Legal Stout Settlement

7/28/2019 Legal Stout Settlement

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Page 1 - SETTLEMENT AGREMENT to resolve Stout v. Forest Serv., 2:09-cv-152-HA (D. Or.)

SETTLEMENT AGREMENT to resolve Stout v. Forest Serv., 2:09-cv-152-HA (D. Or.)

1. Forest Services schedule for gathering of wild horses within the Murderers Creek Wild Horse Territory (MCWHT ).

a.

The table set forth below outlines the intended schedule for gathering wild horseswithin the Murderers Creek Wild Horse Territory (MCWHT) over the course of thenext five years, starting in 2012. As the lead federal agency responsible for suchgathers, the Forest Service will strive to achieve the planned removal displayed in thetable each year, while all parties recognize that there are many factors largely if notexclusively outside the immediate control of the Forest Service that can influence thetotal number of horses removed in any given year. Such factors include, but are notlimited to: weather, wildfires, capacity at the Hines Wild Horse and Burro facility,availability of funding, and compliance with the Anti-Deficiency Act. Thus, notreaching the intended target for the number of horses to be gathered as set forth in the

table based on one or more such factors in any particular year does not constitute a breach of this agreement. Instead, if the number of wild horses gathered in any particular year falls short of the intended number, the Forest Servi ce will carry overthe amount by which it has missed the target number and add it to the intendednumber for the following year until it has made up the deficit, in an effort to reach theoverall goal of being within the range of the appropriate manageme nt level ( AML )as set forth in the applicable Murderers Creek Wild Horse Territory/HerdManagement Area Management Plan, even accounting for expected recruitment, nolater than Dec. 31, 2015. In the event the number of wild horses gathered falls morethan 20 percent short of the target number in the table for any particular year, theForest Service agrees to provide a letter to Plaintiffs to explain the reasons for anysuch shortfall, to which Plaintiffs shall have an opportunity to respond within 21days.

b. All provisions of this Agreement, except for paragraph 3, below, the obligations inwhich shall be satisfied and cease to exist upon completion of the payment called for in that paragraph in accordance with its terms, shall expire and be of no further forceor effect upon the Forest Service s documenting that the estimated wild horse

population within the MCWHT is within or below the AML for any two consecutiveyears (starting in 2013 or later), based upon a valid estimation methodology of theagencys c hoosing. Counsel for the Forest Service shall provide the documentedestimate, and the basis upon which it has been made, to counsel for the Plaintiffswithin 14 days after it has been made each year (although, as the table belowindicates, a census is not planned or required each year). In addition, counsel for theForest Service shall also submit such documentation to the Court in any year in whichthe agency has determined the estimated population is within or below the AML for a

Exhibit to Stipulation of Dismissal of Action with Prejudice

Case 2:09-cv-00152-HA Document 196-1 Filed 07/08/13 Page 1 of 5 Page ID#: 1473


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second consecutive year, thereby triggering the termination of this Agreement, towhich Plaintiffs may file any objections to such estimates and resultant terminationwith the Court within 21 days. The Forest Service may then file a reply in responseto any such Plaintiffs ob jections within 21 days.

c. In the Stipulation of Dismissal to be filed in the above-referenced action pursuant to paragraph 9, infra, the parties will agree that the Court shall retain jurisdiction solelyfor the purposes of (1) reviewing the Forest Service s estimated wild horse populationin the event Plaintiffs file any timely objections to it as provided for in this paragraph,under an arbitrary and capricious standard as set forth in 5 U.S.C. 706(2)(D); and(2) ensuring payment of fees and costs as provided for in paragraph 3, infra, but in allother respects the action will be dismissed with prejudice pursuant to that stipulation.

Year Count Population*Estimate

PopulationEstimate with

20%recruitment

Planned Removal

2012 161 horses 173 213 horses 208-257 horses 95 horses

2013 162 horses 194 horses 90 horses

2014 104 horses 125 horses 60 horses Census

2015 65 horses 78 horses 28 horses

2016 50 horses 60 horses ** Census

* For simplicity, the initiation population estimate is shown for 2012, but for each of thefollowing years, only the upper end of the population estimate is displayed.

** The need for gathers in 2016 would be based upon Census results and/or population estimate.

2. Cooperation with the Oregon Department of Fish & Wildlife (ODFW) regardingmanagement of elk on National Forest System lands within the Murderers Creek Wildlife Management Unit (WMU )

a. The Forest Service agrees to discuss and share with ODFW at least once a year, beginning in the calendar year in which this agreement is executed and through2016, or until this Agreement terminates, whichever is sooner, potential ways that itmay work in cooperation with ODFW (pursuant to the applicable Memorandum of Understanding between the two agencies ( MOU )) to assist it in bringing or maintaining the population of elk in the WMU within the Management Objective




