[
DRAFT]
STIPULATED
INJUNCTION
AND
[
PROPOSED]
ORDER
Case
No.
C­
02­
1580­
JSW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
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26
27
28
Brent
Plater
(
CA
Bar
#
209555)
CENTER
FOR
BIOLOGICAL
DIVERSITY
1095
Market
Street,
Suite
511
San
Francisco,
CA
94103
Telephone:
(
415)
436­
9682
Facsimile:
(
415)
436­
9683
bplater@
biologicaldiversity.
org
Brendan
Cummings
(
CA
Bar
#
193952)
CENTER
FOR
BIOLOGICAL
DIVERSITY
P.
O.
Box
549
Joshua
Tree,
CA
92252
Telephone:
(
760)
366­
2232
Facsimile:
(
760)
366­
2669
bcummings@
biologicaldiversity.
org
Michael
W.
Graf
(
CA
Bar
#
136172)
Law
Offices
227
Behrens
Street
El
Cerrito,
CA
94530
Telephone:
(
510)
525­
7222
Facsimile:
(
510)
525­
1208
mwgraf@
aol.
com
Attorneys
for
Plaintiff
UNITED
STATES
DISTRICT
COURT
NORTHERN
DISTRICT
OF
CALIFORNIA
CENTER
FOR
BIOLOGICAL
DIVERSITY,
a
non­
profit
corporation,

Plaintiff,

v.

STEPHEN
L.
JOHNSON,
Administrator,
Environmental
Protection
Agency,
and
WAYNE
NASTRI,
Region
9
Administrator,
Environmental
Protection
Agency,

Defendants,

and
CROPLIFE
AMERICA,
AMERICAN
FOREST
&
PAPER
ASSOCIATION,
WESTERN
PLANT
HEALTH
ASSOCIATION,
OREGONIANS
FOR
FOOD
AND
SHELTER,
AND
SYNGENTA
CROP
PROTECTION,
INC.,

Defendants­
Intervenors.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case
No.:
02­
1580­
JSW
(
JL)

[
DRAFT]
STIPULATED
INJUNCTION
AND
[
PROPOSED]
ORDER
[
DRAFT]
STIPULATED
INJUNCTION
AND
[
PROPOSED]
ORDER
1
Case
No.
C­
02­
1580­
JSW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Plaintiff
Center
for
Biological
Diversity
(
hereinafter
"
the
Center");
Defendants
Stephen
L.
Johnson,
Administrator,
Environmental
Protection
Agency,
and
Wayne
Nastri,
Region
9
Administrator,
Environmental
Protection
Agency
(
hereinafter
"
EPA");
and
Defendant­

Intervenors
CropLife
America,
American
Forest
and
Paper
Association,
Western
Plant
Health
Association,
Oregonians
for
Food
and
Shelter,
and
Syngenta
Crop
Protection,
Inc.,
by
and
through
the
undersigned
counsel,
state
as
follows:

WHEREAS,
on
April
2,
2002,
the
Center
filed
a
complaint
for
declaratory
and
injunctive
relief
pursuant
to
Section
7
of
the
Endangered
Species
Act
("
ESA")
in
the
Northern
District
of
California,
which
alleged
that
the
EPA
had
failed
to
comply
with
Section
7
regarding
the
impacts
66
pesticide
active
ingredients
may
have
upon
the
California
red­
legged
frog,
a
federally
protected
species
listed
as
threatened
under
the
Endangered
Species
Act;

WHEREAS,
Plaintiff
maintains
that
the
66
Pesticides
can
adversely
affect
the
California
red­
legged
frog
and
its
aquatic
habitats;

WHEREAS,
Intervenors
maintain
that
there
is
no
effect
from
the
use
of
the
66
Pesticides
on
the
California
red­
legged
frog;

WHEREAS,
Federal
Defendants
maintain
that
they
cannot
determine
the
effects
of
the
66
Pesticides
on
the
California
red­
legged
frog,
if
any,
and
define
appropriate
protective
measures,
if
any,
until
they
have
completed
further
scientific
analyses,
which
may
include,
but
are
not
limited
to,
further
review
under
FIFRA,
effects
determinations
made
pursuant
to
the
ESA,
or
consultation
with
the
United
States
Fish
and
Wildlife
Service
under
the
ESA,
as
appropriate;
[
NOTE:
FIFRA
should
be
defined
here]

WHEREAS,
on
September
19,
2005,
the
Court
determined
that
the
potential
of
the
66
Pesticides
to
affect
the
California
red­
legged
frog
"
is
sufficient
to
trigger
the
obligation
of
Defendants
to
conduct
the
`
may
affect'
determination
under
ESA
§
7(
a)(
2)
for
those
listed
pesticide
ingredients,"
Docket
No.
198;

WHEREAS,
the
Court
ordered
the
Parties
to
meet­
and­
confer
in
an
effort
to
set
an
agreed­
upon
schedule
for
the
EPA
to
comply
with
the
Court's
September
19,
2005
Order;
[
DRAFT]
STIPULATED
INJUNCTION
AND
[
PROPOSED]
ORDER
2
Case
No.
C­
02­
1580­
JSW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
WHEREAS,
on
January
20,
2006,
the
Plaintiff
filed
a
motion
for
injunctive
relief
and
the
Federal
Defendants
and
Intervenors
object
to
the
relief
sought
by
Plaintiff;

WHEREAS,
the
Parties
have
met
and
conferred
in
an
attempt
to
reach
agreement
on
the
timing
of
the
EPA's
compliance
with
the
Court's
order
and
the
scope
of
reasonable
interim
injunctive
relief;

WHEREAS,
the
Parties,
through
their
authorized
representatives,
have
reached
agreement
on
the
terms
of
a
stipulated
order
that
they
consider
to
be
a
just,
fair,
adequate,
and
equitable
resolution
of
the
remaining
issues
in
this
case;

WHEREAS,
all
Parties
agree
that
issuance
of
an
order
conforming
to
these
terms
is
in
the
public
interest
and
is
an
appropriate
way
to
resolve
the
remaining
disputed
issues;

WHEREAS,
the
EPA
published
in
the
Federal
Register
a
request
for
public
comment
on
the
terms
of
this
stipulated
order
and
has
considered
the
received
comments;

NOW,
THEREFORE,
IT
IS
STIPULATED
BY
AND
BETWEEN
THE
PARTIES
THAT
THE
COURT
SHOULD
ISSUE
AN
ORDER
AS
FOLLOWS:

SECTION
7
CONSULTATION
SCHEDULE
1.
Compliance
with
Section
7(
a)(
2)
of
the
Endangered
Species
Act.

