vegetation Removal), paragraph 13 (Wildlife Protection), paragraph 15 (Insurance), paragraph 18 with respect to Rents(excluding Taxes and Assessments), paragraph 19 (Cyclic Maintenance), paragraph 20 (Compliance with Applicable Laws: NEPA, NHPA), paragraph 22 (Penalty), paragraph 23 (Surrender and Vacate the Premises, Restoration), Exhibit C (Drakes Estero Aquaculture and Harbor Seal Protection Protocol), manila clams, oysters, Didemnum, eelgrass, harbor seals, and/or marine debris (as defined in Paragraph 3(b)(iv));(6) taking action within Point Reyes without a permit or other authorization required by NPS regulations; and/or(7) violations of the National Park Service Organic Act, the Point Reyes National Seashore Act, or the Wilderness Act;
v. For the claims specifically identified in this Paragraph 3(g)(v), Defendants covenant not to sue or take administrative action against Plaintiffs or any of their shareholders, directors, officers, employees, agents, corporate successors, or assigns, arising from actions occurring after the Parties' execution of the Settlement Agreement and [Proposed] Consent Decree and before midnight on December 31, 2014. These specific claims are: (1) trespass; (2) ejectment; (3) unpaid rent; (4) claims predicated on sound created by DBOC's activities under Paragraph 3(a),(b), and (c); and/or(5) claims predicated on the presence of manila clams, oysters, or Didemnum in Point Reyes;
vi. Defendants covenant not to sue Plaintiffs for claims predicated on breaches or violation of the 2008 SUP paragraph 16 (Indemnity) for any claims that arise for events occurring after December 31, 2014;
vii. Notwithstanding any provision of this Consent Decree, nothing in this Decree releases any Party from any liability arising under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq.
h. Commitment to Effectuate Settlement. Within 7 business days of the Parties' execution of this Settlement Agreement and [Proposed] Consent Decree, the Parties shall jointly move the Court for the entry of this Consent Decree. The Parties agree that Plaintiffs shall not bring, join in, or financially support any other party in bringing or joining in any judicial or administrative proceeding that concerns the Secretary's memorandum, and/or NPS's written notification, dated November 29, 2012, and/or any actions contemplated by Paragraphs 3(a), 3(b), and/or 3(d). Nothing in this provision shall prevent the Parties from seeking judicial modification or enforcement of this Consent Decree in accordance with the terms of the Consent Decree.
i. No Limitation on Applicable Federal Authority and Notice Requirements. Nothing in this Settlement Agreement and [Proposed] Consent Decree, regardless whether the Court has entered the Consent Decree, shall limit the authority of Defendants to inspect, oversee, or administer Point Reyes, including DBOC's activities therein, pursuant to federal law, except that Plaintiffs may enforce the terms of this Consent Decree. The Parties, however, agree that, prior to midnight on December 31, 2014:
i. NPS shall provide Plaintiffs 24 hours' advance notice, by e-mail, of any removal of onshore infrastructure;
ii. NPS shall provide Plaintiffs 24 hours' advance notice, by e-mail, of the use of boats by NPS or its agents in Drakes Estero;
iii. NPS shall provide Plaintiffs seven days' advance notice, by e-mail, of removal of oyster racks;
iv. Such notices included in this Paragraph 3(i) shall include the expected location and extent of the NPS activity; Any notice requirements of this Paragraph shall be sent to the persons identified in Paragraph 14 (Notice and Correspondence);
v. In response to the notices provided by Defendants under this Paragraph 3(i), Plaintiffs shall promptly inform Defendants whether Plaintiffs expect to be working in the same location.
j. Onsite Residents. Except as may be necessary to protect public health or welfare in an emergency, the Parties agree that NPS will take no action to disturb the occupancy of DBOC employees and their families currently residing in housing located on the onshore property adjacent to Drakes Estero. This limitation shall remain in effect through December 31, 2014, and for not less than 90 days thereafter. The Parties shall work together to transfer to Defendants the provision of power, water, and septic services currently provided by Plaintiffs to residents living on the onshore property adjacent to Drakes Estero. This transfer shall occur by November 15, 2014. Defendants represent that the NPS remains committed to providing these residents power, drinking water, and septic services that meet public health and safety requirements. Nothing in this Paragraph shall limit Defendants' authority to address unlawful activity occurring onsite.
k. No Effect on G Ranch. Nothing in this Consent Decree, regardless whether the Consent Decree has been entered by the Court, shall affect the terms of the Letter of Authorization issued for the G Ranch by NPS on December 23, 2013.
