Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 1 of 27

1 DAVID A. DIEPENBROCK (SBN 215679) weintraub tobin chediak coleman grodin 2 LAW CORPORATION 400 Capitol Mall, 11th Floor 3 Sacramento, California 95814 Telephone: 916.558.6000 4 Facsimile: 916.446.1611 Email: ddiepenbrock@weintraub.com 5 Attorneys for Plaintiff 6 DANIEL TANKERSLEY 7

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9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA – SACRAMENTO DIVISION 11 weintraub tobin chediak coleman grodin

12 DANIEL TANKERSLEY, an individual, Case No.: 2:15-CV-01278-TLN-DMC 13 Plaintiff,

STIPULATION FOR VOLUNTARY

14 v. DISMISSAL OF ACTION WITH

PREJUDICE AND RETENTION OF

15 WILL ARCAND, in his individual JURISDICTION TO ENFORCE capacity as an employee of State Mining SETTLEMENT AGREEMENT; 16 and Geology Board; STEPHEN M. ORDER law corporation

TESTA, in his individual capacity as an 17 employee of State Mining and Geology Board; AND DOES 1 through 10, Courtroom: 2, 15th Floor 18 inclusive, Judge: The Honorable Troy L. Nunley Trial Date: None Set Yet 19 Defendants. Action Filed: 6/12/2015 20

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STIPULATION FOR VOLUNTARY DISMISSAL OF ACTION WITH PREJUDICE AND

RETENTION OF JURISDICTION TO ENFORCE SETTLEMENT AGREEMENT; ORDER

Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 2 of 27

1 STIPULATION

2 WHEREAS, on June 12, 2015, Plaintiff filed the Complaint in the above-entitled action.

3 WHEREAS, on October 29, 2015, Defendants Will Arcand and Stephen Testa filed a

4 Motion pursuant to Federal Rule of Civil Procedure 12(b)(3) to stay the above entitled action until

5 final adjudication of Case Nos. 34-2012-80001070 and 34-2013-80001561 currently pending in

6 Sacramento County Superior Court.

7 WHEREAS, on May 27, 2016, the Court issued an Order Granting Defendants’ Motion to

8 Stay this action.

9 WHEREAS, the Parties hereto have entered into a Settlement Agreement, a true and correct

10 copy of which is attached hereto as Exhibit A and fully incorporated herein by this reference,

11 settling the claims alleged in this case, as well as Case Nos. 34-2012-80001070, 34-2013- weintraub tobin chediak coleman grodin

12 80001561, and 34-2020-00278671 currently pending in Sacramento County Superior Court.

13 WHEREAS, the Settlement Agreement includes a provision, Section 18, in which each of

14 the Parties agreed to the court retaining jurisdiction over the Parties under section 664.6 of the

15 California Code of Civil Procedure to enforce the terms and conditions of the Settlement

16 Agreement, should that be necessary. law corporation

17 WHEREAS, Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure provides that a

18 plaintiff may voluntarily dismiss an action without a court order by filing a stipulation of dismissal

19 signed by all parties who have appeared. WHEREAS, federal law allows district courts to expressly

20 retain jurisdiction to enforce a settlement agreement, such that breach of the settlement agreement

21 would be a violation of the court’s dismissal order, and support the court’s exercise of ancillary

22 jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994).

23 WHEREFORE, the Parties hereby stipulate that this action be dismissed with prejudice as to

24 all Defendants and in its entirety, with each Party to bear his own attorneys’ fees and costs;

25 provided, however, that the Parties’ stipulation of dismissal of this action with prejudice is

26 conditioned upon the Court issuing an order retaining jurisdiction over the Parties to enforce the

27 terms and conditions of the Settlement Agreement.

28 WHEREFORE, the Parties hereby stipulate to this Court retaining jurisdiction to enforce the -1-

STIPULATION FOR VOLUNTARY DISMISSAL OF ACTION WITH PREJUDICE AND

RETENTION OF JURISDICTION TO ENFORCE SETTLEMENT AGREEMENT; ORDER

Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 3 of 27

1 terms and conditions of the Settlement Agreement pursuant to California Code of Civil Procedure

2 section 664.6 and applicable federal law, and respectfully request that the Court enter the

3 accompanying proposed order.

