____________________________________

SPIRIT OF THE SAGE COUNCIL, et. al.,

Plaintiffs,

v.

1:96CV02503 (SS)

BRUCE BABBITT, Secretary of the
Department of the Interior, et. al.,

Defendants.

1. In this action, plaintiffs sue the defendants for announcing in August of 1994 the No Surprises Policy without prior notice and an opportunity for public comment. Plaintiffs claim that the defendant’s actions violate the Administrative Procedures Act ("APA"), specifically 5 U.S.C. 553, and the Endangered Species Act ("ESA"), specifically 16 U.S.C. 1539.

2. The defendants deny that either the APA or the ESA required notice and an opportunity for comment prior to the announcement of the August 1994 No Surprises Policy. Defendants further contend that, in any event, plaintiffs subsequently received notice and an opportunity to comment on the Policy through the comment periods on,
a) the United States Fish and Wildlife Service/National Marine Fisheries Service’s November 1996 Habitat Conservation Planning Handbook ("HCP Handbook"), and
b) the individual habitat conservation plans.

3. The parties desire to avoid further litigation and agree that the following terms represent a fair and equitable resolution of their differences.

4. Within 60 days from the date of execution of this settlement agreement, the defendants shall publish in the Federal Register a notice requesting public comment on the substance of the No Surprises Policy as it appears in the HCP Handbook at pages 3-27 to 3-32. In this notice, the defendants shall provide at least a 60-day public comment period.

5. The defendants shall render a final decision on the proposed action identified in the Federal Register notice identified in paragraph 4, and submit that final decision to the Federal Register for publication, within 150 days after the close of the public comment period.

6. Pending the defendant’s final decision referred to in paragraph 5, nothing in this settlement agreement precludes the Fish and Wildlife Service and National Marine Fisheries Service from processing and acting upon any 16 U.S.C. 1539(a) incidental take permit applications consistent with the November 1996 HCP Handbook.

7. During the period between the execution of this settlement agreement and the defendant’s final decision referred to in paragraph 5, the defendants, in a notice under 16 U.S.C. 1539( c), shall ask specifically for and respond to public comment on the appropriateness of any No Surprises assurances contained in each incidental take permit application based on a habitat conservation plan that has not previously been noticed for public comment in the Federal Register.

8. During the period between execution of this settlement agreement and the defendant’s final decision referred to in paragraph 5, the plaintiffs shall not challenge on the specific grounds set forth in plaintiff’s January 27, 1997, First Amended Complaint for Declaratory and Injunctive Relief, a) any presently existing 16 U.S.C. 1539(a) incidental take permit and any associated plans or agreements, or b) any 16 U.S.C. 1539(a) incidental take permits and any associated plans or agreements issued by the defendants prior to publication of a final decision referred to in paragraph 5. Plaintiffs do not waive any legal rights that they may otherwise have to challenge at any time any incidental take permit and any associated plans or agreements on any grounds other than those set forth in the January 27, 1997 First Amended Complaint and plaintiffs do not waive any legal right to challenge the defendant’s final decision referred to in paragraph 5. Defendants do not waive any legal right that they may have to assert that plaintiff’s are barred again from raising again in other litigation the specific claims set forth in plaintiff’s January 27, 1997 First Amended Complaint.

9. The parties agree that defendant’s commitment to provide an opportunity to comment on the No Surprises Policy is made as an offer to compromise and shall not serve as legal or factual precedent for any existing or future actions, policies, or rulemakings of the federal government.

10. Pursuant to Fed. R. Civ. Proc. 41(a)(1)(!!), the plaintiffs hereby dismiss their January 27, 1997, First Amended Complaint for Declaratory and Injunctive Relief. The Court shall retain jurisdiction to hear, if necessary, a party’s motion to enforce or modify any of the terms of this settlement agreement. Nothing in this settlement agreement is intended to resolve or affect rights of persons not presently a party to this action.

11. Plaintiffs reserve the right to seek an award of attorney’s fees and costs incurred in this action.

Respectfully submitted,

For Defendants: Eric H. Holder, Jr. Assistant Attorney General Env. And Natural Resources Div. John L. Marshall, Attorney Kelly E. Mofield, Attorney Eileen Sobeck, Chief Wildlife & Marine Resources Section Department of Justice P.O. Box 7369 Benjamin Franklin Station Washington, D.C. 20044-7369

For Plaintiffs: Eric Glitzenstein D.C. Bar No. 358287 Meyer & Glitzenstein Suite 700 1601 Connecticut Ave., N.W. Washington, D.C. 20009 (202) 588-5049

Dated March 18, 1997.

SPIRIT OF THE SAGE COUNCIL, et. al.,
Plaintiffs,

v.

1:96CV02503

BRUCE BABBITT, Secretary of the
Department of the Interior, et. al.,
Defendants.
___________________________________

1. The parties in the above-captioned matter, through their undersigned counsel, hereby stipulate and agree to an extension until February 17, 1998, for the federal defendants to comply with paragraph five of the settlement previously negotiated by the parties and approved by the Court on March 21, 1997. Specifically, the federal defendants shall no later than February 17, 1998, file with the Federal Register a final decision on a proposed rule to codify the substance of the "No Surprises" policy that is the subject of the instant litigation. The federal defendants aver that the extension is necessary because more than 800 comments were submitted on the proposed rule, two major federal agencies must consider the proposed comments to reach a decision in this matter, and the final decision of the federal agencies must be reviewed by the Office of Management and Budget pursuant to Executive Order 12866.

2. Plaintiffs agree to the stipulated extension based on the representation of the federal defendants that from December 29, 1997 (the date the defendants were required under the terms of the settlement agreement to file a final decision with the Federal Register) until February 17, 1998, no incidental take permits will be issued by the federal defendants under Section 10 of the Endangered Species Act that contains "No Surprises" assurances.

Respectfully submitted,

Dated: December 23, 1997