The
EPA
shall
make
effects
determinations
and
initiate
consultation,
as
appropriate,
with
the
United
States
Fish
and
Wildlife
Service,
pursuant
to
applicable
regulations
in
effect
at
the
time
when
the
determination
is
made,
regarding
the
potential
effects
of
66
pesticide
active
ingredient
registrations
on
the
California
red­
legged
frog.
The
66
pesticide
active
ingredients
are:
1,3­
dichlorpropene;
2,4­
D;
acephate;
alachlor;
aldicarb;
atrazine;
azinphos­
methyl;

bensulide;
bromacil;
captan;
carbaryl;
chloropicrin;
chlorothalonil;
chlorpyrifos;

chlorthaldimethyl
(
DCPA);
diazinon;
dicofol;
diflubenzuron;
dimethoate;
disulfoton;
diuron;
endosulfan;

EPTC;
esfenvalerate;
fenamiphos;
glyphosate;
hexazinone;
imazapyr;
iprodione;
linuron;

malathion;
mancozeb;
maneb;
metam
sodium;
methamidophos;
methidathion;
methomyl;

methoprene;
methyl
parathion;
metolachlor;
molinate;
myclobutanil;
naled;
norflurazon;

oryzalin;
oxamyl;
oxydemeton­
methyl;
oxyfluoren;
paraquat
dichloride;
pendimethalin;

permethrin;
phorate;
phosmet;
prometryn;
propanil;
propargite;
propyzamide
(
pronamide);
[
DRAFT]
STIPULATED
INJUNCTION
AND
[
PROPOSED]
ORDER
3
Case
No.
C­
02­
1580­
JSW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
rotenone;
simazine;
SSS­
tributyl
phosphororithiolate
(
DEF
or
Tribufos);
strychnine;
thiobencarb;

triclopyr;
trifluralin;
vinclozolin;
and
ziram
(
hereinafter
"
the
Pesticide(
s)").

2.
Schedule
for
Compliance.

The
EPA
shall
make
the
effects
determinations
described
in
Paragraph
1
(
and
initiate
consultation,
as
appropriate)
on
the
following
schedule:

EPA
shall
make
effects
determinations
and
initiate
consultation,
as
appropriate,
for
10
of
the
Pesticides
within
9
months
of
the
date
of
this
Order.

EPA
shall
make
effects
determinations
and
initiate
consultation,
as
appropriate,
for
an
additional
10
of
the
Pesticides
(
for
a
total
of
20)
within
12
months
of
the
date
of
this
Order.

EPA
shall
make
effects
determinations
and
initiate
consultation,
as
appropriate,
for
an
additional
7
of
the
Pesticides
(
for
a
total
of
27)
within
16
months
of
the
date
of
this
Order.

EPA
shall
make
effects
determinations
and
initiate
consultation,
as
appropriate,
for
an
additional
7
of
the
Pesticides
(
for
a
total
of
34)
within
20
months
of
the
date
of
this
Order.

EPA
shall
make
effects
determinations
and
initiate
consultation,
as
appropriate,
for
an
additional
7
of
the
Pesticides
(
for
a
total
of
41)
within
24
months
of
the
date
of
this
Order.

EPA
shall
make
effects
determinations
and
initiate
consultation,
as
appropriate,
for
an
additional
8
of
the
Pesticides
(
for
a
total
of
49)
within
28
months
of
the
date
of
this
Order.

EPA
shall
make
effects
determinations
and
initiate
consultation,
as
appropriate,
for
an
additional
8
of
the
Pesticides
(
for
a
total
of
57)
within
32
months
of
the
date
of
this
Order.

EPA
shall
make
effects
determinations
and
initiate
consultation,
as
appropriate,
for
an
additional
9
of
the
Pesticides
(
for
a
total
of
66)
within
36
months
of
the
date
of
this
Order.

EPA
shall
make
effects
determinations
and
initiate
consultation,
as
appropriate,
for
66
of
the
Pesticides
within
36
months
of
the
date
of
this
Order.

INTERIM
INJUNCTIVE
RELIEF
3.
Definitions.

a.
"
Aquatic
Feature"
defined.
An
"
Aquatic
Feature"
is
defined
as
fresh­
water
habitats
in
or
near
lowlands
or
foothills
with
dense,
shrubby,
or
emergent
vegetation.
Such
areas
include
natural
or
manmade
(
e.
g.,
stock)
ponds,
slow
[
DRAFT]
STIPULATED
INJUNCTION
AND
[
PROPOSED]
ORDER
4
Case
No.
C­
02­
1580­
JSW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
moving
streams
or
pools
within
streams,
and
other
ephemeral
or
permanent
waterbodies
that
typically
become
inundated
during
winter
rains
such
as
plunge
pools,
intermittent
creeks,
seeps,
and
quiet
water
refugia.
For
purposes
of
establishing
whether
the
restrictions
included
within
this
stipulation
apply
as
an
initial
matter,
such
areas
do
not
include
those
areas
not
otherwise
meeting
the
definition
of
aquatic
breeding
habitat
and
non­
breeding
aquatic
habitat
described
by
the
U.
S.
Fish
and
Wildlife
Service
in
the
Federal
Register
on
April
13,
2006
and
codified
at
50
C.
F.
R.
§
17.95.

b.
"
Upland
Habitat"
Defined.
"
Upland
Habitat"
includes
all
areas
within
200
feet
of
the
mean
high­
water
mark
of
an
Aquatic
Feature.