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STIPULATION FOR VOLUNTARY DISMISSAL OF ACTION WITH PREJUDICE AND

RETENTION OF JURISDICTION TO ENFORCE SETTLEMENT AGREEMENT; ORDER

Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 4 of 27

1 Respectfully submitted,

2 Dated: January 4, 2021

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4 By: _/s/ Dan Tankersley_________ DAN TANKERSLEY, Plaintiff 5

6 Dated: January 4, 2021

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8 By: _/s/ Will Arcand__ ________ WILL ARCAND, Defendant 9 Dated: January 4, 2021 10

11 weintraub tobin chediak coleman grodin

By: _/s/ Stephen M. Testa__________ 12 STEPHEN M. TESTA, Defendant

13 Dated: January 4, 2021 weintraub tobin chediak coleman grodin 14 LAW CORPORATION

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16 By: _/s/ David Diepenbrock_____ law corporation

David A. Diepenbrock 17 Attorneys for Plaintiff,

DAN TANKERSLEY

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19 Dated: January 4, 2021 XAVIER BECERRA Attorney General of California 20 DAVID G. ALDERSON 21 Supervising Deputy Attorney General

TARA L. MUELLER

22 Deputy Attorney General

NICHOLAS TSUKAMAKI

23 Deputy Attorney General 24

25 By: _/s/ Tara Mueller_________ 26 Tara L. Mueller Deputy Attorney General 27 Attorneys for Defendants Will Arcand and Stephen M. Testa 28 -3-

STIPULATION FOR VOLUNTARY DISMISSAL OF ACTION WITH PREJUDICE AND

RETENTION OF JURISDICTION TO ENFORCE SETTLEMENT AGREEMENT; ORDER

Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 5 of 27

1 ORDER 2 Pursuant to the above stipulation, and for good cause appearing therefore, it is hereby

3 ordered that the above action shall be dismissed with prejudice as to all Defendants and in its

4 entirety, with each Party to bear his own attorneys’ fees and costs; provided, however, that the

5 Court shall, pursuant to section 664.6 of the California Code of Civil Procedure and applicable

6 federal law, retain jurisdiction over the Parties to the above-entitled action to enforce the terms and

7 conditions of the Parties’ Settlement Agreement, a true and correct copy of which is attached hereto

8 as Exhibit A and to the accompanying Stipulation, and which is hereby incorporated and embodied

9 herein by this reference.

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11 IT IS SO ORDERED. weintraub tobin chediak coleman grodin

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13 DATED: January 6, 2021 Troy L. Nunley 14 United States District Judge 15

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STIPULATION FOR VOLUNTARY DISMISSAL OF ACTION WITH PREJUDICE AND

RETENTION OF JURISDICTION TO ENFORCE SETTLEMENT AGREEMENT; ORDER

Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 6 of 27

Exhibit A Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 7 of 27 1 SETTLEMENT AGREEMENT

2 This Settlement Agreement (“Agreement”) is made and entered into by and among

3 Petitioners and Cross-Defendants Joe Hardesty, Yvette Hardesty, and Richard Churches;

4 Petitioner, Plaintiff, and Cross-Defendant Daniel Tankersley (collectively “Petitioners”);

5 Defendants Will Arcand and Stephen M. Testa, and Respondent, Defendant, and Cross-

6 Complainant California State Mining and Geology Board (“Board”) (collectively, the “Parties”).

7 This agreement will become effective as of December 17, 2020 (“Effective Date”).

8 RECITALS

9 A. The Board is a public agency of the State of California.

10 B. Joe Hardesty (“Hardesty”) and Yvette Hardesty (collectively, “the Hardestys”),

11 Richard Churches (“Churches”), Daniel Tankersley (“Tankersley”), Will Arcand (“Arcand”),

12 and Stephen M. Testa (“Testa”) are individuals.

13 C. Petitioners filed Case Nos. 34-2012-80001070 and 34-2013-80001561 in Sacramento

14 County Superior Court alleging, among other things, that certain Notices of Violation, Orders to

15 Comply, and Administrative Penalty Orders issued by the Board against Petitioners pursuant to

16 the Surface Mining and Reclamation Act of 1975 (Pub. Resources Code, § 2710, et seq.)

17 (SMARA) regarding the Big Cut Mine site were unlawful.

18 D. The Board filed a cross-complaint against Petitioners in Case No. 34-2012-80001070

19 for declaratory and injunctive relief and for recovery of administrative penalties and certain

20 costs, interest, and fees.

21 E. Tankersley filed a complaint against the Board in Case No. 34-2020-00278671 in

22 Sacramento County Superior Court alleging violations of the Bagley-Keene Open Meeting Act

23 (Gov. Code, § 11120, et seq.) (“Bagley-Keene Action”).

24 F. Tankersley filed a complaint against former Board Senior Engineering Geologist

25 Arcand and former Board Executive Officer Testa in Case No. 2:15-cv-01278-TLN-CMK (U.S.

26 District Court, Eastern District of California) (“Federal Action”) alleging that they violated his

27 procedural and substantive due process rights.

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SETTLEMENT AGREEMENT

Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 8 of 27 1 G. These cases arise out of events relating to the “Big Cut Mine,” which encompasses

2 approximately 150 acres, and is located off Big Cut Road, about 1.5 miles south of Placerville, in

3 El Dorado County, California.

4 H. Following negotiations by and among all Parties through each party’s counsel of

5 record, the Parties have reached and entered into this Agreement in a good faith effort to avoid

6 the uncertainty and additional expense of protracted litigation, and which the Board believes is in

7 the best interests of the people of the State of California.

