Western Watersheds Project v. Secretary of the United States Department of the Interior

Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PENDLETON DIVISION

WESTERN WATERSHEDS PROJECT, No. 2:21-cv-00297-HL et al., ORDER

Plaintiffs,

v.

SECRETARY OF THE UNITED STATES DEPARTMENT OF THE INTERIOR, and BUREAU OF LAND MANAGEMENT,

Defendants. ______________________________________

HALLMAN, United States Magistrate Judge: The Court has before it the Parties’ Joint Motion for Voluntary Dismissal, ECF 83, which seeks voluntary dismissal under Fed. R. Civ. P. 41(a)(2). Having reviewed and considered the motion, and good cause appearing, the Court concludes that said Joint Motion for Voluntary Dismissal is appropriate under Fed. R. Civ. P. 41(a)(2) and the facts presented. Accordingly, IT IS ORDERED that the Parties’ Joint Motion for Voluntary Dismissal is hereby GRANTED; and IT IS FURTHER ORDERED that the Settlement Agreement executed by the Parties is included as an attachment hereto, and that this Court shall have continuing jurisdiction to enforce the terms of the Settlement Agreement’s Section 1(A)(1-2 and 6) and Section 3(A)(1-3) attached hereto; and IT IS FURTHER ORDERED that this case is hereby DISMISSED. IT IS SO ORDERED. DATED this 15th day of January 2025 iA ANDREW HALLMAN United States Magistrate Judge

