Free Stipulation and Order - District Court of California - California

Case 3:07-cv-04771-EDL

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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 AND [PROPOSED] ORDER SETTING BRIEFING SCHEDULE AND HEARING ON PRELIMINARY INJUNCTION MOTION; STIPULATED CONSENT TO PROCEED BEFORE A UNITED STATES MAGISTRATE JUDGE AS MODIFIED Judge: Hon. Elizabeth D. Laporte Ctrm: E

STIPULATION AND [PROPOSED] ORDER RE: BRIEFING SCHEDULE AND HEARING ON PRELIMINARY INJUNCTION MOTION; STIPULATED CONSENT TO PROCEED BEFORE A MAGISTRATE Case No. 07-4771-EDL sf- 2381369

Case 3:07-cv-04771-EDL

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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. Plaintiffs filed a motion for leave to file supplemental pleadings on August 15,

B.

NMFS made effective a new final rule on August 16, 2007, ("new Final Rule")

and published the new Final Rule on August 21, 2007. C. After meeting and conferring with Defendants, Plaintiffs filed a notice to withdraw

their motion for leave to file supplemental pleadings on August 28, 2007. D. E. On September 17, 2007, Plaintiffs filed their complaint in this action. On September 25, 2007, Plaintiffs and Defendants filed a joint Administrative

Motion to Relate this case (the "New Action") to Natural Resources Defense Council, et al. v. Evans, Case No. 02-03805, filed in this Court on August 7, 2002 (the "Original Action"). F. On October 2, 2007, this Court issued an Order relating the New Action to the

Original Action.

STIPULATION AND [PROPOSED] ORDER RE: BRIEFING SCHEDULE AND HEARING ON PRELIMINARY INJUNCTION MOTION; STIPULATED CONSENT TO PROCEED BEFORE A MAGISTRATE Case No.07-4771-EDL sf- 2381369

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Based on the foregoing, Plaintiffs and Defendants, through their counsel of record, stipulate as follows: 1. Injunction; 2. On November 13, 2007, Defendants shall file and serve their Opposition to On October 12, 2007, Plaintiffs shall file and serve their Motion for Preliminary

Plaintiffs' Motion for Preliminary Injunction; 3. 4. On November 20, 2007, Plaintiffs shall file and serve their Reply. The hearing on the Preliminary Injunction Motion will be scheduled for

December 11, 2007, or a date thereafter at the Court's convenience. 5. Beginning 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. 6. In accordance with the provisions of Title 28, U.S.C. Section 636(c), Federal

Rule of Civil Procedure 73, and Local General Order 44.N.1.b., the undersigned parties hereby voluntarily consent to have United States Magistrate Judge Elizabeth Laporte conduct any and all further proceedings in the New Action and order the entry of a final judgment. Appeal from

STIPULATION AND [PROPOSED] ORDER RE: BRIEFING SCHEDULE AND HEARING ON PRELIMINARY INJUNCTION MOTION; STIPULATED CONSENT TO PROCEED BEFORE A MAGISTRATE Case No. C-07-4771-EDL sf- 2381369

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the judgment, if any, shall be taken directly to the United States Court of Appeals for the Ninth Circuit. Dated: October 5, 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:

/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 Dated: October 5, 2007 UNITED STATES DEPARTMENT OF JUSTICE KRISTEN L. GUSTAFSON

By:

/s/ Kristen Gustafson Kristen Gustafson

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 AND [PROPOSED] ORDER RE: BRIEFING SCHEDULE AND HEARING ON PRELIMINARY INJUNCTION MOTION; STIPULATED CONSENT TO PROCEED BEFORE A MAGISTRATE Case No. C-07-4771-EDL sf- 2381369

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[PROPOSED] ORDER After considering the parties' stipulation, and for good cause shown, the stipulated schedule for the Preliminary Injunction Motion is adopted by this Court, which shall hear 18 at 9:00am EDL Plaintiffs' Preliminary Injunction Motion on December 11, 2007, and conduct all subsequent trial court proceedings in this action. IT IS SO ORDERED.

October 9, 2007

____________________________________ Hon. Elizabeth D. Laporte RED RDE
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