4.
Use
Authorizations
Enjoined,
Vacated,
and
Set
Aside.

The
EPA's
authorization
of
any
use
of
any
of
the
Pesticides
within
the
geographical
areas
described
in
this
section
is
hereby
ENJOINED,
VACATED,
and
SET
ASIDE
as
follows,
except
as
provided
by
the
exclusions,
exemptions,
and
termination
provisions
described
below
in
paragraphs
5,
6,
7,
and
8:

a.
Final
Critical
Habitat.

The
EPA's
authorization
of
any
use
of
any
of
the
Pesticides
is
hereby
ENJOINED,

VACATED,
and
SET
ASIDE
in
all
areas
described
as
aquatic
breeding,
non­
breeding
aquatic,

and
upland
critical
habitat
for
the
California
red­
legged
frog,
Rana
aurora
draytonii,
by
the
U.
S.

Fish
and
Wildlife
Service
in
the
Federal
Register
on
April
13,
2006
at
71
Fed.
Reg.
19244,

19294,
and
codified
at
50
C.
F.
R.
§
17.95
("
hereinafter
"
April
13,
2006
Federal
Register
Notice").
A
copy
of
the
U.
S.
Fish
and
Wildlife
Service's
descriptions
of
the
aquatic
breeding,

non­
breeding
aquatic,
and
upland
critical
habitat
for
the
California
red­
legged
frog
is
attached
hereto
as
Exhibit
1.

b.
California
Red­
Legged
Frog
Populations
Outside
Final
Critical
Habitat.

The
EPA's
authorization
of
any
use
of
any
of
the
Pesticides
is
hereby
ENJOINED,

VACATED,
and
SET
ASIDE
in
all
Aquatic
Features
and
Upland
Habitats
found
in
the
following
564
sections
of
California:
[
DRAFT]
STIPULATED
INJUNCTION
AND
[
PROPOSED]
ORDER
5
Case
No.
C­
02­
1580­
JSW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
M26N07W25,
M17N16W03,
M17N17W07,
M15N16W33,
M15N16W34,

M14N16W33,
M04N03W11,
M04N03W21,
M04N03W22,
M04N03W30,

M04N03W27,
M04N03W25,
M04N02W30,
M04N02W31,
M03N03W05,

M02N03W10,
M02N04W14,
M02N03W18,
M02N03W20,
M02N01W21,

M02N03W30,
M02N03W31,
M02N03W33,
M01N03W07,
M01N03W08,

M28N12E26,
M14N11E21,
M13N11E01,
M10N12E01,
M10N08E10,
M08N14E21,

M04N11E08,
M02N14E23,
M01N18E01,
M01S02E22,
M01S02E23,
M01S02E24,

M01S03E19,
M01S03E20,
M01S03E21,
M01S03E22,
M01S03E23,
M01S02E25,

M01S03E30,
M01S03E29,
M01S03E28,
M01S02E36,
M01S03E31,
M01S03E32,

M01S03E35,
M02S06W03,
M02S01E05,
M02S01W05,
M02S02E05,
M02S02E03,

M02S02E02,
M02S03E02,
M02S06W11,
M02S06W12,
M02S03E01,
M02S04E06,

M02S01E08,
M02S01E09,
M02S02E08,
M02S02E12,
M02S03E08,
M02S03E12,

M02S04E07,
M02S01E17,
M02S01E16,
M02S01W18,
M02S02E14,
M02S02E13,

M02S03E15,
M02S04E18,
M02S01E19,
M02S01E20,
M02S01E21,
M02S01E22,

M02S02E24,
M02S03E20,
M02S06W26,
M02S03E22,
M02S04E19,
M02S04E20,

M02S01E29,
M02S01E28,
M02S01E27,
M02S02E27,
M02S02E26,
M02S03E26,

M02S04E28,
M02S01E33,
M02S01E34,
M02S01E35,
M02S02E33,
M02S02E35,

M02S02E36,
M02S03E35,
M02S04E33,
M03S01W04,
M03S01W03,
M03S01W06,

M03S01E04,
M03S01E03,
M03S01E02,
M03S02E05,
M03S02E06,
M03S02E02,

M03S03E06,
M03S02E12,
M03S03E09,
M03S04E10,
M03S01W15,
M03S02E13,

M03S04E16,
M03S01W22,
M03S02E24,
M03S03E20,
M03S06W26,
M03S04E20,

M03S04E24,
M03S01W29,
M03S02E30,
M03S03E30,
M03S03E26,
M03S03E25,

M03S06W35,
M03S04E29,
M03S05W31,
M03S04E25,
M03S01W31,
M03S01E36,

M03S02E31,
M03S02E32,
M03S03E36,
M03S04E32,
M03S04E33,
M04S06W02,

M03S04E34,
M03S04E35,
M04S05W03,
M04S01E01,
M04S02E03,
M04S06W10,

M04S03E08,
M04S01W17,
M04S01W14,
M04S01W13,
M04S01E18,
M04S01E17,

M04S01E15,
M04S03E18,
M04S06W22,
M04S01E24,
M04S05W27,
M04S02E27,

M04S01E34,
M04S02E35,
M05S01E03,
M05S01E01,
M05S03E06,
M05S06W10,
[
DRAFT]
STIPULATED
INJUNCTION
AND
[
PROPOSED]
ORDER
6
Case
No.
C­
02­
1580­
JSW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
M05S06W11,
M05S06W12,
M05S01E12,
M05S02E09,
M05S02E10,
M05S02E11,