8 I. The Parties mutually desire to enter into this Agreement to effectuate a full and final

9 resolution of Case Nos. 34-2012-80001070, 34-2013-80001561, 34-2020-00278671, and the

10 Federal Action (collectively the “Litigation”) as follows:

11 TERMS

12 NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby

13 acknowledged, the Parties agree as follows:

14 1. Receipt of Documents into the Record, Finding as to Reclamation, Release of 15 Financial Assurances, and Rescission of Administrative Penalty Orders At its December 17, 2020 regularly scheduled hearing/meeting and in open session, the 16 Board shall do all of the following: 17 a. The Board will formally receive into the record the following documents, along with 18 any other documents or submittals Petitioners may wish to submit to the Board for its 19 consideration that relate to the subject matter hereof, including but not limited to: (1) a 20 “Reclamation Completion Report” dated September 10, 2020, prepared by Simon Makdessi, 21 P.E., G.E., based on his August 18, 2020 inspection of the Big Cut Mine; (2) a “Supplement to 22 Reclamation Plan” for the Big Cut Mine dated June 22, 2020, prepared by Kenneth A. Williams, 23 C.E.G.; and (3) a final accompanying Financial Assurance Cost Estimate (FACE) for the Big Cut 24 Mine prepared by Cheryl Bly-Chester, P.E. dated December 3, 2020. The Board will not 25 formally approve any of these three documents or any other documents or submittals by 26 Petitioners prior to or during the hearing. 27 b. After the Board has received into the record the documents described above in 28

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SETTLEMENT AGREEMENT

Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 9 of 27 1 Paragraph 1.a, and has considered these documents and any other relevant information in its

2 discretion, the Board will, at the same meeting, make a finding as to whether the Big Cut Mine

3 site is substantially reclaimed within the meaning of the definition of “Reclamation” in Public

4 Resources Code section 2733 (hereafter “substantially reclaimed”). If the Board makes a formal

5 finding that the Big Cut Mine site has been substantially reclaimed, the Board will, at the same

6 meeting, vote on whether to release to the Hardestys the $166,931.50 in financial assurance

7 mechanisms the Hardestys provided to secure reclamation of the Big Cut Mine.

8 c. At the same public hearing, the Board also will vote on whether to (1) rescind the

9 Administrative Penalty Order issued to the Hardestys and Churches on March 10, 2011 (“APO

10 No. 1”); (2) rescind the Administrative Penalty Order issued to all Petitioners on June 13, 2013

11 (“APO No. 3”); and (3) confirm the Board’s June 13, 2013 rescission of the Administrative

12 Penalty Order issued to all Petitioners on January 12, 2012 (“APO No. 2”).

13 2. Parties’ Obligations and Agreements Contingent on Board Actions Taken at Its 14 December 17, 2020 Meeting All of the Parties’ obligations and agreements set forth below in Paragraph 3 (Board 15 payment to Tankersley), Paragraph 4 (Hardesty payment to Tankersley), Paragraph 5 16 (dismissals), Paragraph 6 (agreement regarding the owners and operators of Big Cut Mine), 17 Paragraph 7 (agreement regarding future surface mining operations), Paragraph 8 (agreement 18 regarding the Board’s jurisdiction over access road), Paragraph 9 (costs and fees), Paragraph 11 19 (Petitioners’ releases to the Board), Paragraph 12 (the Board’s releases to Petitioners), Paragraph 20 13 (Arcand’s and Testa’s Releases to Tankersley), Paragraph 14 (Tankersley’s Releases to 21 Arcand and Testa), and Paragraph 15 (waiver of Civil Code section 1542), are contingent on the 22 Board first taking the following actions (“Contingent Board Actions”) described above, in 23 Paragraphs 1.b and 1.c: 24 (i) making a formal finding that the Big Cut Mine site has been substantially reclaimed; 25 (ii) releasing the full $166,931.50 in financial assurance mechanisms to the Hardestys; 26 (iii) rescinding APO Nos. 1 and 3; and 27 (iv) confirming the rescission of APO No. 2. 28

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SETTLEMENT AGREEMENT

Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 10 of 27 1 If the Board does not take all of these actions on December 17, 2020, the Board and

2 Petitioners will meet and confer in an effort to resolve any outstanding issues. If the Board and

3 Petitioners are unable to resolve all of the outstanding issues during the meet and confer process,

4 they will participate in a voluntary settlement conference at the Sacramento County Superior

5 Court.

6 If the Board and Petitioners are able to resolve all of the outstanding issues during the meet

7 and confer process, or the voluntary settlement conference, the Parties will be bound by all of

8 their obligations and agreements under the terms of this Agreement, except as expressly

9 modified through any amendment signed by all of the Parties hereto.

10 If, after meeting and conferring and participating in a voluntary settlement conference, the

11 Board and Petitioners are unable to resolve all outstanding issues, the Litigation will proceed as

12 allowed by law.

