California River Watch v. Balletto et al, No. 3:2014cv04948 - Document 44 (N.D. Cal. 2015)
Court Description: ORDER GRANTING re 41 Proposed Consent Decree & Order filed by John Balletto, Teresa Balletto. Signed, as modified, by Chief Magistrate Judge Joseph C. Spero on 9/11/15. (klhS, COURT STAFF) (Filed on 9/14/2015)
Download PDF
<![CDATA[
California River Watch v. Balletto et al 1 2 3 4 5 Doc. 44 ELLISON, SCHNEIDER & HARRIS L.L.P. Peter J. Kiel (State Bar No. 221548) Craig A. Carnes, Jr. (State Bar No. 238054) 2600 Capitol Avenue, Suite 400 Sacramento, California 95816 Telephone: (916) 447-2166 Facsimile: (916) 447-3512 Attorneys for Defendants JOHN BALLETTO AND TERESA BALLETTO 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 10 CALIFORNIA RIVER WATCH, CIVIL CASE NO. 3:14-cv-04948-JCS Plaintiff, 11 12 13 [PROPOSED] CONSENT DECREE AND ORDER v. JOHN BALLETTO; TERESA BALLETTO; DOES 1-10, Inclusive, 14 Defendants. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. RECITALS a. Defendants John Balletto and Teresa Balletto (collectively, “Defendants”) have an ownership interest in the real property located at 5700 Occidental Road (“Occidental Road Property”), Santa Rosa, California (associated with Sonoma County Assessor’s Parcel Numbers 060- 010-36, 060-010-037, and 060-010-040) and 3736, 3772 and 3800 Guerneville Road (“Guerneville Road Property”), Santa Rosa, California (associated with Sonoma County Assessor’s Parcel Numbers 130-030-030, 130-030-031, and 130-030-032) (collectively, “Property”), which is the subject of Plaintiff California River Watch’s (“CRW”) Complaint for Declaratory Relief, Injunctive Relief and Remediation filed on November 7, 2014 (“Complaint”). b. CRW filed this action against Defendants pursuant to the citizen suit provision of the federal Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., codified at 16 U.S.C. § 1540(g)(1)(A), to enjoin Defendants from alleged ongoing violations of the ESA and alleged {00316865;4} [PROPOSED] CONSENT DECREE AND ORDER 1 Dockets.Justia.com 1 violations of regulations pertaining to the Sonoma California Tiger Salamander (“CTS”), a 2 species listed as endangered pursuant to ESA § 4. 3 c. Defendants dispute CRW’s allegations and contend that they have not violated the ESA 4 in any manner. Defendants do not admit any of the substantive allegations contained in the 5 Complaint, and neither Defendants’ consent to entry of this Consent Decree nor any provision 6 herein shall be construed as an admission of fact or liability for any purpose. 7 d. CRW and Defendants (collectively, “Parties”) consent to the entry of this Consent Decree 8 without trial of any issues, and without admission by Defendants of any alleged liability, 9 violation or wrongdoing. The Parties have chosen to resolve in full CRW’s lawsuit and 10 allegations as set forth in the Complaint, and hereby stipulate that, in order to settle the claims 11 alleged against Defendants in the Complaint and to avoid the delay and expense of litigation, the 12 Court should enter this Consent Decree. In mutual consideration for the resolution of CRW’s 13 lawsuit, the Parties agree to the terms set forth herein. This Consent Decree constitutes a final 14 judgment with respect to and a settlement of CRW’s lawsuit and the disputed claims 15 encompassed therein. 16 NOW, THEREFORE, in consideration of this Consent Decree and for good and valuable 17 consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties intend to 18 be legally bound and agree as set forth below. 19 II. CONSENT DECREE 20 a. Jurisdiction: The Court has jurisdiction over the subject matter of this action and the 21 Parties pursuant to ESA § 11(g)(1)(A), 16 U.S.C. § 1540(g)(1)(A). The basis for assignment of 22 this case to the Northern District of California (“District”), pursuant to 16 U.S.C. § 23 1540(g)(3)(A), is that the alleged violations of the ESA asserted in the Complaint are purported 24 to have taken place on property and land located within the District, and Defendants conduct 25 business within this District. 26 b. Effective Date: The Effective Date of this Consent Decree shall be the last date on which 27 the signature of a party to this Consent Decree is executed. 