4. Approval and Effective Date. This Settlement Agreement and [Proposed] Consent Decree has been approved by the designated representative of the Attorney General of the United States, and by DBOC and Kevin Lunny. Except as explicitly stated otherwise herein, the terms of this Consent Decree shall become effective upon the Court's entry of this Consent Decree.
5. Settlement without Admission of Liability or Wrongdoing. This Consent Decree is the result of compromise and settlement between the Parties. It is not an admission of liability or wrongdoing by any Party, and it shall not be utilized for or admissible as precedent, evidence, or argument in any other proceeding, except as may be necessary to ensure compliance with or to carry out its terms and conditions. This Consent Decree shall not constitute an admission or evidence of any fact, wrongdoing, misconduct, or liability on the part of the Plaintiffs or the United States, including, without limitation, the Secretary, the NPS, its officers, or any other person affiliated with it, or an interpretation of any applicable provision of law.
6. Use of Agreement. This Consent Decree is for the purpose of settling the above-described disputes, and for no other. Accordingly, this Consent Decree shall not bind the Parties, nor shall it be cited or otherwise referred to, in any proceedings, whether judicial, legislative, or administrative in nature, in which the Parties or counsel for the Parties have or may acquire an interest, except as is necessary in an action to modify or enforce this Consent Decree in accordance with the terms of this Consent Decree.
7. Plaintiffs' Representations. Plaintiffs warrant and represent that they will not bring, or cause to be brought, or will file in or submit to any other court or administrative agency, any other action or suit against the United States, its officers or agencies related to the claims advanced in this action. Plaintiffs further warrant and represent that they have made no assignment or transfer of all or any part of their rights arising out of or relating to the claims asserted, or that could be asserted, in this action. Plaintiffs further warrant and represent that they have not otherwise assigned or transferred, whether by contract, operation of law, or otherwise, the corporate interests of DBOC since the filing of this lawsuit.
8. Force Majeure. The Parties recognize that the Defendants' performance under this Consent Decree is subject to fiscal and procurement laws and regulations of the United States which include, but are not limited to, the Antideficiency Act, 31 U.S.C. § 1341, et seq. A force majeure event may arise, due to circumstances outside the reasonable control of Defendants, that could delay compliance with the obligations set forth in this Consent Decree. Such force majeure events include, but are not limited to, a government shutdown, such as occurred in 2013, or catastrophic environmental events requiring immediate and/or time-consuming response by the United States. Should a delay occur due to a force majeure event, any resulting failure of Defendants to fulfill any obligations set forth herein shall not constitute a failure to comply with the terms of this Consent Decree, and any deadlines so affected shall be extended one day for each day of delay attributable to such force majeure event. As soon as possible under such circumstances, Defendants will provide Plaintiffs with notice invoking the relief provided for under this Paragraph 8, along with an explanation of the Defendants' basis for invoking this relief. Defendants shall also provide Plaintiffs with reasonable notice of the termination of the force majeure event upon which Defendants invoked this relief.
9. Dispute Resolution. Unless otherwise expressly provided for in this Consent Decree, the dispute resolution procedures of this Paragraph 9 shall be the exclusive mechanism to resolve disputes arising under or with respect to this Consent Decree. Before filing any motion to enforce the terms of this Consent Decree, the Parties shall confer about the nature of the alleged breach and how it might informally be resolved. The dispute shall be considered to have arisen when a Party provides notice by telephone or electronic mail pursuant to Paragraph 14 (Notice and Correspondence). If the Parties do not resolve their dispute, any Party may seek appropriate judicial relief from this Court; provided, however, that the Party raising the dispute simultaneously provides written notice to the other Parties pursuant to Paragraph 14 (Notice and Correspondence).
10. Applicable Law. This Consent Decree shall be governed by and construed under the laws of the United States.
11. Entire Agreement. This document constitutes a complete integration of the Consent Decree between the Parties and supersedes any and all prior oral or written representations, understandings or agreements among or between them. No modification to this Consent Decree shall be valid unless written and executed by all Parties; and, to the extent required by law, approved by the Court.
12. Mutual Drafting. The Parties agree that this Consent Decree was jointly drafted by them. Accordingly, the Parties agree that any and all rules of construction that ambiguity is construed against the drafting Party shall be inapplicable in any dispute concerning the terms, meaning, or interpretation of this Consent Decree.
13. No Third Party Beneficiaries. This Consent Decree is binding upon and shall inure to the benefit of DBOC, Mr. Lunny, and Defendants. This Consent Decree is not intended to and shall not be interpreted in a manner so as to confer rights on persons or entities who are not Parties hereto, or to create intended or expected third party status on any such non-party.