M05S02E12,
M05S05W16,
M05S05W14,
M05S01W13,
M05S01E14,
M05S04W20,

M05S05W29,
M05S05W32,
M06S01E02,
M06S04W08,
M06S03W07,
M06S03W08,

M06S03W17,
M06S03W23,
M06S05W26,
M06S05W35,
M07S05W04,
M07S04W06,

M07S05W10,
M07S02W16,
M07S03W29,
M07S05W32,
M07S03W33,
M07S05E33,

M08S05W05,
M08S05W03,
M08S04W04,
M08S05E04,
M08S05W09,
M08S05W10,

M08S05W11,
M08S08E04,
M08S02W11,
M08S05E10,
M08S02E16,
M08S02E15,

M08S05W24,
M08S05W20,
M08S05W25,
M08S03E29,
M08S06E30,
M08S04W34,

M08S03W32,
M08S01E32,
M08S03E32,
M08S05E31,
M09S05W03,
M09S03E06,

M09S03E02,
M09S02E07,
M09S04E09,
M09S04E10,
M09S05E11,
M09S06E07,

M09S04W18,
M09S01W15,
M09S04E16,
M09S04W21,
M09S01W23,
M09S04W28,

M09S06E19,
M09S03W29,
M09S03E25,
M09S02E25,
M09S06E30,
M09S04W35,

M09S01W31,
M09S01W32,
M09S03E36,
M09S05E35,
M09S06E31,
M10S01E06,

M10S05E01,
M10S04E03,
M10S04E02,
M10S07E06,
M10S04E11,
M10S04E12,

M10S02E11,
M10S07E17,
M10S02W21,
M10S05E20,
M10S03E30,
M10S06E28,

M10S06E25,
M10S02W33,
M11S02W10,
M11S05E11,
M11S05E12,
M11S08E07,

M11S02W15,
M11S02W16,
M11S02W17,
M11S02W18,
M11S01E14,
M11S03E17,

M11S02W20,
M11S02W21,
M11S02W22,
M11S04E30,
M11S04E29,
M11S05E29,

M11S05E26,
M11S04E34,
M11S08E32,
M11S08E33,
M11S08E36,
M12S02E05,

M12S03E03,
M12S03E02,
M12S04E04,
M12S03E11,
M12S02E18,
M12S04E16,

M12S06E16,
M12S03E28,
M12S05E25,
M12S09E27,
M12S05E33,
M12S06E31,

M13S01E01,
M13S02E06,
M13S06E06,
M13S09E04,
M13S05E08,
M13S06E07,

M13S02E23,
M13S02E24,
M13S03E22,
M13S11E19,
M13S11E20,
M13S03E29,

M13S10E31,
M13S10E32,
M14S05E02,
M14S10E03,
M14S03E13,
M14S07E28,

M15S08E02,
M18S01W28,
M18S01W34,
M16S01E18,
M16S08E25,
M16S01E31,

M17S02E22,
M17S02E26,
M18S04E05,
M18S04E09,
M19S03E01,
M19S02E32,

M20S02E09,
M26S07E21,
M26S08E32,
M27S08E02,
M27S08E09,
M27S08E22,

M27S09E19,
M27S09E21,
M27S09E22,
M27S08E26,
M27S09E25,
M27S09E32,
[
DRAFT]
STIPULATED
INJUNCTION
AND
[
PROPOSED]
ORDER
7
Case
No.
C­
02­
1580­
JSW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
M27S09E33,
M27S09E34,
M27S11E32,
M28S09E08,
M28S09E16,
M28S09E23,

M28S09E28,
M28S10E29,
M28S11E25,
M28S09E35,
M28S10E31,
M28S10E32,

M28S09E36,
M29S10E02,
M29S10E12,
M29S10E14,
M29S10E13,
M29S10E23,

M29S11E33,
M30S11E05,
M30S11E12,
M30S12E07,
M30S12E18,
M30S11E34,

M31S12E31,
M02N01W15,
M02N01W22,
M02N01W24,
M02N01W25,
M02N01E29,

M02N01E27,
M02N01W36,
M02N01E33,
M01N01E08,
M01N01E11,
M01N01E12,

M01N02E18,
M01N02E17,
M01N01W33,
M01S02W06,
M01S02W05,
M01S01W06,

M01S01W05,
M01S02E04,
M01S03W10,
M01S02W08,
M01S02E09,
M01S02E12,

M01S03E08,
M01S03W16,
M01S01E14,
M01S02E14,
M01S03E17,
M01S03E16,

M01S01W22,
M01S01E20,
M01S01E23,
M01S01E24,
M01S02E19,
M01S02E20,

M01S02E30,
M01S01E33,
M01S02E31,
M02S06W01,
M01N01E28,
M01N01E36,

M01S01E04,
M01S01E03,
M09N05W29,
M07N11W20,
M07N07W34,
M07N07W35,

M06N11W04,
M06N11W15,
M06N11W14,
M06N09W19,
M06N10W35,

M06N09W36,
M05N09W04,
M05N08W03,
M05N08W09,
M05N10W17,

M05N10W13,
M05N07W30,
M05N06W27,
M04N07W06,
M04N07W05,

M04N07W04,
M04N06W03,
M04N07W18,
M04N06W25,
M04N05W30,

M04N06W35,
M04N06W36,
M01S07W12,
M01N05W32,
S06N13W16,
S05N04W10,

S03N04W23,
S01N03W10,
S01N17W18,
S11N35W18,
S11N35W17,
S11N34W29,

S11N34W25,
S11N34W32,
S10N36W02,
S10N36W01,
S10N35W01,
S10N34W05,

S10N34W04,
S10N34W07,
S10N34W08,
S10N35W16,
S10N34W21,
S10N33W22,

S10N34W29,
S10N34W32,
S10N34W33,
S09N34W06,
S09N34W05,
S09N34W04,

S09N34W03,
S09N34W08,
S09N32W07,
S09N32W08,
S09N32W15,
S09N32W13,

S09N35W24,
S09N35W27,
S09N35W32,
S08N35W06,
S08N35W05,
S08N32W30,

S08N34W32,
S07N35W09,
S07N35W10,
S07N34W20,
S07N35W27,
S07N31W30,

S07N33W36,
S06N30W16,
S06N34W24,
S06N31W36,
S05N32W12,
S05N32W18,

S05N30W19,
S05N31W32,
S05N31W34,
S05N31W35,
S05N30W31,
S05N30W32,

S04N34W02,
S04N26W07,
S04N25W17,
S07S04W26,
S05S04E03,
M27S17E09,

M27S12E32,
M28S12E05,
M29S12E10,
M29S13E20,
M29S12E26,
M29S13E29,
[
DRAFT]
STIPULATED
INJUNCTION
AND
[
PROPOSED]
ORDER
8
Case
No.
C­
02­
1580­
JSW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
M29S12E33,
M29S13E34,
M30S12E04,
M30S13E04,
M30S13E03,
M30S12E08,

