CAN 3:2011cv01476 opinion

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Case3:ll-cv-01476-EMC Document45 Filed01/24/12 Pagelof4

MELINDA HAAG, (CSBN 132612)

United States Attorney

JO ANN M. SWANSON (CABN 88143)

Chief, Civil Division

JUAN D. WALKER (CSBN 208008)

Assistant United States Attorney

450 Golden Gate Avenue, Box 36055
San Francisco, California 94102-3495
Telephone: (415)436-6915
Fax: (415) 436-6927
juan.walkerCfl^usdoj .gov

Attorneys for Federal Defendants

THOMAS D. ROTH (CSBN 208601)
Law Offices of Thomas D. Roth
One Market, Spear Tower, Suite 3600
San Francisco, California 94105
Telephone: (4 15) 293-7684
Facsimile: (415) 435-2086
Email: rothlawl (Sjcomcast.net

Attorneys for Plaintiff

FRIENDS OF OCEANO DUNES, INC.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

FRIENDS OF OCEANO DUNES, INC. ) Case No. C 1 1-1476 EMC

Plaintiff, ) STIPULATION AND [PROPOSED]

) ORDER REGARDING SETTLEMENT

v. )

KEN SALAZAR, et al. )

Defendants. )
)

Plaintiff FRIENDS OF OCEANO DUNES, INC. ("Plaintiff) and Defendants KEN
SALAZAR, in his official capacity as Secretary of the Interior; ROWAN GOULD, in his official
capacity as Director, U.S. Fish and Wildlife Service, U.S. DEPARTMENT OF THE INTERIOR,
and the UNITED STATES FISH AND WILDLIFE SERVICE (collectively "Defendant"), by and

STIPULATION AND [PROPOSED] ORDER
REGARDING SETTLEMENT
C 11-1476 EMC

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Case3:ll-cv-01476-EMC Document45 Filed01/24/12 Page2of4

through their undersigned counsel, hereby enter into this Stipulation and [Proposed] Order Re
Settlement and Dismissal With Prejudice (the "Stipulation") as follows:

1 . Defendant shall pay to Plaintiff the amount of twenty- five thousand five hundred
fifty-five U.S. dollars and eleven cents ($25,551.1 1) in full and complete satisfaction of
Plaintiffs claims for attorneys' fees, costs, and litigation expenses under the Freedom of
Information Act ("FOIA") in the above-captioned matter (the "Settlement Amount"). This
payment shall constitute full and final satisfaction of any and all of Plaintiff s claims for
attorneys' fees, costs, and litigation expenses in the above-captioned matter, and is inclusive of
any interest. Defendant makes no representation as to any tax consequences or liabilities Plaintiff
or its attorney may incur as a result of this settlement. Payment of this money will be made by
electronic funds transfer, and Plaintiffs counsel will provide the necessary information to
Defendant's counsel to effectuate the transfer. Defendant will make all reasonable efforts to
make payment within sixty (60) days of the date that Plaintiffs counsel provides the necessary
information for the electronic funds transfer and this Stipulation is approved by the Court,
whichever is later, but cannot guarantee payment within that time frame. If Plaintiff is not paid
within sixty (60) days of the date that Plaintiffs counsel provides the necessary information for
the electronic funds transfer and this Stipulation is approved by the Court, whichever is later,
Plaintiff may re-new his motion for attorney's fees.

2. Defendant will return Plaintiffs two uncashed checks in the amount of $1,374.40
and $2,446.60 within thirty (30) days of the date that this Stipulation is approved by the Court.

3. In consideration of the payment of the Settlement Amount and the other terms of
this Agreement, Plaintiff shall immediately upon execution of this Agreement also execute a
Stipulation of Dismissal, a copy of which is attached hereto as Exhibit A. The Stipulation of
Dismissal shall dismiss, with prejudice, all claims asserted in this action, or that could have been
asserted in this action. The fully executed Stipulation of Dismissal will be held by Defendant's
attorney and will be filed within five (5) business days of receipt by Plaintiffs attorney of the
Settlement Amount.

STIPULATION AND [PROPOSED] ORDER

REGARDING SETTLEMENT

CI 1-1476 EMC 2

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Case3:ll-cv-01476-EMC Document45 Filed01/24/12 Page3of4

4. The parties acknowledge that this Stipulation is entered into solely for the purpose
of settling and compromising any remaining claims in this action without further litigation, and it
shall not be construed as evidence or as an admission on the part of Defendant, the United States,
its agents, servants, or employees regarding any issue of law or fact, or regarding the truth or
validity of any allegation or claim raised in this action, or as evidence or as an admission by the
Defendant regarding Plaintiffs entitlement to attorneys' fees or other litigation costs under
FOIA. This Stipulation shall not be used in any manner to establish liability for fees, amounts, or
hourly rates in any other case or proceeding involving Defendant.

5. This Stipulation is binding upon and inures to the benefit of the parties hereto and
their respective successors and assigns.

6. If any provision of this Stipulation shall be held invalid, illegal, or unenforceable,
the validity, legality, and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.

7. The Court shall retain jurisdiction over the parties and the subject
matter to enforce the Stipulation.

8. This Stipulation shall constitute the entire agreement between the parties, and it is
expressly understood and agreed that this Stipulation has been freely and voluntarily entered into
by the parties hereto. The parties further acknowledge that no warranties or representations have
been made on any subject other than as set forth in this Stipulation.

9. The persons signing this Stipulation warrant and represent that they possess full
authority to bind the persons on whose behalf they are signing to the terms of the Stipulation.

10. This Stipulation may not be altered, modified or otherwise changed in any respect
except in writing, duly executed by all of the parties or their authorized representatives.

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STIPULATION AND [PROPOSED] ORDER

REGARDING SETTLEMENT

CI 1-1476 EMC 3

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Case3:ll-cv-01476-EMC Document45 Filed01/24/12 Page4of4

1 1 . This Stipulation may be executed in counterparts and is effective on the date by which
both parties' counsel have executed the Stipulation.

Dated: January 23, 2012

Respectfully Submitted,

MELINDA HAAG
United States Attorney

/s/

JUAN D. WALKER 1
Assistant United States Attorney
Attorneys for Federal Defendant

Dated: January 23, 2012

LAW OFFICES OF THOMAS D. ROTH

/s/

THOMAS D. ROTH
Attorneys for Plaintiff

[PROPOSED] ORDER

PURSUANT TO STIPULATION, IT IS SO ORDERED.

Dated: 1/24/12

'I, Juan D. Walker, hereby attest, in accordance with the Northern District of California's
General Order No. 45, Section X(B), the concurrence in the filing of this document has been
obtained from the other signatory listed on this document.

STIPULATION AND [PROPOSED] ORDER

REGARDING SETTLEMENT

CI 1-1476 EMC 4