American Whitewater v. Electron Hydro, LLC

The Honorable John C. Coughenour

UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON SEATTLE DIVISION AMERICAN WHITEWATER et al., ) No. 2:16-cv-00047-JCC ) 11 Plaintiffs, ) THIS DOCUMENT RELATES TO: ) C16-cv-47-JCC 12 vs. ) ) PARTIES’ STIPULATION AND ELECTRON HYDRO, LLC, et al., ) [PROPOSED] ORDER RE ) SETTLEMENT AND DISMISSAL 14 Defendants. ) ) __________________________________________) 1 Plaintiffs American Whitewater, et al. and Defendants Electron Hydro, LLC, et al. hereby respectfully file this stipulation and proposed order to voluntarily dismiss this case pursuant to FED. R. CIV. P. 41(a)(2).

4 Whereas, Plaintiffs filed this case on January 12, 2016, alleging that Defendants had violated and continue to violate Section 9 of the Endangered Species Act (“ESA”), 16 U.S.C. § 6 1538, by causing “take” of ESA-listed Chinook salmon, steelhead trout, and bull trout by operations of the Electron Hydroelectric Project on the Puyallup River in Washington (Dkt. #1); 8 Whereas, Plaintiffs alleged that to lawfully operate the project, Defendants are required to obtain incidental take permits under Section 10(a)(1)(B) of the ESA, 16 U.S.C. § 1539(a)(1)(B).

10 (Dkt. #1); 11 Whereas, in their original and operative pleadings (Dkt. #30), Plaintiffs sought and seek as relief, among other things, that the Court order Defendants to cease diverting water and fish from the Puyallup River in the period before Defendants obtain incidental take permits under Section 10(a)(1)(B) of the ESA from the National Marine Fisheries Service (“NMFS”) and from the U.S. Fish and Wildlife Service (“USFWS”); 16 Whereas, on June 18, 2021, upon motions for preliminary relief, the Court ordered that Defendants shall not open the project intake and divert water or fish in the period before they obtain incidental take permits under Section 10(a)(1) of the ESA from NMFS and USFWS (Dkt.

19 #58); 20 Accordingly, Plaintiffs and Defendants hereby agree and stipulate that: 1. Defendants shall not open the project intake and divert water or fish from the Puyallup River before they obtain from NMFS and USFWS incidental take permits under Section 10(a)(1) of the ESA that address effects of the actions on Chinook, steelhead trout, and bull trout; 2. Defendants shall provide Plaintiffs with notice of their submission of any final application to NMFS and/or USFWS, and any proposed Habitat Conservation Plan and supporting materials, for permits under Section 10(a)(1) of the ESA; 3. Defendants shall notify Plaintiffs within five (5) days of the receipt of any permits under Section 10(a)(1) of the ESA from NMFS and USFWS; 4. Defendants shall notify Plaintiffs seven (7) days before they open the intake; 5. Defendants shall not perform in-water work at the headworks site at the project without agency permits or other authority to do so; 6. Defendants shall pay Plaintiffs $225,000 in order to satisfy any and all claims for attorneys’ fees, costs, or other expenses that might be brought and may be available to Plaintiffs in this case. Defendants’ agreement to pay Plaintiffs that sum does not in any way constitute any admission by Defendants as to any fact alleged or any liability for any claim or claims alleged in this case. Defendants shall pay Plaintiffs that sum within 45 days of a court order dismissing this case.

12 7. The Court shall dismiss this case with prejudice but retain jurisdiction to enforce the terms of the parties’ stipulation. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 381 (1994).

14 Date: March 2, 2022. Respectfully submitted, /s/ Peter M. K. Frost 16 Peter M. K. Frost, pro hac vice Western Environmental Law Center 17 120 Shelton McMurphey Blvd., Suite 340 Eugene, Oregon 97401 18 541-359-3238 [email protected] /s/ Andrew M. Hawley 20 Andrew M. Hawley, WSB #53052 Western Environmental Law Center 21 1402 3rd Ave., Suite 1022 Seattle, Washington 98101 22 206-487-7250 [email protected] Attorneys for Plaintiffs /s/ Svend A. Brandt-Erichsen 26 Svend A. Brandt-Erichsen, WSBA # 23923 NOSSAMAN LLP Second Avenue, Suite 1200 1 Seattle, Washington 98104 Tel: (206) 395-7630 2 [email protected] 3 Attorney for Defendants Pursuant to the stipulation of the parties, IT IS SO ORDERED.

7 DATED this 25th day of March 2022.

A John C. Coughenour UNITED STATES DISTRICT JUDGE