Native Ecosystems Council et al v. Weldon et al
ORDER re 50 MOTION for Attorney Fees filed by Alliance for the Wild Rockies, Native Ecosystems Council. Plaintiffs shall file their supplemental affidavit no later than 14 days after the date of this order. Defendants shall file their supplemental response no later than 14 days after plaintiffs file their supplemental affidavit. Signed by Judge Donald W. Molloy on 2/4/2013. (dle)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
NATIVE ECOSYSTEMS COUNCIL, and
ALLIANCE FOR THE WILD ROCKIES,
LESLIE WELDON, Regional Forester of
Region One of the U.S. Forest Service, and
UNITED STATES FOREST SERVICE, an
agency of the U.S. Department of Agriculture,
The plaintiffs move for attorney’s fees for their successful litigation against
the Forest Service. Their motion is granted in part.
This case arises out of a dispute involving the Beaver Creek Project—a
proposed timber sale and prescribed burning on the Custer National Forest. The
plaintiffs challenged several aspects of the Project. They claimed that the Project
violated the National Forest Management Act (“NFMA”) and the National
Environmental Policy Act (“NEPA”) because it did not adequately protect elk
habitat, it failed to protect old growth, and was deficient for goshawk habitat.
They also claimed that the Forest Service violated NEPA by failing to timely
disclose the potential need for stormwater discharge permits under the Clean
Water Act and by failing to consult with state agencies regarding those permits.
On March 26, 2012, the Court granted in part and denied in part the
plaintiffs’ and defendants’ motions for summary judgment. The Court partially
granted summary judgment in favor of the plaintiffs because the Forest Service
failed to: (1) explain why it analyzed road density only at the Project level and
ranger-district level, (2) explain why it applied the road-density standard to only
Forest lands, (3) analyze road density during Project implementation, (4) identify
the stormwater discharge permits that it might need to obtain for the Project, and
(5) solicit comments on those permits from state agencies. The Court granted
summary judgment in favor of the Service on all other claims.
The Court enjoined the Forest Service from implementing the Project and
remanded the case to the Forest Service so that it could prepare a supplemental
Both parties appealed, but they then voluntarily dismissed those appeals
after a wildfire swept through the Project Area and the Forest Service formally
withdrew the Project from implementation.
The Forest Service then moved this Court to vacate its judgment. The Court
granted the motion but determined that the vacatur would not impact the question
of whether the plaintiffs are entitled to attorney’s fees.
Attorney’s fees are awarded to the plaintiffs, but not the amount that the
plaintiffs request. Excluded are any fees or costs associated with (1) the Appeals
Reform Act claim, (2) the ESA claims, and (3) the motion to strike. As the Forest
Service notes, the plaintiffs have not specifically identified how many hours were
spent on the Appeals Reform Act and ESA claims. The plaintiffs are ordered to
submit a supplemental affidavit deducting those hours and then proportionally
adjusting the fees on fee award. The Forest Service may then file a supplemental
Moreover, in its supplemental affidavit, the plaintiffs need calculate their
revised fee award using the following dates and rates:
A plaintiff is entitled to its attorney’s fees under the Equal Access to Justice
Act only if the plaintiff is a “prevailing party.” 28 U.S.C. § 2412(d)(1)(A). Even if
a plaintiff is a prevailing party, though, fees are not awarded if the government
shows that its position was “substantially justified” or that “special circumstances
make an award unjust.” Id.; United States v. Milner, 583 F.3d 1174, 1196 (9th Cir.
The plaintiffs are entitled to attorney’s fees because: (1) they are prevailing
parties and (2) the Forest Service’s positions were not substantially justified, and
there are no special circumstances that would make an award unjust. The
plaintiffs’ proposed award, though, must be modified to reflect the accurate hours
and rates as set forth above.
When a party prevails at the district court, the party is still a “prevailing
party” for purposes of an attorney’s fees award even if the case becomes moot on
appeal. UFO Chuting of Hawaii, Inc. v. Smith, 508 F.3d 1189, 1196–97 (9th Cir.
2007); Williams v. Alioto, 625 F.2d 845, 847–48 (9th Cir. 1980); Diffenderfer v.