13 3. Board Payment of $200,000 to Tankersley. 14 a. Within fifteen (15) days after the Board has taken all of the Contingent Board Actions, as 15 provided for in Paragraph 1 and as defined in Paragraph 2, the Board, or the state agency,

16 department, or office (e.g. State Controller’s Office) responsible for issuing the Board payment

17 to Tankersley on the Board’s behalf, will send a check in the amount of $200,000 made payable

18 to Daniel Tankersley, via certified mail, return receipt requested, to Weintraub Tobin, Attention

19 David A. Diepenbrock, Tankersley’s counsel of record, at the following address: 400 Capitol

20 Mall, 11th Floor, Sacramento, CA 95814. The Board’s delivery of the $200,000 to Tankersley is

21 contingent on the Board’s, and the Department of Conservation’s, receipt from Tankersley of a

22 Payee Data Record form, or any other documentation reasonably and customarily required by the

23 state for making settlement payment. Upon receipt of the check, Mr. Diepenbrock shall notify

24 counsel of record for all of the other Parties via email that he has received the check.

25 b. The Parties acknowledge that it is Tankersley’s responsibility to characterize the tax 26 consequences, if any, of the Board’s $200,000 payment to Tankersley. Tankersley expressly

27 agrees to be solely responsible for any tax liability which may result from payment of the

28 $200,000, and expressly acknowledges that the Board is not liable in any way for any tax

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SETTLEMENT AGREEMENT

Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 11 of 27 1 consequences of any payment made to him under this Agreement. Tankersley understands and

2 acknowledges that the Board may be required to report the payment of the $200,000 to

3 appropriate taxing authorities, including the Internal Revenue Service and the California

4 Franchise Tax Board. Tankersley acknowledges that the Board has not made any representations

5 regarding the tax consequences of any payment by the Board to Tankersley under this

6 Agreement. The State Controller’s Office may issue an IRS 1099 Form to Tankersley.

7 4. Hardesty’s Payment of $100,000 to Tankersley

8 Within fifteen (15) days after the Board has taken all of the Contingent Board Actions, as

9 provided for in Paragraph 1 and as defined in Paragraph 2, Hardesty will send a check in the

10 amount of $100,000 made payable to Daniel Tankersley, via certified mail, return receipt

11 requested, to Weintraub Tobin, Attention David A. Diepenbrock, Tankersley’s counsel of record,

12 at the following address: 400 Capitol Mall, 11th Floor, Sacramento, CA 95814.

13 5. Dismissals

14 Within fifteen (15) days after Mr. Diepenbrock has notified counsel of record for all of the

15 other Parties that he has received the Board’s check in the amount of $200,000, as provided for

16 in Paragraph 3, the Parties shall take all of the following actions:

17 a. All of the Parties shall file and serve on all other counsel a Notice of Unconditional

18 Settlement of Entire Case (Judicial Council Form CM-200) in Case Nos. 34-2012-80001070, 34-

19 2013-80001561, and 34-2020-00278671. 20 b. All Petitioners shall file and serve on counsel for the Board an executed request for

21 voluntary dismissal of Case Nos. 34-2012-80001070 and 34-2013-80001561 in their entirety,

22 with prejudice.

23 c. The Board shall file and serve on counsel for Petitioners an executed request for

24 voluntary dismissal of the cross-complaint in Case No. 34-2012-80001070 in its entirety, with

25 prejudice.

26 d. Tankersley shall file and serve on counsel for the Board an executed request for

27 voluntary dismissal of Case No. 34-2020-00278671 in its entirety, with prejudice.

28 e. Tankersley shall file and serve on counsel for Arcand and Testa an executed request

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SETTLEMENT AGREEMENT

Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 12 of 27 1 for voluntary dismissal of the Federal Action in its entirety, with prejudice.

2 All of the Board’s and Petitioners’ agreements and obligations in this Paragraph are

3 effective only if the Board takes all of the Contingent Board Actions, as provided for in

4 Paragraph 1 and as defined in Paragraph 2, at its December 17, 2020 Board meeting, and the

5 timely issuance and mailing of the $200,000 payment to Tankersley, as set forth above in

6 Paragraph 3.a. If the Board fails to take all of the Contingent Board Actions, then the Board’s

7 and Petitioners’ sole obligations shall be to meet and confer with one another and to engage in a

8 voluntary settlement conference, as provided in Paragraph 2 herein.

