Opinion
3:22-cv-06566-CRB
07-21-2023
CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff, v. GINA RAIMONDO, in her official capacity as Secretary of Commerce; and NATIONAL MARINE FISHERIES SERVICE, Defendants.
Catherine Kilduff (CA Bar No. 256331) Kristen Monsell (CA Bar No. 304793) Center for Biological Diversity Attorneys for Plaintiff
Catherine Kilduff (CA Bar No. 256331) Kristen Monsell (CA Bar No. 304793)
Center for Biological Diversity
Attorneys for Plaintiff
PLAINTIFF'S REQUEST FOR VOLUNTARY DISMISSAL AND [PROPOSED] ORDER
CHARLES R. BREYER UNITED STATES DISTRICT JUDGE
Pursuant to the Parties' Joint Stipulation, ECF 26 ¶ 2, and the Court's June 20, 2023 Order adopting the terms of the Joint Stipulation as an enforceable order of the Court, ECF 27 ¶ 2, Plaintiff Center for Biological Diversity files this request to dismiss this action except for Plaintiff's claim for attorneys' fees and costs. Plaintiff is discussing attorneys' fees and costs with counsel for Federal Defendants Gina Raimondo and the National Marine Fisheries Service. If they cannot reach an agreement within 60 days, Plaintiff will present the Court with a motion for an extension of time for Plaintiff to file for fees and costs and a proposed briefing schedule.
As stated in the Joint Status Report, ECF 28, Plaintiff filed a complaint challenging the continuing authorization of the Gillnet Fishery alleging the absence of a valid incidental take statement, in violation of ESA Section 9, and absent reinitiation of consultation under ESA Section 7 to analyze the effects of its operation on threatened and endangered species, including humpback whales, on October 27, 2022. ECF No. 1. Plaintiff's request for relief primarily sought an order requiring NMFS to “complete consultation and publish a final biological opinion within 90 days” concerning the effects of the Gillnet Fishery. See id. at 18 (Request for Relief). As set forth in the Parties' Joint Stipulation for Stay of Proceedings dated April 21, 2023 (“Joint Stipulation”), Defendants reinitiated ESA consultation to analyze the effects of the continued management of the Gillnet Fishery on threatened and endangered species, including humpback whales, and their critical habitat. ECF 24. In the Joint Stipulation, NMFS also stated that it expected to complete consultation and publish a new biological opinion on June 20, 2023. ECF 24. The Court approved the Parties' Joint Stipulation, staying proceedings until June 20, 2023, based on NMFS's expectation that it would complete consultation by that date. ECF 25. On June 20, 2023, the Parties submitted a Joint Stipulation to extend the stay of proceedings until July 11, 2023, to provide NMFS with additional time to complete consultation. ECF 26. The Court approved the Parties' Joint Stipulation, staying proceedings until July 11, 2023, based on NMFS's expectation that it would complete consultation by that date. ECF 27. Additionally, the Joint Stipulation provided that, “if NMFS completes consultation on or before July 11, 2023, Plaintiff shall dismiss its merits claims against Defendants without prejudice.” Id.
In accordance with the Parties' Joint Stipulations (ECF 24, 26) and the Court's Orders, Defendants completed the reinitiated Endangered Species Act Section 7 consultation on the Gillnet Fishery and provided Plaintiff with a copy of the biological opinion on July 11, 2023, through counsel. Plaintiff thereby requests that the Court grant this voluntary dismissal and retain jurisdiction for the purpose of oversight of Plaintiff's claim for fees and costs.
This matter is before the Court on Plaintiff's request for voluntary dismissal. Having considered the parties' Joint Stipulation, ECF 26 ¶ 2, and Joint Status Report, ECF 28, Plaintiff's claims are dismissed without prejudice, with the exception of Plaintiff's claim for attorneys' fees and costs. The Court retains jurisdiction to oversee any dispute as to fees and extends the deadline for filing any related motion for 60 days.
IT IS SO ORDERED,