STIPULATION AND ORDER TO FILE A FIFTH SUPPLEMENTAL COMPLAINT

LAWRENCE J. O'NEILL, Chief District Judge.

RECITALS

WHEREAS, on October 20, 2016, the Court dismissed Plaintiffs' Second Claim for Relief "on the ground that this Court lacks subject matter jurisdiction over the Second Claim for relief because certain allegations in the claim are moot and because Plaintiffs have failed to comply with the ESA's 60-day notice requirement as to any non-moot allegations," Doc. 1045 ("10/20/16 Order") at 25;

WHEREAS, the Court has not yet issued a final ruling on motions filed on June 20, 2016 by the Sacramento River Settlement Contractors and Federal Defendants to dismiss the Fifth and Sixth Claims for Relief (Doc. 1031 & 1032);

WHEREAS, on November 14, 2016, Plaintiffs mailed to Defendants Secretary of Interior and Commissioner of Bureau of Reclamation a 60-day notice ("2016 Notice Letter") asserting alleged violations of the Endangered Species Act, see Doc. 1055-11.

WHEREAS, on January 19, 2017, Plaintiffs filed a Motion for Reconsideration or, in the Alternative, Leave to Supplement the Complaint, see Doc. 1055;

WHEREAS, Plaintiffs' alternative motion for leave seeks to supplement the complaint for the limited purpose of reviving the Second Claim as it pertains to Reclamation's reliance on the 2015 reinitiated consultation, and adding an allegation pertaining to the 2016 Notice Letter, see Docs. 1055-1 (proposed Fifth Supplemental Complaint), 1055-12 (redlined version of proposed Fifth Supplemental Complaint);

WHEREAS, Plaintiffs acknowledge that the Court has ruled that the allegations in paragraphs 173 and 174 of the Fourth Supplemental Complaint pertaining to the 2005 Smelt OCAP Biological Opinion are moot, see 10/20/16 Order at 20, 25, and Plaintiffs confirm that their motion does not seek reconsideration of that ruling and that Paragraphs 173 and 174 are included in the proposed Fifth Supplemental Complaint for background informational purposes only;

WHEREAS, Defendants oppose Plaintiffs' motion for reconsideration but do not oppose Plaintiffs' motion in the alternative for leave to file a Fifth Supplemental Complaint, subject to Plaintiffs' acknowledgement and confirmation of the Court's mootness ruling regarding paragraphs 173 and 174 of the Fourth Supplemental Complaint (now paragraphs 175 and 176 of the proposed Fifth Supplemental Complaint), and subject to a reservation of Defendants' rights to assert additional affirmative defenses and/or a motion to dismiss with respect to the Second Claim;

WHEREAS, the parties agree that it would be in the interests of judicial efficiency to avoid further briefing on Plaintiffs' Motion for Reconsideration or, in the Alternative, Leave to Supplement the Complaint; and

WHEREAS, the Plaintiffs agree to withdraw their Motion for Reconsideration or, in the Alternative, Leave to Supplement the Complaint, see Doc. 1055, upon the Court's approval of the accompanying Order;

STIPULATION

NOW THEREFORE, counsel for Plaintiffs and Defendants hereby stipulate to Plaintiffs filing the proposed Fifth Supplemental Complaint and accompanying exhibits, currently found at ECF Document Nos. 1055-1 through 1055-8, without prejudice to Defendants' rights to assert additional affirmative defenses and/or a motion to dismiss with respect to the Second Claim for Relief. The Fifth Supplemental Complaint, subject to the Court's approval, shall be filed following the Court's ruling on the pending motions to dismiss, and that ruling shall be applicable to the Fifth Supplemental Complaint.

ORDER

Pursuant to the Parties' Stipulation, the Court hereby GRANTS Plaintiffs leave to file the proposed Fifth Supplemental Complaint, currently found at ECF Document Nos. 1055-1 through 1055-8.

IT IS SO ORDERED.