9 6. Agreement Regarding the Owners and Operators of the Big Cut Mine and 10 Responsibility as to Reclamation The Board and Petitioners stipulate and agree that Hardesty is currently the sole operator of 11 the Big Cut Mine; that neither Yvette Hardesty, Churches, nor Tankersley are currently 12 operators of the Big Cut Mine; and that Tankersley is not currently an owner of the Big 13 Cut Mine. The Board and Petitioners further agree that neither Churches nor Tankersley will 14 have any responsibility or liability with regard to any reclamation work that Hardesty has 15 performed up to and including December 17, 2020, or any further reclamation work that may be 16 required at the Big Cut Mine in order to meet the requirements of this Agreement. 17 All of the Board’s and Petitioners’ agreements and obligations in this Paragraph are 18 effective only if the Board takes all of the Contingent Board Actions, as provided for in 19 Paragraph 1 and as defined in Paragraph 2, the Board pays $200,000 to Tankersley as set forth in 20 Paragraph 3, and the Parties dismiss Case Nos. 34-2012-80001070, 34-2013-80001561, 34-2020- 21 00278671, and the Federal Action, including the Board’s cross-complaint in Case No. 34-2012- 22 80001070, in their entirety with prejudice, as described above in Paragraph 5. 23 7. Agreement Regarding Future Surface Mining Operations 24 Hardesty agrees that before commencing any surface mining operations at the Big Cut Mine 25 that section 2714 of SMARA does not exempt from SMARA’s local permit and reclamation plan 26 and financial assurance approval requirements, he shall do all of the following: (1) obtain a local 27 permit to mine; (2) submit a SMARA-compliant reclamation plan to the Board for the proposed 28

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SETTLEMENT AGREEMENT

Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 13 of 27 1 surface mining operations and obtain the full Board’s approval of that reclamation plan; (3)

2 submit to the Board, and obtain the full Board’s approval of, a SMARA-compliant financial

3 assurance cost estimate and accompanying financial assurance mechanism(s) necessary to

4 conduct and complete reclamation on the mined lands in accordance with the approved

5 reclamation plan; and (4) comply with any and all provisions of SMARA and its implementing

6 regulations pertaining to the proposed surface mining operations, including payment of all

7 applicable fees required by SMARA and its implementing regulations and Public Resources

8 Code section 2207.

9 All of the Board’s and Petitioners’ agreements and obligations in this Paragraph are

10 effective only if the Board takes all of the Contingent Board Actions, as provided for in

11 Paragraph 1 and as defined in Paragraph 2, the Board pays $200,000 to Tankersley as set forth in

12 Paragraph 3, and the Parties dismiss Case Nos. 34-2012-80001070, 34-2013-80001561, 34-2020-

13 00278671, and the Federal Action, including the Board’s cross-complaint in Case No. 34-2012-

14 80001070, in their entirety with prejudice, as described above in Paragraph 5.

15 8. Agreement Regarding the Board’s Jurisdiction Over Access Road

16 The Board agrees that for purposes of SMARA, it does not have jurisdiction over access

17 roads located outside the boundaries of an approved Reclamation Plan. The Board stipulates that

18 the portion of the access road located between the southern property line of the Big Cut Mine

19 and Big Cut Road, which is depicted in the map attached to this Agreement as Exhibit A, is

20 located outside of the boundaries of the Reclamation Plan for Big Cut Mine that was reviewed by

21 the Board’s Surface Mining Standards Committee on September 11, 2008.

22 All of the Board’s and Petitioners’ agreements and obligations in this Paragraph are

23 effective only if the Board takes all of the Contingent Board Actions, as provided for in

24 Paragraph 1 and as defined in Paragraph 2, the Board pays $200,000 to Tankersley as set forth in

25 Paragraph 3, and the Parties dismiss Case Nos. 34-2012-80001070, 34-2013-80001561, 34-2020-

26 00278671, and the Federal Action, including the Board’s cross-complaint in Case No. 34-2012-

27 80001070, in their entirety with prejudice, as described above in Paragraph 5.

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SETTLEMENT AGREEMENT

Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 14 of 27 1 9. Costs and Fees

2 Each party shall bear its own attorneys’ fees, costs, and expenses incurred in connection

3 with the Litigation, including all attorneys’ fees, costs, and expenses associated with negotiating

4 this Agreement.

5 All of the Parties’ agreements and obligations in this Paragraph are effective only if the

6 Board takes all of the Contingent Board Actions, as provided for in Paragraph 1 and as defined in

7 Paragraph 2, the Board pays $200,000 to Tankersley as set forth in Paragraph 3, and the Parties

8 dismiss Case Nos. 34-2012-80001070, 34-2013-80001561, 34-2020-00278671, and the Federal

9 Action, including the Board’s cross-complaint in Case No. 34-2012-80001070, in their entirety

10 with prejudice, as described above in Paragraph 5.

11 10. Notice/Correspondence

12 All notices and correspondence pertaining to this Agreement shall be sent by email as

13 follows:

14 If to the Board:

15 David G. Alderson (David.Alderson@doj.ca.gov);

16 Tara L. Mueller (Tara.Mueller@doj.ca.gov); and

17 Nicholas Tsukamaki (Nicholas.Tsukamaki@doj.ca.gov)

18 If to Petitioners Joe Hardesty and Yvette Hardesty:

19 Klaus J. Kolb (kjklaw@sbcglobal.net)

20 If to Petitioner Richard Churches:

21 Glenn W. Peterson (gpeterson@petersonwatts.com)

22 If to Petitioner Daniel Tankersley:

23 David A. Diepenbrock (DDiepenbrock@weintraub.com)

24 The parties may each change their notice representative and/or the email address of their notice

25 representative by email sent to all other party representatives.