M30S12E09,
M30S12E17,
M30S12E24,
M30S12E25,
M30S13E30,
M30S13E29,

M31S14E22,
M31S14E32,
M32S12E04,
M32S12E01,
M32S14E06,
M32S13E13,

M32S17E17,
M32S13E22,
M32S13E23,
M32S13E26,
M32S13E35,
M32S13E36,

S12N35W26,
S12N35W36,
S11N35W09,
M06N10W32,
M05N10W08,
M05N10W21,

M05N10W28,
M05N10W33,
S11N29W09,
M32S13E31,
M22N05E27,
M10S05E11,

M10S03W33,
M13S02E03,
M13S05E07,
M14N16W34,
M02N04W13,
M01S02E26,

M02S03E03,
M02S02W13,
M03S03E07,
M03S05E19,
M04S01E13,
M05S01E13,

M05S05W30,
M08S05E15,
M11S03E20,
M12S02E08,
M12S02E31,
M18S01W27,

M18S04E04,
M20S02E05,
M27S09E16,
M27S08E27,
M01S02E18,
M01S01E29,

M06N09W33,
M04N06W26,
M04N05W29,
S08N35W07,
M30S12E16,
M30S13E19,

M31S12E33,
S11N35W04,
and
M05N10W05.

c.
Buffer
Areas.

1.
Ground
Use
Buffer
Area.
Except
as
provided
by
the
exclusions,

exemptions,
and
termination
provisions
described
below
in
paragraphs
5,
6,
7,
and
8,
the
EPA's
authorization
of
ground
use
of
any
of
the
Pesticides
is
also
ENJOINED,
VACATED,
and
SET
ASIDE
in:

a.
All
areas
within
60
feet
from
the
edge
of
the
aquatic
breeding,

non­
breeding
aquatic,
and
upland
critical
habitat
for
the
California
red­
legged
frog,
Rana
aurora
draytonii,
described
in
the
April
13,

2006,
Federal
Register
Notice.

b.
All
areas
within
60
feet
from
the
edge
of
all
Aquatic
Features
or
Upland
Habitats
for
the
California
red­
legged
frog
within
the
Sections
described
in
Paragraph
4(
b).

2.
Aerial
Use
Buffer
Area.
Except
as
provided
by
the
exclusions,

exemptions,
and
termination
provisions
described
below
in
paragraphs
[
DRAFT]
STIPULATED
INJUNCTION
AND
[
PROPOSED]
ORDER
9
Case
No.
C­
02­
1580­
JSW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5,
6,
7,
and
8,
the
EPA's
authorization
of
aerial
use
of
any
of
the
Pesticides
is
also
ENJOINED,
VACATED,
and
SET
ASIDE
in:

a.
All
areas
within
200
feet
from
the
edge
of
the
aquatic
breeding,

non­
breeding
aquatic,
and
upland
critical
habitat
for
the
California
red­
legged
frog,
Rana
aurora
draytonii,
described
in
the
April
13,

2006,
Federal
Register
Notice;
and
b.
All
areas
within
200
feet
from
the
edge
of
all
Aquatic
Features
or
Upland
Habitats
for
the
California
red­
legged
frog
within
the
Sections
described
in
Paragraph
4(
b).

5.
Terminating
Events.

The
injunctive
relief,
vacatur,
and
setting
aside
of
EPA's
authorizations
will
terminate
automatically
for
a
Federal
Insecticide,
Fungicide,
and
Rodenticide
Act
("
FIFRA"),
7
U.
S.
C.
§
§

136­
136(
y),
authorization
for
a
particular
use
of
a
Pesticide
upon
the
completion
of
ESA
Section
7(
a)(
2)
consultation
obligations
(
including
a
"
no
effect"
determination)
for
the
authorization
of
the
particular
use
of
the
Pesticide
pursuant
to
applicable
consultation
regulations
in
effect
at
the
time
that
the
consultation
obligations
are
discharged.
The
EPA
shall
provide
Plaintiff
and
Intervenors
with
notice
of
completion
of
Section
7(
a)(
2)
consultation
obligations
made
pursuant
to
this
paragraph
within
14
days
of
such
determination,
by
facsimile
or
electronic
mail,

addressed
to
Plaintiff's
and
Intervenors'
Counsel
of
Record
in
this
matter.

ACTIVITIES
EXEMPTED
FROM
INTERIM
INJUNCTIVE
RELIEF
6.
Particular
Pesticide
Programs
Excluded.

Notwithstanding
Paragraph
4,
the
Court
determines
that
EPA's
authorization
of
the
following
uses
of
the
Pesticides
specified
below
is
NOT
ENJOINED,
VACATED,
OR
SET
ASIDE:

a.
Public
Health
Vector
Control
Programs.
EPA's
authorization
of
the
use
of
the
Pesticides
for
the
purpose
of
public
health
vector
control
when
such
program
is
administered
by
public
entities
is
NOT
ENJOINED,
VACATED,
OR
SET
ASIDE.
[
DRAFT]
STIPULATED
INJUNCTION
AND
[
PROPOSED]
ORDER
10Case
No.
C­
02­
1580­
JSW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
b.
Invasive
Species
and
Noxious
Weed
Programs.
EPA's
authorization
of
aquatic
and
non­
aquatic
uses
of
the
Pesticides
for
control
of
state­
designated
invasive
species
and
noxious
weeds
when
such
program
is
administered
by
public
entities
is
NOT
ENJOINED,
VACATED,
OR
SET
ASIDE
so
long
as
the
following
restrictions
are
implemented:

1.
Application
of
the
Pesticides
shall
be
limited
to
localized
spot
treatments
using
hand
held
devices
and
may
not
occur
within
15
feet
of
of
California
red­
legged
frog
aquatic
breeding
or
non­
breeding
aquatic
critical
habitats
designated
in
the
April
13,
2006
Federal
Register
Notice,
or
within
15
feet
of
Aquatic
Features
for
the
California
redlegged
frog
within
the
Sections
described
in
Paragraph
4(
b);

2.
The
Pesticides
cannot
be
used
when
precipitation
is
occurring
or
is
forecast
to
occur
within
24
hours;

3.
all
spraying
must
be
overseen
by
a
certified
applicator;
and
4.
for
2,
4­
D
and
triclopyr,
only
the
amine
formulations
can
be
used.