28 /// {00316865;4} [PROPOSED] CONSENT DECREE AND ORDER 2 1 c. Required Tasks: Without admitting any fact, wrongdoing, or liability, Defendants shall 2 undertake the tasks set forth below. Defendants’ obligation to undertake the tasks shall only be 3 in effect so long as CTS is listed as Threatened or Endangered under the ESA and so long as 4 Defendants’ compliance does not conflict with any legal or regulatory mandate. Additionally, 5 Defendants’ obligation to undertake the tasks is limited to matters and actions within 6 Defendants’ power or control. Unless otherwise specified, the tasks set forth below are focused 7 on and limited to the vineyard areas of the Property. 8 i. Chemical Use: Defendants shall refrain from applying any pesticide, herbicide, 9 rodenticide or other chemical agents in the vineyards on the Property in a manner that would be 10 harmful to CTS. To comply with and satisfy this restriction, Defendants shall follow the 11 limitations, if any, in California Department of Pesticide Regulation’s Endangered Species 12 Custom Realtime Internet Bulletin Engine (“PRESCRIBE”) as applied to the Property, except 13 that between April 1 and October 31 Defendants may apply fungicides and organic-approved 14 materials (e.g., Organic Materials Review Institute [OMRI] listed substances allowed for use in 15 certified organic operations under the USDA National Organic Program) to the grapevines 16 without regard to restrictions in PRESCRIBE, if any. Notwithstanding any other provision 17 herein, restrictions on Defendants’ chemical use shall not apply to any chemical application 18 required by a regulatory agency or a legal or regulatory mandate. Defendants shall provide 19 CRW with an annual, or more frequent if Defendants so choose, report of chemical use in the 20 vineyards on the Property (“Chemical Report”). The Chemical Report shall include the following 21 information: (a) chemical agent applied; (b) amount applied; (c) application location (i.e., which 22 property); and (c) date of application. 23 ii. Rodent Management: Defendants shall not undertake any rodent management 24 actions in the vineyards on the Property except in circumstances where Defendants deem it 25 reasonably necessary to prevent harm to crops, vineyards or structures. If rodent management 26 actions are deemed reasonably necessary, Defendants shall first attempt non-chemical means of 27 control. 28 pesticides/rodenticides (or generic equivalent) listed in Exhibit A attached hereto. If Defendants {00316865;4} If non-chemical means of control are unsuccessful, Defendants may use the [PROPOSED] CONSENT DECREE AND ORDER 3 1 desire to use a pesticide/rodenticide not identified in Exhibit A, Defendants shall notify CRW of 2 the intended use at least fourteen (14) days prior to application, and CRW may provide 3 Defendants with a recommended alternate pesticide/rodenticide. Defendants shall consider 4 CRW’s recommendation and negotiate this issue in good faith. 5 iii. Crop Cover Management: Defendants shall plant native cover crops between 6 vineyard rows and other tilled areas bordering the vineyards on the Property. The native cover 7 crops shall include seed mixes of some or all of the plant species listed in Exhibit B attached 8 hereto (“Native Cover Crop”). Defendants shall undertake planting the Native Cover Crop by 9 disking and seeding with the Native Cover Crop approximately one-third (1/3) of the vineyard 10 rows on the Property per year for three successive calendar years starting in 2016 (“Initial 11 Seeding”). Defendants may, but are not required to, disk and/or seed more than one-third of the 12 vineyard rows annually as part of its crop cover management. If Defendants elect to re-seed the 13 cover crop in vineyard rows after the Initial Seeding of all vineyard rows has been completed, 14 Defendants shall use the Native Cover Crop seed except as provided below. If Defendants desire 15 to apply a plant species not identified in Exhibit B, or a non-native plant species that would 16 compete with the Native Cover Crop, Defendants shall notify CRW of the intended use at least 17 fourteen (14) days prior to application, and CRW may provide Defendants with a recommended 18 alternate plant species. Defendants shall consider CRW’s recommendation and negotiate