26 11. Petitioners’ Releases to the Board

27 Petitioners, and each of them, on behalf of themselves, and each of their past and present

28 agents, servants, receivers, trustees, employees, contractors, partners, administrators, attorneys,

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SETTLEMENT AGREEMENT

Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 15 of 27 1 consultants, representatives, successors, predecessors, heirs, related persons, or assignees, and

2 each of them, shall and do release and discharge the Board and each of its past and present

3 members, officers, employees, agents, attorneys, assigns, predecessors, and successors-in-

4 interest from any and all claims, charges, complaints, debts, liabilities, demands, obligations,

5 promises, agreements, costs, expenses (including but not limited to attorneys’ fees and

6 consultants’ fees and costs), damages, suits, actions, rights to appeal, pending appeals, and

7 causes of action of any kind and nature, in law, equity, or otherwise, whether known or

8 unknown, suspected and unsuspected, foreseen or unforeseen, disclosed and undisclosed, without

9 limitations of any kind or nature, directly or indirectly arising out of or in any way related to the

10 Big Cut Mine site, up to and including the Effective Date of this Agreement. Petitioners

11 represent that they have not previously assigned or transferred any interest in any of the claims

12 released herein. Petitioners further represent that they shall not assign or transfer any interest in

13 any of the claims released herein. Nothing herein is intended or shall be construed as a waiver of

14 Petitioners’ right to file a motion or to institute an action to compel compliance with this

15 Agreement. Petitioners further covenant not to sue the Board, or any of its past and present

16 members, officers, employees, agents, attorneys, assigns, predecessors, and successors-in-

17 interest, to seek recovery or relief, of any kind or nature, for any of the claims released herein.

18 The releases in this Paragraph are effective only if the Board takes all of the Contingent

19 Board Actions, as provided for in Paragraph 1 and as defined in Paragraph 2, the Board pays

20 $200,000 to Tankersley as set forth in Paragraph 3, and the Parties dismiss Case Nos. 34-2012-

21 80001070, 34-2013-80001561, 34-2020-00278671, and the Federal Action, including the

22 Board’s cross-complaint in Case No. 34-2012-80001070, in their entirety with prejudice, as

23 described above in Paragraph 5.

24 12. The Board’s Releases to Petitioners

25 The Board, on behalf of itself, and on behalf of each of its past and present agents, servants,

26 receivers, trustees, employees, contractors, administrators, attorneys, consultants,

27 representatives, successors, predecessors, or assignees, shall and hereby does release and

28 discharge each of the Petitioners from any and all claims, charges, complaints, debts, liabilities,

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SETTLEMENT AGREEMENT

Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 16 of 27 1 demands, obligations, promises, agreements, costs, expenses (including but not limited to

2 attorneys’ fees and consultants’ fees and costs), damages, suits, actions, rights to appeal, pending

3 appeals, and causes of action of any kind and nature, in law, equity, or otherwise, whether known

4 or unknown, suspected and unsuspected, foreseen or unforeseen, disclosed and undisclosed,

5 without limitation of any kind or nature, directly or indirectly arising out of or in any way related

6 to the Big Cut Mine site, up to and including the Effective Date of this Agreement. The Board

7 represents that it has not previously assigned or transferred any interest in any of the claims

8 released herein. The Board further represents that it shall not assign or transfer any interest in

9 any of the claims released herein. Nothing herein is intended or shall be construed as a waiver of

10 the Board’s right to file a motion or to institute an action to compel compliance with this

11 Agreement. The Board further covenants not to sue any of the Petitioners to seek recovery or

12 relief, of any kind or nature, for any of the claims released herein.

13 The releases in this Paragraph are effective only if the Board takes all of the Contingent

14 Board Actions, as provided for in Paragraph 1 and as defined in Paragraph 2, the Board pays

15 $200,000 to Tankersley as set forth in Paragraph 3, and the Parties dismiss Case Nos. 34-2012-

16 80001070, 34-2013-80001561, 34-2020-00278671, and the Federal Action, including the

17 Board’s cross-complaint in Case No. 34-2012-80001070, in their entirety with prejudice, as

18 described above in Paragraph 5.