Gomez-Colon, 587 F.3d 445, 454 (1st Cir. 2009); Kirk v. N.Y. St. Dept. of Educ.,
644 F.3d 134, 139 n.4 (2d Cir. 2011); Thomas v. Bryant, 614 F.3d 1288, 1295
(11th Cir. 2010). So, here, when this case became moot on appeal and the Court
vacated the judgment, there is no bar to an award of attorney’s fees. But, as a
threshold matter, the plaintiffs must show that they prevailed here for an award to
be appropriate. See UFO, 508 F.3d at 1196–97.
A party is a “prevailing party” when: “(1) it wins on the merits of its claim
(2) the relief received materially alters the legal relationship between the parties by
modifying the defendant’s behavior, and (3) that relief directly benefits the
plaintiff.” Id. at 1197 (citations and internal quotation marks omitted). “A party
has ‘prevailed on the merits of at least some of (their) claims,’ [Hanrahan v.
Hampton, 447 U.S. 754, 758 (1980) (per curiam)] when it has obtained a
preliminary injunction that results in a direct and substantial benefit.” Id. (citations
The question, then, is—For the time period before the case was moot, did
the party obtain the desired relief and did that relief directly benefit the plaintiff
through a material alteration of the legal relationship between the parties? See id.
In this case, the answer to that question is “Yes.”
The Ninth Circuit explained for there to be a direct benefit from an
injunction, the behavior enjoined must have been occurring at the time the
injunction was issued or there must have been an imminent threat of its
occurrence. Martinez v. Wilson, 32 F.3d 1415, 1423 (9th Cir. 1994).
In Williams, for example, the plaintiffs obtained a preliminary injunction
against certain types of “pat down” searches. 625 F.2d at 847. The case was
mooted on appeal, though, because law enforcement stopped conducting those
types of searches. Id. But the Ninth Circuit still held that the plaintiffs were
prevailing parties because they enjoyed the benefit of the preliminary injunction
before it became moot. The court reached a different result in UFO, though,
because, there, the injunction was stayed on appeal. 508 F.3d at 1198. So the
plaintiff did not reap any benefit from the injunction. Id.1
The Forest Service further points to a Tenth Circuit case—Biodiversity
Conservation Alliance v. Stem, 519 F.3d 1226 (10th Cir. 2008)—to support its
argument, but that case has little bearing here. The factual background in
Biodiversity Conservation Alliance, at least, is strikingly similar to the facts here.
There, a conservation group challenged a timber sale, the district court issued an
injunction, and a fire later mooted the case. Id. at 1228. Procedurally, though, the
cases are different in important ways. In Biodiversity Conservation, the plaintiffs
obtained only a preliminary injunction and the district court made no ruling on the
merits of the plaintiffs’ claims. Id. For these reasons alone, the Tenth Circuit held
that the plaintiffs were therefore not prevailing parties. Id. at 1228–32. The facts
here are different: The plaintiffs obtained a permanent injunction that was based
on a determination of the merits, partly in the plaintiffs’ favor. The Tenth Circuit
noted in its opinion that “a judgment on the merits or a court-ordered consent
decree would provide [the plaintiffs] with precisely the ammunition it currently
lacks.” Id. at 1230. In other words, had the plaintiffs obtained an injunction similar
to the one that the plaintiffs here obtained, then the Tenth Circuit might have
reached a different conclusion.
Here, the injunction benefitted the plaintiffs through a material alteration of
the legal relationship between the plaintiffs and the Forest Service. In the parties’
Case Management Report, the Forest Service represented that “the anticipated
beginning implementation date for ground-disturbing activities for the Forest
Service project challenged in this litigation [was] no sooner than April 1, 2012.”
(Doc. 8 at 4.) The permanent injunction was issued on March 26, 2012—a week
before the Project was set to begin. The injunction directly benefitted the plaintiffs
because it stopped the Project from moving forward, which, by the Forest
Service’s own account, was “an imminent threat” when the injunction was issued.
See Martinez, 32 F.3d at 1423. There is little doubt that the injunction modified
the Forest Service’s behavior. Before the injunction was issued, the Forest Service
was free to proceed with the Project and, indeed, was planning to do so on April 1,
2012. The injunction changed that—the Forest Service was no longer permitted to
move forward with the Project.
The Forest Service insists the plaintiffs did not directly benefit from the
injunction because the Service would not have been able to implement much of the
Project before the fire swept through the Project Area. Even if that is the case, it is
speculation at this point. What we know for certain is the injunction stopped the
Project, which is the relief that the plaintiffs sought. The fire later mooted the
dispute but that does not undermine the conclusion.