this 19 issue in good faith. Notwithstanding any prohibitions herein, Defendants may use a non-native 20 plant species as part of its crop cover if it does not compete with the Native Cover Crop. 21 Defendants shall demonstrate compliance with the cover crop management requirements of this 22 Consent Decree annually by providing CRW with date-stamped photographs of the Native Cover 23 Crop around the Property when it submits the Chemical Report to CRW. 24 iv. Disking and Tilling: Defendants shall limit disking, tilling and other cultivation 25 in the vineyards on the Property to a depth of twelve (12) inches unless done in accordance with 26 the Impact Avoidance measures set forth in Section II(c)(vi). Deeper tilling will be required on a 27 periodic basis when grapevine replants on the Property are necessary. Deeper tilling will be 28 restricted to the same locations where the previous grapevines were removed. {00316865;4} [PROPOSED] CONSENT DECREE AND ORDER 4 1 v. Vernal Pool Creation: Defendants shall construct two vernal pools on the 2 Property or other property suitable for CTS breeding habitat. Specifically, the vernal pools may 3 be placed on the Occidental Road Property and/or the Guerneville Road Property, or on other 4 property suitable for CTS breeding habitat. Defendants shall design and construct the vernal 5 pools in good faith to provide for adequate CTS breeding habitat. Defendants shall design the 6 pool size, depth and vegetation based on their expert's determinations made with input provided 7 from CRW’s expert. Completion of the vernal pools shall occur as follows: 8 1. Defendants shall identify a site or sites for the vernal pools by November 1, 9 2015; 10 2. CRW shall approve the site or sites by December 1, 2015, which approval shall 11 not unreasonably be denied; 12 3. Defendants shall provide CRW with a conceptual restoration plan by April 1, 13 2016; and 14 4. Defendants shall complete construction of the vernal pools by August 1, 2016. 15 Within thirty (30) days of receiving notice of completion of the vernal pools, CRW shall 16 have the right to inspect the vernal pools upon reasonable notice to Defendants. Defendants shall 17 reasonably maintain the vernal pools in a condition to provide for adequate CTS breeding habitat 18 for so long as CTS are listed Threatened or Endangered under the ESA. Defendants shall 19 annually provide CRW with date-stamped photographs of the vernal pools when it submits the 20 Chemical Report to CRW. 21 vi. Impact Avoidance: Prior to any construction or future changes to the Property 22 that involve ground disturbance deeper than twelve (12) inches below ground surface, excepting 23 normal farming activities as allowed under this Consent Decree and minor repairs and 24 maintenance to existing infrastructure, exclusion fencing (silt fence) will be installed to exclude 25 CTS from entering the project area. Prior to the start of ground disturbance activities each 26 morning that construction occurs, a biological monitor will check for CTS in the construction 27 area, and under any equipment such as vehicles and stored pipes. Additionally, all open trenches, 28 holes, etc. will be covered at the end of the day or escape ramps will be provided at each location {00316865;4} [PROPOSED] CONSENT DECREE AND ORDER 5 1 2 3 to remove the potential for CTS becoming trapped in these features. d. Fees and Costs: Defendants shall pay CRW the following amounts in full settlement of CRW’s attorney’s fees and costs: 4 i. $10,000 by December 1, 2015; 5 ii. $10,000 by June 1, 2016; and 6 iii. $10,000 by December 1, 2016. 7 Such payments will be made in the form of a check made payable to “California River 8 Watch” and will be mailed to the Law Office of Jack Silver, P.O. Box 5469, Santa Rosa, CA 9 95402-5469. 10 e. Dismissal of Lawsuit and Claims: Except to the extent the Court retains jurisdiction to 11 enforce compliance of this Consent Decree, entry of this Consent Decree shall act as a dismissal 12 with prejudice of CRW’s lawsuit and all claims alleged against Defendants in the Complaint. 