7.
Endangered
Species
Act
Approved
Uses.

EPA's
authorization
of
the
use
of
the
Pesticides
is
NOT
ENJOINED,
VACATED,
OR
SET
ASIDE
where
the
use
of
the
Pesticide
is
permissible
under
one
or
more
of
the
following:

a.
a
"
no
jeopardy"
biological
opinion
issued
under
ESA
section
7(
a)(
2)
by
the
United
States
Fish
and
Wildlife
Service
(
the
"
Service")
that
addresses
the
use
of
the
Pesticide
and
effects
on
the
California
red­
legged
frog,
provided
that
such
use
is
consistent
with
any
incidental
take
statement
included
with
the
Service's
opinion;

b.
a
"
reasonable
and
prudent
alternative"
identified
in
a
"
jeopardy"
biological
opinion
issued
under
ESA
Section
7(
a)(
2)
by
the
Service
that
addresses
the
use
of
the
Pesticide
and
effects
on
the
California
red­
legged
frog,
provided
that
such
use
is
consistent
with
the
"
reasonable
and
prudent
alternative"
and
any
incidental
take
statement
included
with
the
Service's
opinion;
[
DRAFT]
STIPULATED
INJUNCTION
AND
[
PROPOSED]
ORDER
11Case
No.
C­
02­
1580­
JSW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
c.
a
written
concurrence
by
the
Service
in
a
"
not
likely
to
adversely
affect"

determination
made
under
ESA
Section
7(
a)(
2)
that
addresses
the
use
of
the
Pesticide
and
effects
on
the
California
red­
legged
frog;

d.
an
incidental
take
permit
issued
by
the
Service
under
ESA
Section
10(
a)
that
authorizes
the
take
of
the
California
red­
legged
frog
from
application
or
use
of
the
Pesticide;
and/
or,

e.
completion
of
a
"
not
likely
to
adversely
affect"
determination
made
by
an
action
agency
to
satisfy
its
ESA
Section
7(
a)(
2)
consultation
obligation
for
a
particular
use
of
a
Pesticide
pursuant
to
applicable
regulations
in
effect
at
the
time
that
the
determination
is
made.

8.
Specific
Pesticide
Product
or
Use
Exceptions.

Notwithstanding
Paragraph
4,
the
Court
determines
that
the
EPA's
authorization
of
the
following
uses
of
the
Pesticides
specified
below
is
NOT
ENJOINED,
VACATED,
OR
SET
ASIDE:

a.
EPA's
authorization
of
use
of
the
Pesticides
in
cattle
ear
tags;

b.
EPA's
authorization
of
indoor
uses
of
the
Pesticides;

c.
EPA's
authorization
of
tree
injection
applications
of
the
Pesticides;

d.
EPA's
authorization
of
homeowner
applications
of
the
Pesticides
to
household
potted
plants;

e.
EPA's
authorization
of
use
of
the
Pesticides
in
flea
and
tick
collars
for
dogs
and
cats;

f.
EPA's
authorization
of
use
of
the
Pesticides
in
manufacturing
end­
use
products;

g.
EPA's
authorization
of
any
use
of
1,3­
dichloropropene
(
telone)
and
chloropicrin,

provided
that
such
use
occurs
at
least
sixty
feet
from
Aquatic
Features
within
the
Sections
described
in
Paragraph
4(
b)
and/
or
at
least
sixty
feet
from
aquatic
breeding
and
non­
breeding
aquatic
critical
habitats
for
the
California
red­
legged
frog
designated
in
the
April
13,
2006
Federal
Register
Notice;
[
DRAFT]
STIPULATED
INJUNCTION
AND
[
PROPOSED]
ORDER
12Case
No.
C­
02­
1580­
JSW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
h.
EPA's
authorization
of
localized
spot
treatments
of
the
Pesticides
using
handheld,

devices
on
rights­
of­
way,
roadsides,
pastures,
lawns,
or
forests,
provided
that
such
use
occurs
at
least
sixty
feet
from
Aquatic
Features
within
the
Sections
described
in
Paragraph
4(
b)
and/
or
at
least
sixty
feet
from
aquatic
breeding
and
nonbreeding
aquatic
critical
habitats
for
the
California
red­
legged
frog
designated
in
the
April
13,
2006
Federal
Register
Notice;

i.
EPA's
authorization
of
the
Pesticide's
use
for
spot
treatments
of
wasp
and
hornet
nests,
provided
that
such
use
occurs
at
least
sixty
feet
from
Aquatic
Features
within
the
Sections
described
in
Paragraph
4(
b)
and/
or
at
least
sixty
feet
from
aquatic
breeding
and
non­
breeding
aquatic
critical
habitats
for
the
California
redlegged
frog
designated
in
the
April
13,
2006,
Federal
Register
Notice;

j.
EPA's
authorization
of
individual
tree
removal
using
cut
stump
application
of
the
Pesticides,
provided
that
such
use
occurs
at
least
sixty
feet
from
Aquatic
Features
within
the
Sections
described
in
Paragraph
4(
b)
and/
or
at
least
sixty
feet
from
aquatic
breeding
and
non­
breeding
aquatic
critical
habitats
for
the
California
redlegged
frog
designated
in
the
April
13,
2006,
Federal
Register
Notice;

k.
EPA's
authorization
of
basal
bark
application
of
the
Pesticides
to
individual
plants,
provided
that
such
use
occurs
at
least
sixty
feet
from
Aquatic
Features
within
the
Sections
described
in
Paragraph
4(
b)
and/
or
at
least
sixty
feet
from
aquatic
breeding
and
non­
breeding
aquatic
critical
habitats
for
the
California
redlegged
frog
designated
in
the
April
13,
2006,
Federal
Register
Notice;

l.
EPA's
authorization
of
the
use
of
any
of
the
Pesticides
in
bait
stations,
provided
that
such
use
occurs
at
least
sixty
feet
from
Aquatic
Features
within
the
Sections
described
in
Paragraph
4(
b)
and/
or
at
least
sixty
feet
from
aquatic
breeding
and
non­
breeding
aquatic
critical
habitats
for
the
California
red­
legged
frog
designated
in
the
April
13,
2006,
Federal
Register
Notice.