14. Notice and Correspondence. Unless explicitly provided otherwise herein, any notice, including correspondence, required with respect to this Consent Decree, shall be in writing and sent by U.S. Mail, Federal Express, or courier, and in addition by e-mail, as follows.
Notice to Plaintiffs shall be sent to:
Lawrence S. Bazel and Peter S. Prows
Briscoe Nester & Bazel LLP
155 Sansome St, 7th Floor
San Francisco CA 94104
415 402 2700
Ibaze@briscoelaw.net
pprow@briscoelaw.net
Drakes Bay Oyster Company and Kevin Lunny
P.O. Box 730
Nicasio CA 94946
kevin@drakesbayoyster.com
Notice to Defendants shall be sent to:
Cicely Muldoon, Superintendent
Point Reyes National Seashore
1 Bear Valley Road
Point Reyes Station, CA 94956
415-464-5101
Cicely Muldoon@nps.gov
Barbara Goodyear
Field Solicitor
U.S. Department of the Interior
Solicitor's Office
333 Bush Street, Suite 775
San Francisco, CA 94104
415-296-3380
Barbara. Goodyear@sol.doi.gov
Stephen M. Macfarlane
U.S. Department of Justice
Environment and Natural Resources Division
501 I Street, Suite 9-700
Sacramento, CA 95814
916-930-2204
Stephez.Macfarlane@usdoj.gov
Michael T. Pyle
Assistant United States Attorney
150 Almaden Blvd., Suite 900
San Jose, CA 95113
408-535-5087
Michael.T.Pyle@usdoj.gov
For those notice provisions contained in this Consent Decree which allow for notice to be provided by telephonic or electronic means, such notice shall be provided to Plaintiffs at the telephone numbers and e-mail addresses identified above, and/or to Defendants at the telephone numbers and e-mail addresses identified above.
15. Counterparts. This Consent Decree may be executed in any number of counterparts, each of which shall be deemed to constitute an original, and all of which, taken together, shall constitute one and the same document. The execution of one counterpart by any Party shall have the same force and effect as if that Party had signed all other counterparts.
16. Consistency with other Law. The Parties agree that the specific procedures required and authorizations provided by this Consent Decree, and in particular the provisions of Paragraph 3(b), are not in contravention of NEPA, the APA, the Endangered Species Act, or any other federal or state law or regulation, either substantive or procedural. No provision of this Consent Decree shall be interpreted as, or constitute a commitment or requirement that Defendants take actions in contravention of NEPA, the APA, the Endangered Species Act, or any other federal or state law or regulation, either substantive or procedural. Plaintiffs recognize that Defendants have asserted that no provision of this Consent Decree shall be interpreted as, or constitute a commitment or requirement that Defendants obligate or pay funds in violation of the Antideficiency Act, 31 U.S.C. §1341, or any other law or regulation.
17. No Restriction of Federal Authority. Nothing in this Consent Decree shall be construed to deprive any federal official of the authority to revise, amend, or promulgate regulations. Nothing in this Consent Decree shall be deemed to limit the authority of the executive branch to make recommendations to Congress an any particular piece of legislation.
18. Representative Authority. Counsel for Plaintiffs represents that he or she has been and is authorized to enter into this Consent Decree on behalf of DBOC and. Mr. Lunny. Counsel for the Defendants represent that he or she has been and is authorized to enter into this Consent Decree on behalf of the United States.
19. Final Judgment. Upon approval and entry of this Consent Decree by the Court, this Consent Decree shall constitute a final judgment of the Court under Rules 54 and 58 of the Federal Rules of Civil. Procedure.
FOR PLAINTIFFS:
LAWRENCE S. BAZEL
PETER S. PROWS
BRISCOE NESTER & BAZEL LLP
Counsel for Plaintiffs DRAKES BAY OYSTER
COMPANY and KEVIN LUNNY
FOR DEFENDANTS:
MELINDA L. HAAG
United States Attorney
ALEX TSE
Chief, Civil Division
MICHAEL T. PYLE
Assistant United States Attorney
SAM HIRSCH
Acing Assistant Attorney General
Environment and Natural Resources Division
STEPHEN M. MacFARLANE, Senior Attorney
E. BARRETT ATWOOD, Trial Attorney
JOSEPH T. MATHEWS, Trial Attorney
Environment and Natural Resources Division
United States Department of Justice
ORDER APPROVING CONSENT DECREE
THE COURT APPROVES THE TERMS OF THIS SETTLEMENT AGREEMENT AND CONSENT DECREE.
IT IS SO ORDERED.
Exhibit 1 to Settlement Agreement and [Proposed] Consent Decree
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
