Free Stipulation and Order - District Court of California - California

Case 3:07-cv-04771-EDL

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RONALD J. TENPAS Assistant Attorney General Environment and Natural Resources Division UNITED STATES DEPARTMENT OF JUSTICE JEAN E. WILLIAMS, Chief KRISTEN L. GUSTAFSON, Senior Trial Attorney Wildlife and Marine Resources Section GUILLERMO A. MONTERO, Trial Attorney Natural Resources Section Environment & Natural Resources Division UNITED STATES DEPARTMENT OF JUSTICE Benjamin Franklin Station - P.O. Box 7369/ P.O. Box 663 Washington, D.C. 20044 (202) 305-0211 (tel.) / (202) 305-0443 (tel.) (202) 305-0275 (fax)/ (202) 305-0274 (fax) [email protected] [email protected] Counsel for Federal Defendants

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Stipulation and [Proposed] Order Amending Interim Relief and Staying Schedule NRDC v. Gutierrez, Case No. 07-4771-EDL

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.,

) ) Civ. Action No. 07-4771-EDL ) Plaintiffs, ) STIPULATED REQUEST TO AMEND ) INTERIM PRELIMINARY INJUNCTIVE v. ) RELIEF AND STAY SCHEDULE ) CARLOS GUTIERREZ, SECRETARY ) [PROPOSED] ORDER OF THE UNITED STATES ) DEPARTMENT OF COMMERCE, et al. ) ) Defendants. ) ) Judge: Hon. Elizabeth D. Laporte ) ) ) ____________________________________)

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Pursuant to the Court's February 6, 2008 Opinion and Order Granting in Part Plaintiffs' Motion for Preliminary Injunction ("Opinion and Order") and Order Referring Case for Settlement Conference, and pursuant to Magistrate Judge Spero's February 15, 2008 Settlement Conference Order, the parties, Defendants United States Navy ("Navy") and National Marine Fisheries Service ("NMFS") and the Natural Resources Defense Council, Inc. ("NRDC") on behalf of itself and other Plaintiffs, attended a settlement conference on March 26, 2008 before Magistrate Judge Spero to meet and confer on the precise terms of a preliminary injunction consistent with the Court's Opinion and Order. The parties were unable to address the full scope of a preliminary injunction at the settlement conference, but they were able to reach agreement on terms applicable to (1) the Navy's Western Pacific Operating Area and (2) a process for trying to reach agreement with respect to the two additional areas where the Navy has identified a need to operate during the potential pendency of the preliminary injunction. Accordingly, the parties stipulate as follows: 1. Neither party waives any right of appeal from the February 6, 2008 Opinion and Order, from the Order entering this Stipulation, or from any other subsequent orders that the Court may issue by entering into the meet and confer process or by submitting this Stipulation. 2. The parties agree that all negotiations leading up to this Stipulation are confidential

and that the further negotiations described in paragraph 6 below shall also be confidential. 3. The parties agree that this Stipulation shall remain in effect until the earlier of: (a) a

modification by the Court, either as the Court elects or pursuant to a noticed motion or stipulation by the parties, that this Stipulation has been superseded by subsequent relevant events or authority, including but not limited to the outcome of further negotiations described in paragraph 6 below; (b) the issuance of a mandate by a higher court which overturns this Court's Opinion and Order and vacates the injunction; or (c) a final judgment on the merits by the Court. 4. For the Western Pacific Operating Area, the parties ask the Court to continue the terms

of their Stipulated LFA Operation Agreement, filed in this case on October 5, 2007, and adopted by the Court as interim relief in its February 6 Opinion and Order, with the following amendment: In
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addition to the terms specified in the Stipulated LFA Operation Agreement, the Navy may operate Surveillance Towed Array Sensor System Low Frequency Active ("SURTASS LFA") sonar for testing, training, and military operations in such a manner that received sound pressure levels shall not exceed 180 dB at a distance less than 18 nautical miles (nm) from (a) the islands of the Luzon Strait, which include the Bashi Channel; and (b) the eastern coastlines of the islands of the Ryukyu Island Chain between the island of Kyushu, Japan and Taiwan. The following illustrative attachments are provided: Attachment 1 (large-scale graphic depicting all revised standoff distances); Attachment 2 (small-scale graphic depicting revised standoff distances for the Ryukyu Island Chain); Attachment 3 (small-scale graphic depicting revised standoff distances for the Luzon Strait); and Attachment 4 (geographic coordinates for all revised standoff distances). Except as amended herein, the parties agree that all terms of the Stipulated LFA Operation Agreement remain in full force and effect. In particular, this expansion of the Navy's ability to operate SURTASS LFA sonar is not intended as an alteration to the exception identified in paragraph (1) of the Stipulated LFA Operation Agreement, which permits the operation of the SURTASS LFA sonar system in accordance with the 12 nm coastal exclusion zone identified in NMFS's August 16, 2007 Final Rule when necessary to continue tracking an existing underwater contact or when operationally necessary to detect a new underwater contact to maximize opportunities for detection. 5. The parties agree that if the Navy wishes to seek an alteration to the agreed upon