13 f. Release and Covenant Not to Sue or Participate: In consideration for Defendants’ 14 agreement to perform the tasks described in Section II(c), CRW covenants not to sue for and 15 does for itself and its respective legal successors and assigns, release and absolutely and forever 16 discharge Defendants and their respective legal successors and assigns, of and from any and all 17 claims, demands, damages, debts, liabilities, accounts, reckonings, obligations, costs, expenses, 18 liens, actions and causes of action of every kind and nature whatsoever, whether now known or 19 unknown, suspected or unsuspected, asserted in the Complaint or which have arisen or may arise 20 from the conduct underlying the allegations in the Complaint, including, without limitation: (a) 21 any common law claims; and (b) any claims arising under municipal, local, state, or federal 22 ordinances, statutes, or other laws including, but not limited to, Sections 7, 9, or 10 of the ESA, 23 16 U.S.C. § 1531 et seq., and any regulations promulgated pursuant to any municipal, local, 24 federal and state ordinance, statute, or other law that may arise from the conduct underlying the 25 allegations in the Complaint concerning the subject properties any time up to and including the 26 Effective Date (“Released Matters”). 27 CRW, including anyone acting on its behalf in a representative capacity, shall not 28 participate, fund or otherwise assist any other person, entity or organization in taking action, {00316865;4} [PROPOSED] CONSENT DECREE AND ORDER 6 1 2 3 legal or otherwise, against Defendants relating to the Released Matters. In furtherance of the intentions set forth herein, CRW acknowledges that it is familiar with Section 1542 of the Civil Code of the State of California, which provides as follows: 7 A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THEDEBTOR. 8 CRW waives and relinquishes any right or benefit which it has or may have under Section 1542 9 of the Civil Code of the State of California or any similar provision of the statutory or 10 nonstatutory law of any other jurisdiction to the full extent that it may lawfully waive all such 11 rights and benefits pertaining to the subject matter of this Consent Decree. In connection with 12 such waiver and relinquishment, CRW acknowledges that it is aware that his or her attorneys or 13 accountants may hereafter discover claims or facts in addition to or different from those which 14 he or she now knows or believes to exist with respect to the subject matter of this Consent 15 Decree or the other party thereto, but that it is its intention hereby fully, finally and forever to 16 settle and release all of the Released Matters, disputes and differences known or unknown, 17 suspected or unsuspected, which now exist, may exist or heretofore have existed between and 18 among CRW and Defendants, except as otherwise expressly provided herein. 4 5 6 19 g. Dispute Resolution: Any disputes between the Parties concerning any alleged breach of 20 this Consent Decree, except for Defendants’ failure to make timely payments under Section 21 II(d), shall be subject to the dispute resolution procedures set forth below. If Defendants fail to 22 make timely payments under Section II(d), CRW may seek immediate relief with the Court 23 pursuant to subsection II(g)(ii) below. 24 i. The Parties covenant and agree that, if either party believes the other is in 25 violation of one or more terms of the Consent Decree, the party shall provide written notice to 26 the other specifying the actions or inactions it deems to be in violation of this Consent Decree. 27 Within thirty (30) days of receipt of such notice, the party receiving the notice shall respond to 28 the notice in writing. If the Parties still dispute compliance with this Consent Decree, within an {00316865;4} [PROPOSED] CONSENT DECREE AND ORDER 7 1 additional thirty (30) days, the Parties shall meet and confer in a good faith attempt to resolve 2 their dispute. 3 ii. If the Parties cannot informally resolve the dispute pursuant to the procedures set 4 forth immediately above, either party may seek relief through a claim or motion filed with the 5 appropriate judge in the U.S. District Court for the Northern District of California, which will 6 retain jurisdiction over this Consent Decree. In the event that either party files a claim or motion 7 to enforce its rights under this Consent Decree, the relief the reviewing court is empowered to 8 award is limited to injunctive relief to take the relevant action(s) specified in this Consent 9 Decree, and each party shall bear its own attorney’s fees and costs incurred in such a proceeding. 