NOTIFICATION
REQUIREMENTS
9.
Content
and
Distribution
of
Brochure.
[
DRAFT]
STIPULATED
INJUNCTION
AND
[
PROPOSED]
ORDER
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26
27
28
The
Court
orders
the
EPA
to
develop
a
bilingual
(
English
&
Spanish)
brochure
describing
(
1)
the
unique
biology
of
frogs
that
influences
their
susceptibility
to
environmental
pollution
including
pesticides,
(
2)
the
California
red­
legged
frog
and
its
habitat
needs,
(
3)
the
status
of
the
California
red­
legged
frog
under
the
Endangered
Species
Act,
(
4)
tips
that
may
reduce
the
potential
exposure
of
the
California
red­
legged
frog
to
pesticides,
and
(
5)
stating
that
the
Court
has
issued
an
injunction
setting
aside
EPA's
registration
of
certain
pesticides
within
certain
areas
of
California,
(
6)
listing
the
counties
that
include
areas
where
the
Court's
injunction
applies,
(
7)
providing
a
small
map
of
the
entire
State
of
California
highlighting
the
counties
where
the
Court's
injunction
applies,
and
(
8)
referring
interested
parties
to
EPA's
website
for
the
full
text
of
the
Court's
order
and
additional
maps
identifying
the
areas
where
the
Court's
injunction
applies.

The
front
cover
of
the
brochure
will
incorporate
the
following
written
and
graphic
information:

FROGS
AND
PESTICIDE
HAZARDS
Some
pesticide
products
may
harm
frogs
or
their
habitat.

The
heading
"
Frogs
and
Pesticide
Hazards"
and
the
subsequent
statement
shall
be
in
a
large
font
and
shall
be
highly
visible.
Additionally,
a
prominent
graphic
of
the
California
redlegged
frog
must
also
be
included
on
the
cover
of
the
brochure.

The
EPA
shall
distribute
a
copy
of
this
brochure
to
all
commercial
certified
applicators
of
the
Pesticides
within
the
state
of
California;
to
all
private
certified
applicators
residing
in
California
counties
where
Use
Authorizations
are
Enjoined,
Vacated,
and
Set
Aside
by
this
Order;
registrants
of
the
Pesticides;
and
to
the
California
Department
of
Pesticide
Regulation,

California
Department
of
Fish
and
Game,
and
Pacific
Region
of
the
United
States
Fish
and
Wildlife
Service.
In
addition,
EPA
shall
distribute
two­
hundred
and
fifty
(
250)
copies
of
this
brochure
to
each
of
the
County
Agricultural
Commissioner
and
Cooperative
Extension
Agent
offices
in
California
counties
where
Use
Authorizations
are
Enjoined,
Vacated,
and
Set
Aside
by
this
Order.

10.
Notification
of
Order.
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DRAFT]
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PROPOSED]
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The
EPA
is
directed
to
mail
copies
of
this
Order
directly
to
all
registrants
of
the
Pesticides.
The
EPA
is
directed
to
inform
the
public
of
the
Court's
Order
by
submitting
notice
of
this
order
for
publication
in
the
Federal
Register
and
by
displaying
the
terms
of
this
Order
on
EPA's
website.

MODIFICATIONS
TO
INJUNCTIVE
RELIEF
11.
Modifications
to
Injunctive
Relief.

The
parties
reserve
the
right
to
seek
to
have
this
Court
modify
this
injunctive
relief
(
including
both
the
schedule
and
the
interim
injunctive
relief)
because
of
EPA's
and
the
Service's
ongoing
actions
to
comply
with
the
ESA,
to
meet
the
requirements
of
other
federal
agencies
or
departments,
or
to
deal
with
circumstances
not
presently
anticipated.
The
Court
will
consider
such
future
requests
as
it
deems
appropriate.

DISPUTE
RESOLUTION
12.
In
the
event
of
a
disagreement
between
the
Parties
concerning
the
interpretation
or
performance
of
any
aspect
of
this
Settlement
Agreement,
the
dissatisfied
Party
shall
provide
the
other
Parties
with
written
notice
of
the
dispute
and
a
request
for
negotiations.
The
Parties
shall
confer
in
order
to
attempt
to
resolve
the
dispute
within
14
days
after
receipt
of
the
notice,
or
such
time
thereafter
as
is
mutually
agreed
upon.
If
the
Parties
are
unable
to
resolve
the
dispute
within
21
days
after
receipt
of
the
notice,
or
such
time
thereafter
as
is
mutually
agreed
upon,

then
any
Party
may
petition
the
Court
to
resolve
the
dispute.
The
Court
will
consider
such
future
requests
as
it
deems
appropriate.

ATTORNEYS'
FEES
13.
Federal
Defendants
agree
that
Plaintiff
is
entitled
to
reimbursement
of
reasonable
attorneys'
fees
and
costs,
as
provided
in
16
U.
S.
C.
§
1540(
g).
Federal
Defendants
and
Plaintiff
agree
to
attempt
to
resolve
Plaintiff's
claim
for
fees
and
costs
for
all
claims
in
this
action
expeditiously,
without
the
need
for
Court
intervention.
If
the
Federal
Defendants
and
Plaintiff
cannot
agree
on
the
amount
of
such
fees
within
30
days
of
the
court
order
approving
this
Stipulated
Injunction,
Plaintiff
shall
file
a
motion
for
attorneys'
fees
and
costs
with
the
Court
in
[
DRAFT]
STIPULATED
INJUNCTION
AND
[
PROPOSED]
ORDER
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this
matter.
The
Parties
recognize
that
Defendants
have
not
waived
any
defense
to
and
preserve
their
right
to
challenge
the
reasonableness
of
the
amount
of
attorneys'
fees
and
costs
requested
by
Plaintiff
in
the
event
that
Plaintiff
and
Federal
Defendants
are
unable
to
resolve
Plaintiff's
claim
for
fees
and
costs.
The
Parties
further
recognize
that
Plaintiff
reserves
the
right
to
seek
additional
fees
and
costs
incurred
arising
from
a
need
to
enforce
or
defend
against
efforts
to
modify
this
agreement
or
for
any
other
unforeseen
continuation
of
this
action.