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(MO) set by ODFW in its applicable management plan for the WMU. TheForest Service also agrees to share whatever monitoring information it may havegathered that may be relevant to impacts of elk on natural resources in theMurderers Creek WMU and the Murderers Creek livestock grazing allotment withPlaintiffs. In addition, litigation counsel for the Forest Service, along with an

appropriate representat ive of the Forest Services Regional Office, shall offer tomeet with Plaintiffs on at least an annual basis to receive information and inputfrom Plaintiffs about the elk population within the WMU and impacts to resourceswithin the MNF from that population from the preceding year. The parties further agree that the first such meeting shall be scheduled within three months of theexecution of this Agreement at a mutually agreeable place and time.

b. As part of the discussions and information-sharing that takes place pursuant tosubparagraph 2a of this agreement, above, the Forest Service will propose asnecessary or appropriate (based in part on the availability of funds for such a

purpose) the initiation of a process with ODFW for entering into a cooperative

agreement or supplemental memorandum of understanding regarding elk impacts,and the construction or maintenance of improvements to allow for the moreeffective management and enhancement of habitat for both elk and MCR steelheadwithin the Murderers Creek WMU. In any such process, the Forest Service agreesto consider construction or more effective maintenance of fencing and other management techniques for reducing any elk impacts to MCR steelhead habitat on

National Forest System lands within the WMU.

c. In any NEPA process the Forest Service may undertake for a proposed actionwithin the Murderers Creek WMU until ODFW determines that the elk populationis within the MO as outlined in its applicable Elk Management Plan, the Forest

Service agrees to consider any potentially significant effects of its proposed actionon elk habitat that is on National Forest System lands within the WMU, includingmore specifically a brief discussion of how such effects may affect the elk

population within the WMU.

3. Compromise on payment of any and all claims of Plainti ffs for attorneys fees, costs,and expenses.

Defendant United States Forest Service agrees to pay to Plaintiffs, and Plaintiffs agree toaccept, the sum of $82,500.00 as the full amount due and owing for attorneys fees,expenses, and costs incurred in this matter. Payment of this amount shall be deemed to

satisfy in full any and all claims that Plaintiffs may have against Defendant Forest Serviceand the United States for payment of their attorneys f ees, expenses, and costs related to thecase being settled by this Agreement, and Plaintiffs hereby agree to release DefendantForest Service and the United States from any such claims upon payment in accordancewith this paragraphs terms. The parties agree that this is a lump sum payment, and thatneither Plaintiffs nor their counsel may rely in any future matters on the fact of such




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payment as evidence that Defendant United States Forest Service agreed to pay any particular hourly rate(s) for legal work performed by Plaintiffs counsel. Within 14 daysafter the District Courts dismissal of the above -referenced action pursuant to the terms of this Agreement and Fed. R. Civ. P. 41(a)(1), as the parties agree to request below in

paragraph 9, Defendant agrees to submit for processing the payment agreed to in this paragraph. The payment due under this agreement shall be made by transmitting the sumreferenced above in this paragraph, subject to any offsets that would be appropriate to makeagainst that sum for any debts or liabilities that Plaintiffs may owe to the United States, to alawyer trust account set up by Plaintiffs counsel for the purpose of receiving such funds atthe financial institution whose routing number is 123000220 and the account number for which is xxxxxxxx 9666. Plaintiffs counsel certifies that Plaintiffs have authorized the

payment due under this stipulation to be made to the referenced lawyer trust account.

4. This Agreement shall not constitute an admission of liability or fault on the part of theDefendant or any of its agents or employees.

5. No provision of this Agreement shall be interpreted as or constitute a commitment or requirement that the United States is obligated to pay funds in contravention of the Anti-Deficiency Act, 31 U.S.C. 1341, or any other provisions of law.

6. This Agreement shall be binding on the parties and their successors, agents, designees,employees, and all those acting by and through their authority.

7. The undersigned representatives of each party certify that they are fully authorized by the party they represent to agree to the Courts entry of the terms and conditions of thisAgreement and do hereby agree to the terms herein.

8. The terms of this Agreement shall become effective upon execution by all undersigned parties as signified by the signatures of their respective counsel on the blocks provided for that purpose, below, and shall remain in effect until terminated as provided by the terms of this Agreement, further agreement of the parties, or Court Order to that effect.

9. Within two weeks of the execution of this Agreement, the parties agree to jointly file withthe Court in Stout v. Forest Serv., 2:09-cv-00152-HA (D. Or.), a Stipulation of Dismissal

providing for the dismissal of that case with prejudice, except for the express purposes for which the Court shall retain jurisdiction as provided in subparagraph 1c, supra, to which acopy of this executed Agreement shall be attached as an exhibit, in accordance with Fed. R.Civ. 41(a)(1)(A)(ii).




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s/ Caroline LobdellCaroline Lobdell, OSB No. 021236Western Resources Legal Center Of Attorneys for PlaintiffsExecuted this 8th day of July 2013 on behalf of Plaintiffs

s/ Stephen J. OdellStephen J. Odell, OSB No. 903530Assistant U.S. AttorneyOffice of the United States Attorney for the District of OregonOf Attorneys for Defendant USDA Forest ServiceExecuted this 8th day of July 2013 on behalf of Defendant



Legal Stout Settlement

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