10 h. Notice: All reports, pictures, notices, consents, approvals, requests, demands and other 11 communications (collectively, “Notice”) which the Parties are required or desire to serve upon or 12 deliver to the other part shall be in writing and shall be given by nationally-recognized overnight 13 courier, by certified United States mail, return receipt requested, postage prepaid, addressed as 14 set forth below, or by electronic mail addressed as set forth below: 15 If to CRW: Edward E. Yates, Esquire Law Office of Edward E. Yates 1000 Fourth Street, Suite 800 San Rafael, CA 94901 Tel: (415) 526-6143 Email: eyates@marinlandlaw.com If to Defendants: John Balletto Balletto Vineyards 5700 Occidental Road Santa Rosa, CA 95401 Tel. (707) 568-2455 Email: john@ballettovineyards.com 16 17 18 19 20 21 22 23 Copy to: 24 25 26 Craig A. Carnes, Jr. Ellison, Schneider & Harris LLP 2600 Capitol Ave., Suite 400 Sacramento, CA 95816 Tel. (916) 447-2166 Email: cac@eslawfirm.com 27 The foregoing addresses may be changed by Notice given in accordance with this Section. Any 28 Notice sent by certified mail shall be deemed received on the date shown in the proof of delivery. {00316865;4} [PROPOSED] CONSENT DECREE AND ORDER 8 1 Any Notice sent by electronic mail shall be deemed received upon electronic transmission 2 thereof provided that the sender does not receive electronic notice of non-delivery. Any Notice 3 sent by overnight courier service shall be deemed received on the day of actual delivery as 4 shown by the confirmation of delivery by the messenger or courier service. If the date of receipt 5 of any Notice to be given hereunder falls on a weekend or legal holiday, then such date of receipt 6 shall automatically be deemed extended to the next business day immediately following such 7 weekend or holiday for purposes of calculating time periods commencing upon the date of 8 service. 9 i. Attorney’s Fees and Costs: Except as set forth in Section II(d) above, each party shall 10 bear its own past and future costs and attorneys’ fees relating to the subject matter of this 11 Consent Decree. 12 j. Parties’ Acknowledgment of Terms. The Parties and their respective counsel have 13 carefully and fully read and reviewed this Consent Decree. The Parties hereby represent that the 14 contents of this Consent Decree are understood and agree that this Consent Decree is binding on 15 each party or its respective predecessors, successors, and assigns and as described herein. This 16 Consent Decree is entered into voluntarily, free of undue influence, coercion, duress, menace, or 17 fraud of any kind. Neither party, nor any officer, agent, employee, representative, or attorney of 18 or for either party, has made any statement or representation to the other party regarding any fact 19 relied upon in entering this Consent Decree, and no party to this Consent Decree is relying upon 20 any statement, representation, or promise of the other, nor of any officer, agent, employee, 21 representative, or attorney of or for either party, in executing this Consent Decree or in making 22 the settlement provided herein, except as expressly stated in this Consent Decree. 23 k. Interpretation and Applicable Law. This Consent Decree shall be construed and 24 interpreted in accordance with the laws of the United States and the State of California without 25 regard to principles of conflicts of law. This Consent Decree shall be interpreted and construed 26 as a whole, according to its fair meaning and not strictly for or against any party, and without 27 regard to which party drafted the Consent Decree. All of the promises, representations, and 28 warranties contained in this Consent Decree survive its execution. {00316865;4} [PROPOSED] CONSENT DECREE AND ORDER 9 1 2 l. Counterparts. This Consent Decree may be executed in multiple counterparts, each of which shall evidence one and the same document. 