19 13. Arcand’s and Testa’s Releases to Tankersley

20 Arcand and Testa, and each of them, on behalf of themselves and each of their past and

21 present agents, servants, receivers, trustees, employees, contractors, administrators, attorneys,

22 consultants, representatives, successors, predecessors, or assignees, shall and hereby do release

23 and discharge Tankersley, his spouse, and each of their respective past and present employees,

24 partners, representatives, agents, attorneys, heirs, assigns, predecessors, and successors-in-

25 interest from any and all claims, charges, complaints, debts, liabilities, demands, obligations,

26 promises, agreements, costs, expenses (including but not limited to attorneys’ fees and

27 consultants’ fees and costs), damages, suits, actions, rights to appeal, pending appeals, and

28 causes of action of any kind and nature, in law, equity, or otherwise, whether known or

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SETTLEMENT AGREEMENT

Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 17 of 27 1 unknown, suspected and unsuspected, foreseen or unforeseen, disclosed and undisclosed, without

2 limitations of any kind or nature, directly or indirectly arising out of or in any way related to the

3 Big Cut Mine site, up to and including the Effective Date of this Agreement. Arcand and Testa

4 each represents that he has not previously assigned or transferred any interest in any of the

5 claims released herein. Arcand and Testa each further represents that he shall not assign or

6 transfer any interest in any of the claims released herein. Nothing herein is intended or shall be

7 construed as a waiver of Arcand’s or Testa’s right to file a motion or to institute an action to

8 compel compliance with this Agreement. Arcand and Testa each further covenant not to sue

9 Tankersley, or any other Party hereto, to seek recovery or relief of any kind or nature for any of

10 the claims released herein.

11 The releases in this Paragraph are effective only if the Board takes all of the Contingent

12 Board Actions, as provided for in Paragraph 1 and as defined in Paragraph 2, the Board pays

13 $200,000 to Tankersley as set forth in Paragraph 3, and the Parties dismiss Case Nos. 34-2012-

14 80001070, 34-2013-80001561, 34-2020-00278671, and the Federal Action, including the

15 Board’s cross-complaint in Case No. 34-2012-80001070, in their entirety with prejudice, as

16 described above in Paragraph 5.

17 14. Tankersley’s Releases to Arcand and Testa

18 Tankersley, on behalf of himself and each of his past and present agents, servants, receivers,

19 trustees, employees, contractors, administrators, attorneys, consultants, representatives, 20 successors, predecessors, or assignees, shall and hereby does release and discharge Arcand and

21 Testa, and each of their respective past and present employees, partners, representatives, agents,

22 attorneys, heirs, assigns, predecessors, and successors-in-interest from any and all claims,

23 charges, complaints, debts, liabilities, demands, obligations, promises, agreements, costs,

24 expenses (including but not limited to attorneys’ fees and consultants’ fees and costs), damages,

25 suits, actions, rights to appeal, pending appeals, and causes of action of any kind and nature, in

26 law, equity, or otherwise, whether known or unknown, suspected and unsuspected, foreseen or

27 unforeseen, disclosed and undisclosed, without limitations of any kind or nature, directly or

28 indirectly arising out of or in any way related to the Big Cut Mine site, up to and including the

11

SETTLEMENT AGREEMENT

Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 18 of 27 1 Effective Date of this Agreement. Tankersley represents that he has not previously assigned or

2 transferred any interest in any of the claims released herein. Tankersley further represents that

3 he shall not assign or transfer any interest in any of the claims released herein. Nothing herein is

4 intended or shall be construed as a waiver of Tankersley’s right to file a motion or to institute an

5 action to compel compliance with this Agreement. Tankersley further covenants not to sue

6 Arcand or Testa, or any other Party hereto, to seek recovery or relief of any kind or nature for

7 any of the claims released herein.

8 The releases in this Paragraph are effective only if the Board takes all of the Contingent

9 Board Actions, as provided for in Paragraph 1 and as defined in Paragraph 2, the Board pays

10 $200,000 to Tankersley as set forth in Paragraph 3, and the Parties dismiss Case Nos. 34-2012-

11 80001070, 34-2013-80001561, 34-2020-00278671, and the Federal Action, including the

12 Board’s cross-complaint in Case No. 34-2012-80001070, in their entirety with prejudice, as

13 described above in Paragraph 5.

14 15. Waiver of Civil Code Section 1542

15 The Parties understand and agree that all rights under Civil Code section 1542 are hereby

16 waived. Section 1542 states: “A general release does not extend to claims which the creditor

17 does not know or suspect to exist in his or her favor at the time of executing the release, which if

18 known by him or her must have materially affected his or her settlement with the debtor.”

19 The waiver in this Paragraph is effective only if the Board takes all of the Contingent Board 20 Actions, as provided for in Paragraph 1 and as defined in Paragraph 2, the Board pays $200,000

21 to Tankersley as set forth in Paragraph 3, and the Parties dismiss Case Nos. 34-2012-80001070,

22 34-2013-80001561, 34-2020-00278671, and the Federal Action, including the Board’s cross-

23 complaint in Case No. 34-2012-80001070, in their entirety with prejudice, as described above in

24 Paragraph 5.

25 16. Reservation of Rights

26 Nothing in this Agreement shall constitute or be construed as a satisfaction or release from

27 any liability or claim arising out of or related to any future act or omission of the Parties arising

28 after the Effective Date.