SCOPE
OF
THE
ORDER
14.
This
Order
does
not
require
EPA
to
take
any
action
under
the
Federal
Insecticide,

Fungicide,
and
Rodenticide
Act
including,
but
not
limited
to,
any
action
to
suspend,
cancel,
or
modify
the
registration
of
any
pesticide.

15.
No
provision
of
this
Order
shall
be
interpreted
as
or
constitute
a
commitment
or
requirement
that
the
EPA
take
action
in
contravention
of
the
ESA,
the
Administrative
Procedure
Act
("
APA"),
or
any
other
law
or
regulation,
either
substantive
or
procedural.
Nothing
in
this
Order
shall
be
construed
to
limit
or
modify
the
discretion
accorded
to
EPA
by
the
ESA,
the
APA,
or
general
principles
of
administrative
law
with
respect
to
the
procedures
to
be
followed
in
making
the
effects
determinations
described
above
in
Paragraphs
1
and
2
or
as
to
the
substance
of
any
such
determinations.

16.
No
provision
of
this
Order
shall
be
interpreted
as,
or
constitute,
a
commitment
or
requirement
that
EPA
is
obligated
to
spend
funds
in
violation
of
the
Anti­
Deficiency
Act,
31
U.
S.
C.
Section
1341,
or
any
other
provisions
of
law.

17.
The
Parties
agree
that
their
stipulations
were
negotiated
in
good
faith
and
that
entry
of
this
Order
constitutes
a
settlement
of
claims
that
were
vigorously
contested,
denied,
and
disputed
by
the
Parties.
By
stipulating
to
the
entry
of
this
Order,
the
Parties
do
not
waive
any
claim
or
defense.

18.
The
undersigned
representatives
of
each
Party
certify
that
they
are
fully
authorized
by
the
Party
(
or
Parties)
they
represent
to
agree
to
the
Court's
entry
of
the
terms
and
conditions
of
this
Order
and
do
hereby
agree
to
the
terms
herein.
[
DRAFT]
STIPULATED
INJUNCTION
AND
[
PROPOSED]
ORDER
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19.
Upon
entry
of
this
Order,
Plaintiff's
complaint
shall
be
dismissed
with
prejudice.
The
dismissal
shall
apply
to
and
be
binding
upon
the
Parties
hereto
and
anyone
acting
on
their
behalf,
including
successors,
employees,
agents,
elected
and
appointed
officers,
and
assigns.

Plaintiff
and
Defendants­
Intervenors
agree
not
to
bring,
assist
any
other
Party
in
bringing,
or
join
EPA
or
any
other
Party
in
any
court
proceeding
that
concerns
an
alleged
violation
of
Section
7
of
the
ESA
on
the
effects
of
any
of
the
66
Pesticides
identified
above
in
Paragraph
1
on
the
California
red­
legged
frog
until
after
the
completion
of
any
Terminating
Event
for
that
pesticide
as
set
forth
in
Section
4
of
this
Order.

20.
This
Stipulated
Injunction
does
not
constitute
an
admission
or
evidence
of
any
fact,

wrongdoing,
misconduct,
or
liability
on
the
part
of
the
United
States,
including
without
limitation,
EPA,
its
officers,
or
any
other
person
affiliated
with
it,
by
Defendant­
Intervenors,
or
any
interpretation
of
any
applicable
provision
of
law.
This
Stipulated
Injunction
has
no
precedential
value
and
shall
not
be
used
as
evidence
in
any
other
court
proceeding
or
in
any
other
settlement
discussions.

21.
Notwithstanding
the
dismissal
of
this
action,
the
Parties
have
stipulated
and
requested
that
this
Court
retain
jurisdiction
to
oversee
compliance
with
the
terms
of
this
Order
and
to
resolve
any
motions
to
modify
such
terms.
See
Kokkonen
v.
Guardian
Life
Ins.
Co.
of
America,

511
U.
S.
375
(
1994).

22.
The
terms
of
this
Stipulated
Injunction
constitute
the
entire
agreement
of
the
Parties,
and
no
statement,
agreement
or
understanding,
oral
or
written,
which
is
not
contained
herein,
shall
be
recognized
or
enforced.

23.
The
terms
of
this
Stipulated
Injunction
shall
become
effective
upon
entry
of
an
order
by
the
Court
ratifying
this
Stipulated
Injunction.

SO
ORDERED
this
_______
day
of
August,
2006.

____________________________

United
States
District
Judge
[
DRAFT]
STIPULATED
INJUNCTION
AND
[
PROPOSED]
ORDER
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Presented
by:

Brent
Plater
(
CA
Bar
#
209555)
CENTER
FOR
BIOLOGICAL
DIVERSITY
1095
Market
Street,
Suite
511
San
Francisco,
CA
94103
Telephone:
(
415)
436­
9682
Facsimile:
(
415)
436­
9683
bplater@
biologicaldiversity.
org
Brendan
Cummings
(
CA
Bar
#
193952)
CENTER
FOR
BIOLOGICAL
DIVERSITY
P.
O.
Box
549
Joshua
Tree,
CA
92252
Telephone:
(
760)
366­
2232
Facsimile:
(
760)
366­
2669
bcummings@
biologicaldiversity.
org
Michael
W.
Graf
(
CA
Bar
#
136172)
Law
Offices
227
Behrens
Street
El
Cerrito,
CA
94530
Telephone:
(
510)
525­
7222
Facsimile:
(
510)
525­
1208
mwgraf@
aol.
com
Attorneys
for
Plaintiff