operating areas described in paragraph 4, the parties shall engage in a meet and confer process with the assistance of a court-designated mediator. This meet and confer process shall be subject to the Opinion and Order and any subsequent relevant opinions, orders, or other applicable authority. If the meet and confer process does not yield an agreement, any party may apply to the Court for resolution of the dispute. 6. As indicated above, the parties were unable to address the full scope of a preliminary

injunction at the March 26 settlement conference, and therefore stipulate to the following process to address the two additional areas where the Navy has identified a need to operate during the potential pendency of preliminary injunctive relief:
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April 9, 2008 ­ Defendants shall send a letter to Plaintiffs by no later than 5:00 pm (PDT) containing the contents of the Navy's application for 2008-2009 Letters of Authorization in its entirety. The letter shall also be faxed to Magistrate Judge Spero's chambers at 415-522-3636. May 13, 2008 ­ Plaintiffs shall send a response to Defendants' April 9 letter to Defendants by no later than 5:00 pm (PDT). The response shall include a settlement proposal and shall also be faxed to Magistrate Judge Spero's chambers at 415-522-3636. May 23, 2008 ­ Defendants shall send a reply to Plaintiffs' May 13 response and settlement proposal to Plaintiffs by no later than 5:00 pm (PDT). This reply shall also be faxed to Magistrate Judge Spero's chambers at 415-522-3636. May 27, 2008 ­ Settlement Conference with Magistrate Judge Spero. September 1, 2008 ­ Defendants shall send a letter to Plaintiffs by no later than 5:00 pm (PDT) containing the anticipated contents of the Navy's application for 2009-2010 Letters of Authorization. The letter shall also be faxed to Magistrate Judge Spero's chambers at 415-522-3636. October 7, 2008 ­ Plaintiffs shall send a response to Defendants' September 1 letter to Defendants by no later than 5:00 pm (PDT). The response shall include a settlement proposal and shall also be faxed to Magistrate Judge Spero's chambers at 415-522-3636. October 21, 2008 ­ Defendants shall send a reply to Plaintiffs' October 7 response and settlement proposal to Plaintiffs by no later than 5:00 pm (PDT). This reply shall also be faxed to Magistrate Judge Spero's chambers at 415-522-3636. October 23, 2008 ­ Settlement Conference with Magistrate Judge Spero. The parties anticipate that the scope of the preliminary injunction resulting from the

process described immediately above will be limited to the specific geographic areas named in a confidential memorandum that the parties will file with Magistrate Judge Spero and discussed during the parties' three settlement conferences ­ the first of which was conducted on March 26, 2008, and the second two scheduled for May 27, 2008, and October 23, 2008. 8. In order to permit the parties to engage in the negotiations described in paragraph 6

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above, the parties stipulate to a seven-month extension of the schedule for all events set forth in the Court's March 6, 2008 Order Following Case Management Conference, including deadlines for submission of administrative record indices, filing of administrative records, filing of briefs, and the hearing. If, however, agreement between the parties with respect to the terms of the preliminary injunction is not reached at the May 27, 2008 settlement conference, then the parties agree to negotiate a new schedule for all such events. 9. The parties further ask that the Court, at its earliest convenience, set a case

management conference for June 2008, to follow the May 27, 2008 settlement conference with Magistrate Judge Spero. The case management conference will, if necessary, address any further scheduling requirements.

Dated: April 9, 2008

RONALD J. TENPAS Acting Assistant Attorney General United States Department of Justice Environment & Natural Resources Division JEAN E. WILLIAMS, Chief KRISTEN L. GUSTAFSON, Senior Trial Attorney Wildlife & Marine Resources Section GUILLERMO A. MONTERO, Trial Attorney Natural Resources Section United States Department of Justice Environment & Natural Resources Division Ben Franklin Station, P.O. Box 663 Washington, D.C. 20044-663 Tel. (202) 305-0211/ Tel. (202) 305-0443 Fax (202) 305-0275/ Fax (202) 305-0274 [email protected] [email protected] By: /s/ Kristen L. Gustafson Kristen L. Gustafson Counsel for Federal Defendants

25 26 27 28 Dated: April 9, 2008 MORRISON & FOERSTER LLP ROBERT L. FALK ROBIN S. STAFFORD

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425 Market Street San Francisco, CA 94105-2482 Tel. (415) 268-7000 Fax (415) 268-7522 NATURAL RESOURCES DEFENSE COUNCIL, INC. JOEL R. REYNOLDS CARA A. HOROWITZ 1314 Second Street Santa Monica, CA 90401 Tel. (310) 434-2300 Fax (310) 434-2399 /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

PURSUANT TO STIPULATION, IT IS SO ORDERED. A case management conference is scheduled for June 10, 2008 at 2:00 p.m. The parties shall file a joint case management conference statement no later than June 3, 2008. By: ____________________________________ ED ORDER IT Elizabeth D. Laporte Honorable IS SO United States Magistrate Judge te D. Lapor
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April 14 Dated: __________________, 2008.