PAGE 2 —- ORDER

SETTLEMENTAGREEMENT Western Watersheds Projectet al.v.Secretary ofthe United States Dep’tof the Interior andBureau of Land Management, No. 2:21-cv-297-HL (D. Or.) This Settlement Agreement (“Agreement”) isenteredinto byand between Plaintiffs Western Watersheds Project, OregonNatural Desert Association, WildEarth Guardians, and Center for Biological Diversity, andDefendantsSecretary ofthe United States Department of the InteriorandBureau of Land Management(“Bureau” or “BLM”), (individually, “Party”; collectively,“the Parties”), who, by and throughtheir undersigned counsel, state asfollows: RECITALS WHEREAS, on January19, 2021, the Secretaryof the Interior issuedaNotice of Decision to issue a grazing permit toHammondRanches, Inc. (“HRI”) on four allotments partially locatedin the SteensMountain CooperativeManagement and Protection Area, insoutheasternOregon; WHEREAS, Plaintiffs filed a Complaint on February 25, 2021(ECF 1), challenging the decision and allegingthat Defendants violatedthe FederalLand Policyand Management Act (“FLPMA”), the National Environmental PolicyAct (“NEPA”), and the Steens Mountain CooperativeManagement and Protection Act(“Steens Act”)in issuing the decision; WHEREAS, the January19, 2021, decision wasrescinded onFebruary 26,2021. On December 3, 2021, theBLM issueda Notice ofIntent to prepare an environmentalimpactstatement (“EIS”)forthe Bridge Creek Area AllotmentManagement Plans; WHEREAS, the Defendants movedto dismiss Plaintiffs’ claims as mooton December 29, 2021 (ECF 21); WHEREAS, the Bureauwithdrew the challengedFinding ofNo Significant Impact onFebruary 18, 2022 (ECF 28); WHEREAS, the Bureauissued a decision to implementcertain upland restoration activities on the Mud CreekAllotment onAugust15, 2023; WHEREAS, on December 4, 2023, (ECF 55), the Court granted in part Defendants’motionto dismiss (ECF 21) as to the portion of Plaintiffs’first claim for relief concerningthe shortened protest period and as to Plaintiffs’third claim for relief, and otherwise denied Defendants’ motionto dismiss; WHEREAS, the Parties,through their authorizedrepresentatives and without any admission or final adjudication of theissues offactor law withrespect to Plaintiffs’ claims, have reached a settlement that theyconsiderto be ajust, fair, adequate, andequitable resolution of the disputes set forthinPlaintiffs’ Complaint; NOW THEREFORE, the Parties hereby agreeasfollows: Section 1.Obligationsof the Defendants. A. In consideration ofthe obligations ofPlaintiffs inSection 2 below, including the dismissalofthe claims by Plaintiffs as described in Section 2(A)(2) below, Defendants hereby agree to thefollowing terms: 1. Until the Bureau issues asigned Record of Decision (“ROD”) forthe Bridge Creek AreaAllotmentManagement Plans (“BCA AMP”) and Final EnvironmentalImpact Statement (“FEIS”), the Bureau will not authorizeany grazing onthe four BCA allotments otherthanincidental use associatedwith a two-day, twice per season, currentlyauthorized trailing permit across theKrumbo Creek Pasture of the Hammond Allotment, as needed to maintainthe grazing managementsystemin an adjacent allotment; 2. Until the Bureau issues asigned ROD on the BCA AMP and FEIS, the Bureau will notauthorizeany trailingacross the Hardie Summer Allotment or Mud Creek Allotment, or across anyBLM-administered portions of the Hammond FFR Allotment.The Bureauwill onlyauthorizeactive trailing across KrumboCreek Pasture of the HammondAllotment as described in Section 1(A)(1) above; 3. The Bureauwill consider and evaluate in detail an alternativein its BCA AMP Draft EIS (“DEIS”) thatwould restKrumbo Creek in the Krumbo CreekPasture of the Hammond Allotment untilsignificant progress is being made towards achieving applicable range health standards and guidelines identified inthe Standardsfor RangelandHealth & Guidelines forLivestockGrazing Management for Public Lands in Oregon and Washington (1997) (“OR/WA Standardsfor RangelandHealth”), see 43 C.F.R. Part 4180. In this alternative,trailing would still be authorizedacross Krumbo Creek Pastureto the extent described above in Section 1(A)(1); 4. The Bureauwill consider an alternative in its BCA AMP DEIS that wouldrest certain riparian and/or upland habitat areas ofthe Mud Creek and Hardie Summer Allotmentsuntilappropriate ecological objectives are met within the rested areas. “Appropriate ecologicalobjectives”include thoseidentified inthe OR/WA Standardsfor RangelandHealth; 5. The Bureauwill consider Plaintiffs’proposalfora Cooperative Management Agreement (“CMA”) tocooperatively restore riparianand upland habitatsin the Krumbo Creek Pasture of the Hammond Allotment, as discussed duringthe June 21, 2024 site visit heldby the Parties and described in Plaintiffs’ proposal dated and provided to BLM on September23, 2024. BLM will, tothe extent required by law, conductnew NEPA analysis onany resultant CMA agreed to by both Parties; and 6. The Bureauwill pay Plaintiffs the agreed upon amount of $60,000 identified in Section 3 ofthis Agreement for Plaintiffs’ attorney fees, costs,and expenses related tothis litigation. Section 2.Obligationsof Plaintiffs. A. In consideration ofthe obligations ofDefendantsin Section 1above and the Defendants’ commitmentto pay related attorney fees, costs and expenses providedin Section 3 below, Plaintiffs hereby agree to the following terms: 1. The Plaintiffs’ soleremedy for any dissatisfaction it may have regarding the Bureau’s BCA AMP FEIS and ROD will be topursue a new administrative or civil actionchallengingthe new decision; 2. The Plaintiffs will file onbehalf of allParties a Joint Motionfor Voluntary Dismissal ofthis actionas further describedin Section 4(E) ofthis Agreement and which requestslimited retentionof jurisdiction by the Court asfurther described inSection 4(D) of this Agreement; and 3. The Plaintiffs will notpursue a contempt ofcourtremedyin the event ofan alleged breach of this Agreement bythe Bureau. Section 3. Litigation Costs. A. Without anyadmission of fact orlaw, Defendantsagreeto settle Plaintiffs’claims for attorney fees, costs, andexpenses related tothislitigationin order toavoidthe expense, disruption and uncertainty of furtherlitigation. Insettlement of the Plaintiffs’ claims for attorney fees, costs, andexpenses, the Parties hereby agreetothe following terms: 1. Defendantswill pay $60,000 to Plaintiffs by electronic funds transfer; 2. The Plaintiffs will acceptpayment of$60,000 in full satisfaction of any and all claims for attorney fees,costs, and expenses which the Plaintiffs have incurred in this litigation through the date of dismissal oftheaction pursuant tothis Agreement.Provided, however, thatPlaintiffs are not barredby this orany other provision ofthis Agreement from seeking attorney fees, costs,and expenses incurred to enforcethe terms ofthe Agreement, subject, however, to all available defenses,includingthatPlaintiffs are not entitled to attorneyfees, costs,or expenses related toenforcement of the Agreement; 3. Plaintiffs will identify one Payee forthe payment describedin this section. Plaintiffsagree, and Payee acknowledges, that Payee is receiving the payment on behalf of PlaintiffsWesternWatersheds Project,Oregon Natural Desert Association,WildEarthGuardians, and Center for BiologicalDiversity, and Payee will distribute thesettlement proceeds as agreedamong thePlaintiffs; 4. Within 5 business daysof the date this Agreement becomeseffective asprovided in Section 4(B) below, Plaintiffs’ counsel will provide thefollowing information to counsel for Defendants: Payee Bank name Bank address Routing number Account number Name of Account Federal Taxpayer Identification Number for thePayee and for all Plaintiffs identified inSection 3(A)(3); 5. Upon receiving theinformation identified in Section 3(A)(4) above, Defendants will promptly initiate theprocessforsecuring payment of theabove referenced sum and Defendants’counsel will provide documentation (viaemail)to Plaintiffs’ counsel advising of the initiation of that processand willmake their besteffort to transmit paymentto Payee no laterthan thirty (30) days thereafter. The Defendantswill providenotice byemail to Plaintiffs’ counsel that the electronic funds transfer has beenmade. Payment ofthis sum by the Defendants will constitutesatisfaction infull of any claim forattorney fees, costs, and expenses arising out of thisaction; 6. Pursuant to31 U.S.C. § 3711; 26 U.S.C. § 6402(d); 31 C.F.R. § 285.5, 901.3, and other authorities, the United States will offset against the settlementamount any delinquent debts that Plaintiffs oweto the UnitedStates; and 7. Nothing in this Agreement will be interpreted as,or willconstitute, a requirement that Defendants are obligated to payany funds exceedingthose available, or to take any action in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any otherapplicable appropriations law. Section 4.General Provisions. A. Compromise. Itis understood and agreed that this Agreementis theresultof a good faith compromiseand settlement of disputed claims, and thatthisAgreementand the releases contained herein will notbe taken orconstruedtobe an admission of anyliability, responsibility, fault, orwrongdoing by any of the Parties hereto, each ofwhom continues to deny anddisclaimanysuch liability, responsibility,fault, orwrongdoing. Each of the Parties hereto has entered into this Agreement toavoid theexpense, disruption, and uncertaintyof furtherlitigation. ThisAgreementcontains all the terms ofagreement between theParties concerningthe Complaint and is intendedto be thefinal and sole agreement between the Parties withrespectthereto. By entering into thisAgreement,the Parties, however, do notwaive any claim or defense except those specifically provided herein. No part ofthis Agreement shall have precedential value in any litigation or in representations beforeany court orforum orin any public setting orin any future discussionwith BLM or otherfederal departments or agencies. This Agreement is executedforthe sole purpose of settling Plaintiffs’ Complaint,and nothingherein shall be construedas precedent