12

SETTLEMENT AGREEMENT

Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 19 of 27 1 17. No Admission of Liability

2 This Agreement and the provisions herein constitute a full settlement of claims that are

3 denied and contested. Nothing contained in this Agreement will be construed as an admission by

4 any party of any fault or liability of any kind to any other party. Accordingly, this Agreement

5 does not and will not constitute an admission of any kind by any Party.

6 18. Continuing Jurisdiction

7 Pursuant to Code of Civil Procedure section 664.6, the Parties agree that they will jointly

8 request that the Court retain jurisdiction to enforce the terms and conditions of this Agreement.

9 Within fifteen (15) days after the Board meeting described above in Paragraph 1, the Parties will

10 file with the Court a stipulation and proposed order to this effect, and will attach thereto a fully

11 executed copy of this Agreement. Should any action be instituted to enforce any provision of

12 this Agreement, the prevailing party shall be entitled to recover its costs and reasonable

13 attorneys’ fees, in addition to all of the relief to which that party may be entitled by law.

14 19. Interpretation

15 This Agreement was drafted equally by all Parties. The Parties agree that Civil Code

16 section 1654 or any similar statute and the rule of construction holding that ambiguity is

17 construed against the drafting party shall not apply to the interpretation of this Agreement.

18 20. Governing Law

19 The Parties understand and agree that this Agreement shall be governed by, construed and 20 enforced in accordance with the laws of the State of California as applied to contracts made and

21 to be performed entirely in California based on the state of the law at that time.

22 21. Integration and Modification

23 This Agreement contains all of the terms and conditions agreed upon by the Parties relating

24 to the matters covered by this Agreement, and supersedes any and all prior and contemporaneous

25 agreements, negotiations, correspondence, understandings, representations, warranties, and

26 communications of the Parties, whether oral or written, respecting the matters covered by this

27 Agreement. This Agreement may be amended or modified only by a writing signed by the

28 Parties.

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SETTLEMENT AGREEMENT

Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 20 of 27 1 22. Severability

2 If any term or provision of this Agreement or the application thereof to any person or

3 circumstance shall, to any extent, be held invalid or unenforceable, in whole or in part, by a court

4 of competent jurisdiction, then the remainder of this Agreement other than those provisions held

5 to be invalid or unenforceable, shall not be affected thereby and each such remaining term and

6 provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

7 23. Knowing and Voluntary Agreement

8 Each party to this Agreement acknowledges that the party has been represented by legal

9 counsel, and that each party has reviewed, and has had the benefit of legal counsel’s advice

10 concerning all of the terms and conditions of this Agreement, and has entered into this

11 Agreement knowingly and voluntarily.

12 24. Authority to Execute

13 Each party to this Agreement represents and warrants that any person who has signed this

14 Agreement on his, her, or its behalf is duly authorized to sign this Agreement, and to bind that

15 party to all of the terms and conditions of this Agreement.

16 25. Successors and Assigns

17 This Agreement shall bind each of the Parties’ past and present employees, supervisors,

18 members, divisions, departments, subsidiaries, partners, representatives, agents, attorneys, heirs,

19 assigns, predecessors, delegates, personal representatives, and shall inure to the benefit of each

20 Party, its subsidiaries, agents, directors, officers, managers, brokers, partners, employees,

21 insurers, successors, and assigns.

22 26. Counterparts

23 This Agreement may be executed by the Parties in counterpart originals with the same force

24 and effect as if fully and simultaneously executed as a single, original document.

25 Each party agrees that all genuine copies of his, her, or its signature on this Agreement, including

26 photocopies and scanned or portable document format (PDF) copies, may be used as though they

27 were originals.

28

14

SETTLEMENT AGREEMENT

Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 21 of 27 Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 22 of 27 Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 23 of 27 Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 24 of 27 Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 25 of 27 1 IN WITNESS WHEREOF, the undersigned Parties have executed this Agreement as

2 provided below:

3 Dated: _______________, 2020 4 ______________________________________ 5 Joe Hardesty 6 Dated: _______________, 2020 7 ______________________________________ 8 Yvette Hardesty 9 Dated: _______________, 2020 10 ______________________________________ 11 Richard Churches

12 Dated: _______________, 2020 13 ______________________________________ 14 Daniel Tankersley 15 Dated: _______________, 2020 16 ______________________________________ 17 Will Arcand 18

19 Dated: _______________, 2020 ______________________________________ 20 Stephen M. Testa 21

22 Dated: 17, March, 2020 CALIFORNIA STATE MINING AND GEOLOGY BOARD 23

Jeffrey Schmidt 24

25 By: Jeffrey Schmidt 26 Its: Executive Officer

27

28

15

SETTLEMENT AGREEMENT

Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 26 of 27

Exhibit A Case 2:15-cv-01278-TLN-DMC Document 22 Filed 01/06/21 Page 27 of 27