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Attachment 1: Revised Standoff Distances for the Ryukyu Island Chain and the Luzon Strait

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DO NOT USE FOR NAVIGATION

= Coastal Standoff Range

= 200 nm

NRDC v. Gutierrez, Case No. 07-04771-EDL: Stipulation and [Proposed] Order Amending Interim Relief and Staying Schedule

Attachment 2: Revised Standoff Distances for the Ryukyu Island Chain
Case 3:07-cv-04771-EDL Document 107 Filed 04/14/2008 Page 8 of 10

DO NOT USE FOR NAVIGATION

= Coastal Standoff Range

= 100 nm

NRDC v. Gutierrez, Case No. 07-04771-EDL: Stipulation and [Proposed] Order Amending Interim Relief and Staying Schedule

Attachment 3: Revised Standoff Distances for the Luzon Strait
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DO NOT USE FOR NAVIGATION

= Coastal Standoff Range

= 100 nm

NRDC v. Gutierrez, Case No. 07-04771-EDL: Stipulation and [Proposed] Order Amending Interim Relief and Staying Schedule

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Revised 4-8-08

Attachment 4: Geographic Coordinates for Revised Standoff Distances Posit # R001 R002 R003 R004 R005 R006 R007 R008 R009 R010 R011 R012 R013 Latitude 24 29.5 N 24 15.0 N 23 42.3 N 24.22.6 N 24 25.9 N 24 29.8 N 25 44.4 N 25 35.7 N 26 03.2 N 26 37.6 N 27 06.0 N 27 27.3 N 27 57.2 N Longitude Posit # Ryukyu Island Chain 122 40.3 E R014 122 39.1 E R015 123 49.3 E R016 124 51.2 E R017 125 28.4 E R018 125 42.7 E R019 126 57.6 E R020 127 35.4 E R021 128 13.1 E R022 128 37.5 E R023 128 50.8 E R024 129 12.5 E R025 129 39.6 E R026 Latitude 27 59.1 N 28 05.7 N 28 18.5 N 28 32.9 N 28 49.1 N 28 52.4 N 28 54.8 N 29 15.2 N 29 39.3 N 29 57.1 N 30 09.4 N 30 40.0 N 30 50.2 N Longitude 130 01.8 E 130 16.3 E 130 22.4 E 130 21.5 E 129 46.2 E 129 31.0 E 129 26.9 E 129 53.1 E 130 11.9 E 130 39.4 E 131 13.8 E 131 25.9 E 131 25.0 E

Posit # L001 L002 L003 L004 L005 L006 L007 L008 L009

Latitude Longitude Posit # Latitude Luzon Strait (including Bashi Channel) 17 09.8 N 123 32.3 E L010 21 05.5 N 18 39.6 N 123 18.9 E L011 20 47.3 N 19 09.5 N 122 31.0 E L012 20 14.3 N 19 32.2 N 122 18.3 E L013 20 04.1 N 19 55.8 N 122 29.3 E L014 20 00.0 N 21 15.4 N 122 15.1 E L015 19 50.7 N 21 23.0 N 122 06.7 E L016 19 37.9 N 21 25.3 N 121 55.0 E L017 18 39.1 N 21 20.6 N 121 42.2 E

Longitude 121 35.7 E 121 28.6 E 121 27.8 E 121 37.6 E 121 50.8 E 121 51.2 E 121 12.1 E 119 58.1 E

Posit # T001 T002 T003 T004 T005

Latitude 22 04.9 N 21 33.1 N 21 28.3 N 21 26.6 N 21 39.1 N

Longitude Posit # Taiwan 119 53.0 E T006 120 22.2 E T007 120 31.6 E T008 120 56.6 E T009 121 39.6 E T010

Latitude 21 43.5 N 21 55.6 N 22 38.6 N 23 26.6 N 24 07.2 N

Longitude 121 49.9 E 121 55.5 E 122 01.9 E 122 03.2 E 122 13.8 E

NRDC v. Gutierrez, Case No. 07-04771-EDL: Stipulation and [Proposed] Order Amending Interim Relief and Staying Schedule