Free Stipulation - District Court of California - California

Case 3:07-cv-04771-EDL

Document 83

Filed 12/19/2007

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ROBERT L. FALK (SBN 142007) ROBIN S. STAFFORD (SBN 200950) SARAH SCHINDLER (SBN 236414) MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 Email: [email protected] Email: [email protected] Email: [email protected] JOEL R. REYNOLDS (SBN 85276) CARA A. HOROWITZ (SBN 220701) NATURAL RESOURCES DEFENSE COUNCIL, INC. 1314 Second Street Santa Monica, CA 90401 Telephone: (310) 434-2300 Facsimile: (310) 434-2399 Attorneys for Plaintiffs NATURAL RESOURCES DEFENSE COUNCIL, INC.; INTERNATIONAL FUND FOR ANIMAL WELFARE; THE HUMANE SOCIETY OF THE UNITED STATES; CETACEAN SOCIETY INTERNATIONAL; LEAGUE FOR COASTAL PROTECTION; OCEAN FUTURES SOCIETY; JEAN-MICHEL COUSTEAU UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA NATURAL RESOURCES DEFENSE COUNCIL, INC.; INTERNATIONAL FUND FOR ANIMAL WELFARE; THE HUMANE SOCIETY OF THE UNITED STATES; CETACEAN SOCIETY INTERNATIONAL; LEAGUE FOR COASTAL PROTECTION; OCEAN FUTURES SOCIETY; JEAN-MICHEL COUSTEAU, Plaintiffs, v. CARLOS M. GUTIERREZ, SECRETARY OF THE UNITED STATES DEPARTMENT OF COMMERCE; NATIONAL MARINE FISHERIES SERVICE; WILLIAM HOGARTH, ASSISTANT ADMINISTRATOR FOR FISHERIES OF THE NATIONAL OCEANOGRAPHIC AND ATMOSPHERIC ADMINISTRATION; VICE ADMIRAL CONRAD C. LAUTENBACHER, JR., ADMINISTRATOR OF THE NATIONAL OCEANOGRAPHIC AND ATMOSPHERIC ADMINISTRATION; UNITED STATES DEPARTMENT OF THE NAVY; DONALD C. WINTER, SECRETARY OF THE UNITED STATES DEPARTMENT OF THE NAVY; ADMIRAL MIKE MULLEN, CHIEF OF NAVAL OPERATIONS, Defendants. Civil Action No. 07-4771-EDL STIPULATION EXTENDING TERMS OF PRIOR STIPULATED LFA OPERATION AGREEMENT PENDING RESOLUTION OF PLAINTIFFS' PRELIMINARY INJUNCTION MOTION Judge: Hon. Elizabeth D. Laporte Ctrm: E

STIPULATION EXTENDING TERMS OF PRIOR STIPULATED LFA OPERATION AGREEMENT PENDING RESOLUTION OF PLAINTIFFS' PRELIMINARY INJUNCTION MOTION Case No. 07-4771-EDL

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Case 3:07-cv-04771-EDL

Document 83

Filed 12/19/2007

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Plaintiffs Natural Resources Defense Council, Inc., The Humane Society Of The United States, Cetacean Society International, League For Coastal Protection, Ocean Futures Society, International Fund for Animal Welfare, and Jean-Michel Cousteau (collectively, "Plaintiffs") and defendants Carlos M. Gutierrez, Secretary of the United States Department of Commerce, National Marine Fisheries Service ("NMFS"), William Hogarth, Assistant Administrator for Fisheries of the National Oceanographic and Atmospheric Administration ("NOAA"), Vice Admiral Conrad C. Lautenbacher, Jr., Administrator of NOAA, United States Department of the Navy, Donald C. Winter, Secretary of the United States Department of the Navy, and Admiral Mike Mullen, Chief of Naval Operations (collectively "Defendants"), through their respective counsel of record, enter into the following stipulation with reference to the following facts. WHEREAS, A. On October 5, 2007, Plaintiffs and Defendants ("Parties") filed a Stipulation and

Proposed Order Setting Briefing Schedule and Hearing on Preliminary Injunction Motion and Stipulated Consent to Proceed Before a United States Magistrate Judge. Therein, the Parties stipulated that, "[b]eginning immediately, and until the time that the Court issues its decision on a Preliminary Injunction, but no later than January 8, 2008, Defendants shall operate Surveillance Towed Array Sensor System ("SURTASS") Low Frequency Active Sonar ("LFA") under the constraints specified in the 2003 permanent injunction, as amended in 2005, with the exception that they may operate the LFA sonar system within the coastal exclusion zones set forth in that injunction only when necessary to continue tracking an existing underwater contact detected outside the exclusion zone or when operationally necessary to detect a new underwater contact that would place the LFA sonar system within the coastal exclusion zone to maximize opportunities for detection. This exception will not apply to any routine testing or training activities. Under no circumstances will Defendants operate the LFA sonar system closer than the 12nm coastal exclusion zone specified in the new Final Rule." (Emphasis added.) B. On October 9, 2007, this Court issued an Order approving the Parties' Stipulation,

and set the hearing on Plaintiffs' Motion for Preliminary Injunction for December 18, 2007;
STIPULATION EXTENDING TERMS OF PRIOR STIPULATED LFA OPERATION AGREEMENT PENDING RESOLUTION OF PLAINTIFFS' PRELIMINARY INJUNCTION MOTION Case No.07-4771-EDL

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C.