3 m. Entire Consent Decree In Writing. This Consent Decree constitutes the entire agreement 4 between the Parties hereto with respect to the subject matter set forth herein and supersedes all 5 previous or contemporaneous negotiations, commitments (oral or written), and writings with 6 respect to the subject matter set forth herein. 7 8 n. Modification or Amendment. This Consent Decree, including any exhibits hereto, may be modified or amended only by a written document executed by the Parties. 9 o. Severability. The invalidity or unenforceability of any provision of this Consent Decree 10 shall in no way affect the validity or enforceability of any other provision. If, in any action 11 before any court or other tribunal of competent jurisdiction, any term, restriction, covenant, or 12 promise is held to be unenforceable for any reason, then such term, restriction, covenant, or 13 promise shall be deemed modified to the extent necessary to make it enforceable by such court or 14 other tribunal and, if it cannot be so modified, that this Consent Decree shall be deemed amended 15 to delete such provision or portion adjudicated to be invalid or unenforceable, and the remainder 16 of this Consent Decree shall be deemed to be in full force and effect as so modified. Any such 17 modification or amendment in any event shall apply only with respect to the operation of this 18 Consent Decree in the particular jurisdiction in which such adjudication is made. 19 p. Parties Bound By This Consent Decree. This Consent Decree, and each of its provisions, 20 including all representations, warranties, and promises contained herein, binds, and inures to the 21 benefit of the Parties, and each of their respective officers, directors, members, employees, 22 contractors, heirs, assigns, present and future affiliates, parents, subsidiaries, predecessors and 23 successors in interest whether by merger, consolidation, or otherwise, as well as their respective 24 representatives, agents, and administrators, past, present, and future. 25 q. No Third Party Beneficiaries. This Consent Decree is not intended to confer any rights or 26 obligations on any third party or parties, and no third party or parties shall have any right of 27 action under this Consent Decree for any cause whatsoever. 28 /// {00316865;4} [PROPOSED] CONSENT DECREE AND ORDER 10 1 The Court having considered the representations of the Parties, NOW THEREFORE, 2 before taking any testimony, and without any adjudication of any fact or law, hereby enters the 3 Consent Decree. The Court retains jurisdiction to enforce the Consent Decree for a period of five (5) years from the date hereof. This five (5) year period may be extended by the Court upon IT IS SO ORDERED. a showing of good cause. 11th September Dated and entered this ____ day of _____________, 2015. IST S UNIT ED RIC TC RT U O 6 SD TE TA ERED RT FO NO 8 R NIA O ORD D ____________________________ IT IS S IE MODIF JOSEPH C. SPEROAS UNITED STATES Judge Joseph C. Spero JUDGE MAGISTRATE 7 9 H ER LI 5 10 A 4 N F D IS T IC T O R C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 {00316865;4} [PROPOSED] CONSENT DECREE AND ORDER 12 Exhibit A 1 2 3 4 5 6 7 8 9 List of pesticides/rodenticides that may be used where reasonably necessary to prevent harm to crops, vineyards or structures if nonchemical means of control are unsuccessful 1. Warfarin 2. Diphacinone 3. Chlorophacinone 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 {00320086;1} [PROPOSED] CONSENT DECREE AND ORDER 13 2 Exhibit B 3 Native Cover Crop 1 4 5 6 7 1. Blue wildrye (Elymus glaucus) 2. Blue dicks (Dichelostemma capitatum) 3. Brodiaea spp. (terrestrial species) 8 9 10 4. Purple needlegrass (Stipa pulchra) 5. Lupines (Lupinus nanus or L. bicolor) 11 12 6. Native tarweeds (Madia sativa, Hemizonia congesta) 13 7. Claytonia perfoliata (Miner’s lettuce) 14 15 8. Epilobium brachycarpum (Willow-herb; note – needs at least 1 early summer mowing; tall otherwise) 16 17 18 19 20 21 22 23 9. Deinandra corymbosa (another annual tarweed; needs 1 early summer mowing) 10. Madia elegans (another annual tarweed; needs 1 early summer mowing) 11. Clarkia purpurea (Purple clarkia) 12. Clarkia amoena (Clarkia) 13. California Brome (Bromus carinatus) 24 25 26 27 28 {00320086;1} [PROPOSED] CONSENT DECREE AND ORDER 14
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