having preclusive or persuasive effect in any other context. B. Effective Date, Modification. This Agreement will become effective when it has been signed by allParties. No modificationof thisAgreement will be valid unless expressly consentedtoin writing by allthe Parties. C. ConditionsPrecedent. Except for Plaintiffs’ obligationto filea Joint Motion for Voluntary Dismissal onbehalf of allParties, none of the Parties’ obligations will take effect untilthe district court hasissued an orderdismissingthe action inaccordancewith this Agreement’s conditions provided in Section4(E) below. D. Enforcement of Agreement: Jurisdiction. Notwithstandingthe dismissalof thisaction, the Parties hereby agreetocomply withthe terms ofthis Agreement.In theJoint Motion for Voluntary Dismissalcontemplatedinthis Agreement,the Parties will request that the Court retainjurisdiction to overseecompliance with thetermsin Section 1(A)(1-2 and6) and Section3(A)(1-3), and to resolve any motions to modifysuch terms.Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994). Either partymay filea motion to enforce theterms of those paragraphs, or vacate the dismissalof thiscaseand to reinstate the litigation. The Partiesagreethat contempt of court is not an availableremedy for any violation ofthis Agreement, and theParties therefore knowingly waive any rightthatthey might have to seek an order of contempt for anysuch violation. Plaintiffs’ soleremedy for any dissatisfaction itmay haveregardingtheBureau’s BCA AMP FEIS and ROD will beto pursue a new administrative or civil action challenging the newdecision. E. Dismissal ofAction. Plaintiffs will file on behalfof all Partiesa Joint Motion for Voluntary Dismissal of this action within fifteen (15) days ofthe EffectiveDate of this Agreement. The Partiesagreethatthis Agreement should beattached to the Joint Motion for Voluntary Dismissalandthatthe Joint Motionfor VoluntaryDismissal will seek for the Court to retain ancillary jurisdiction to enforce any breach of this Agreement in accordancewith the enforcement provisions provided in Section 4(D) above. In the eventthatthe Court does not retainancillary jurisdiction, the Agreement will be void and theParties willretain all their respectiverights,including theright to seek appealfromthe Court’s final order orjudgment. F. Opportunityto Confer with Counsel.Each Partyrepresents that theirrespective attorneys have fully advised themconcerning their rights and obligations with respect tothe execution ofthis Agreement andthat each Party fully understandsthe same. G. Warranty ofAuthority. The undersigned representatives ofeach Party certify that they are fully authorized bythe Party orParties theyrepresenttoagreeto theterms and conditions of this Agreement and dohereby agree to theterms herein. Further, each Party, by and through itsundersigned representative,represents and warrants that it has the legal power and authorityto enter into thisAgreementand bind itself tothe terms and conditions containedin this Agreement. H. Counterparts. The Agreementmaybe executedin counterparts by the Parties named herein,andall such counterparts once so executed willtogether be deemed to constitute one final Agreement, asif one document has beensigned by all Parties hereto; andeach such counterpart, upon executionand delivery,will be deemed a complete original, binding on the Parties tothe Agreement. Facsimile or scanned signaturessubmitted by electronic mail will havethe same effectas an original signature in binding the Parties. I. Binding effect. The provisions of thisAgreementwill apply toand be binding upon the Parties including, but notlimitedto, their officers,directors, servants, employees, successors,and assigns. J. Notice. Any noticecalled for underthis Agreement will be provided tothe following contacts foreach oftheParties: If to Plaintiffs: Western Watersheds Project Erik Molvar, ExecutiveDirector emolvar@westernwatersheds.org Oregon Natural DesertAssociation Mark Salvo,Program Director salvo@onda.org WildEarthGuardians Chris Krupp, Public Lands Attorney ckrupp@wildearthguardians.org Center for Biological Diversity Marc Fink,Public Lands Law Center Director, Senior Attorney mfink@biologicaldiversity.org If to Defendants: Bureau of Land Management Don Rotell,Burns District Manager drotell@blm.gov Departmentof the Interior Carmen Thomas, Attorney-Advisor carmen.thomas@sol.doi.gov Department of Justice Shannon Boylan, Trial Attorney shannon.boylan@usdoj.gov

Dated: January 14, 2025.

PLAINTIFFS: aioe Park JAIMIE L. PARK (Pro Hac Vice) 9th Circuit Attorney Western Watersheds Project P.O. Box 37198 Albuquerque, NM 87110-9998 Telephone: (505) 750-0334 Of Attorneys for Plaintiffs

DEFENDANTS: SHAN NON Digitally signed by SHANNON BOYLAN BOY LA N Date: 2025.01.14 22:47:53 -05'00' SHANNON BOYLAN, Trial Attorney U.S. Department of Justice Environment and Natural Resources Div. Natural Resources Section 150 M St. NE Suite 3.1406 Washington, DC 20002 Tel: 202-598-9584 Fax: 202-305-0506 shannon.boylan@usdoj.gov Of Attorneys for Defendants