On November 8, 2007, Parties filed a Stipulation to Permit Plaintiffs and

Defendants to Exceed the Page Limit and Modify Briefing Schedule Applicable to Defendants' Opposition to Preliminary Injunction Motion and Plaintiffs' Reply; D. On November 9, 2007, this Court issued an Order approving the Parties'

Stipulation, and continued the hearing on Plaintiffs' Motion for Preliminary Injunction to January 16, 2008 at 2:00 p.m.; Based on the foregoing, Plaintiffs and Defendants, through their counsel of record, stipulate as follows: 1. Beginning immediately, and until the time that the Court issues its decision on a

Preliminary Injunction, but no later than February 6, 2008, Defendants shall operate Surveillance Towed Array Sensor System ("SURTASS") Low Frequency Active Sonar ("LFA") under the constraints specified in the 2003 permanent injunction, as amended in 2005, with the exception that they may operate the LFA sonar system within the coastal exclusion zones set forth in that injunction only when necessary to continue tracking an existing underwater contact detected outside the exclusion zone or when operationally necessary to detect a new underwater contact that would place the LFA sonar system within the coastal exclusion zone to maximize opportunities for detection. This exception will not apply to any routine testing or training activities. Under no circumstances will Defendants operate the LFA sonar system closer than the 12nm coastal exclusion zone specified in the new Final Rule. 2. The agreement set forth in this Stipulation is intended solely to avoid unnecessary

emergency litigation and to ensure that the Court has sufficient time to render a decision on the motion for a Preliminary Injunction. This agreement does not constitute an admission of any kind, and the Parties agree that it has no bearing on the Court's balancing of the harms in deciding whether injunctive relief should issue.

STIPULATION EXTENDING TERMS OF PRIOR STIPULATED LFA OPERATION AGREEMENT PENDING RESOLUTION OF PLAINTIFFS' PRELIMINARY INJUNCTION MOTION Case No. C-07-4771-EDL

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Case 3:07-cv-04771-EDL

Document 83

Filed 12/19/2007

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Dated: December 19, 2007

MORRISON & FOERSTER LLP ROBERT L. FALK ROBIN S. STAFFORD SARAH B. SCHINDLER NATURAL RESOURCES DEFENSE COUNCIL, INC. JOEL R. REYNOLDS CARA A. HOROWITZ

By: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By: Dated: December 19, 2007

/s/ Robin S. Stafford Robin S. Stafford

Attorneys for Plaintiffs NATURAL RESOURCES DEFENSE COUNCIL, INC.; INTERNATIONAL FUND FOR ANIMAL WELFARE; THE HUMANE SOCIETY OF THE UNITED STATES; CETACEAN SOCIETY INTERNATIONAL; LEAGUE FOR COASTAL PROTECTION; OCEAN FUTURES SOCIETY; JEAN-MICHEL COUSTEAU UNITED STATES DEPARTMENT OF JUSTICE GUILLERMO A. MONTERO KRISTEN L. GUSTAFSON

/s/ Guillermo A. Montero Guillermo A. Montero

Attorneys for Defendants CARLOS M. GUTIERREZ, SECRETARY OF THE UNITED STATES DEPARTMENT OF COMMERCE; NATIONAL MARINE FISHERIES SERVICE; WILLIAM HOGARTH, ASSISTANT ADMINISTRATOR FOR FISHERIES OF THE NATIONAL OCEANOGRAPHIC AND ATMOSPHERIC ADMINISTRATION; VICE ADMIRAL CONRAD C. LAUTENBACHER, JR., ADMINISTRATOR OF THE NATIONAL OCEANOGRAPHIC AND ATMOSPHERIC ADMINISTRATION; UNITED STATES DEPARTMENT OF THE NAVY; DONALD C. WINTER, SECRETARY OF THE UNITED STATES DEPARTMENT OF THE NAVY; ADMIRAL MIKE MULLEN, CHIEF OF NAVAL OPERATIONS

STIPULATION EXTENDING TERMS OF PRIOR STIPULATED LFA OPERATION AGREEMENT PENDING RESOLUTION OF PLAINTIFFS' PRELIMINARY INJUNCTION MOTION Case No. C-07-4771-EDL

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