The plaintiffs are prevailing parties for purposes of an attorney’s fees award.
Even if a plaintiff is a prevailing party, a court will not award a plaintiff its
attorney’s fees if the government can show that its positions were “substantially
justified.” 28 U.S.C. § 2412(d)(1)(A). “Substantially justified” means “‘justified in
substance or in the main’—that is, justified to a degree that could satisfy a
reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). The
definition is the same as the “reasonable basis both in law and fact formulation
adopted by the Ninth Circuit and the vast majority of other courts of appeals that
have addressed this issue.” Id. (citations and internal quotation marks omitted).
“Put another way, substantially justified means that there is a dispute over which
reasonable minds could differ.” Gonzales v. Free Speech Coalition, 408 F.3d 613,
618 (9th Cir. 2005). As to the issues on which the plaintiffs here prevailed, the
Forest Service’s positions were not substantially justified.
Issues on which the plaintiffs prevailed
Here an order that partially granted summary judgment in favor of the
plaintiffs was granted because the Forest Service: (1) failed to explain why it
analyzed road density only at the Project level and ranger-district level, (2) failed
to explain why it applied the road-density standard to only Forest lands, (3) failed
to analyze road density during Project implementation, (4) failed to identify the
stormwater discharge permits that it might need to obtain for the Project, and (5)
failed to solicit comments on those permits from state agencies. The Forest
Service’s positions with respect to these issues were not substantially justified.
Road density unit of analysis
The Ninth Circuit has clearly expressed that “the choice of analysis scale
must represent a reasoned decision and cannot be arbitrary.” Idaho Sporting
Congress, Inc. v. Rittenhouse, 305 F.3d 957, 973–74 (9th Cir. 2002). Here, the
Forest Service’s own scientist specifically determined that, “[t]o be biologically
meaningful, analysis unit boundaries should be defined by the elk herd homerange . . ., and more specifically by the local herd home-range during hunting
season.” The Service, though, applied two different units of analysis—the Project
Area and the Ranger District—without explanation. Its error is not substantially
justified because reasonable minds could not dispute the impropriety of the Forest
Road density analysis of private lands
For the same reasons, the Forest Service’s failure to apply the road-density
standard to private lands was not substantially justified. The Service’s scientist,
upon whom the Service relied, stated that “[a]nalysis units should not be adjusted
for land ownership; instead they should reflect the cumulative habitat conditions
perceived by elk.” The Service, though, adjusted its analysis for land ownership
because it excluded private lands from its analysis. It provided no explanation for
this choice, and it is therefore not defensible.
Road density analysis of temporary roads
The Forest Service’s final error with respect to elk habitat is that it failed to
analyze how temporary road construction during the Project would impact road
density. The Service’s failure to conduct this analysis was not substantially
justified. As was explained in the summary judgment order, temporary roads
constructed during a Project are not excluded from the road-density standard.
Native Ecosystems Council, 848 F. Supp. 2d at 1218–19. Indeed, the Service’s
own scientists stated that those roads should be analyzed. Id. Whether the Service
should have done so, then, is not reasonably in dispute.
Identification of stormwater discharge permits
The plaintiffs also prevailed on their claim that the Forest Service needed to
comply with federal regulations by identifying stormwater discharge permits that
it might need to obtain for the Project. At the time the Draft EIS was completed,
the Ninth Circuit had expressly held:
“[S]tormwater runoff from logging roads that is collected by and then
discharged from a system of ditches, culverts, and channels is a point
source discharge for which [a National Pollutant Discharge Elimination
System] permit (‘‘discharge permit’’ or ‘‘NPDES permit’’) under the
federal Clean Water Act] is required.’’
N.W. Envtl. Def. Ctr. v. Brown, 617 F.3d 1176, 1198 (9th Cir.2010), withdrawn
and superseded, 640 F.3d 1063 (9th Cir. 2011). Federal regulations require
agencies to identify these permits in the Draft EIS, if the permits might be
necessary. The Forest Service, though, did not do so here. As was explained in the
summary judgment order, there was no justifiable reason for this omission. See
Native Ecosystems Council, 848 F. Supp. 2d at 1223–24.
Solicitation of stormwater runoff comments from state agencies
After the Forest Service prepared the Draft EIS, the regulations required it
to “[r]equest the comments of . . . [a]ppropriate State . . . agencies which are
authorized to develop and enforce environmental standards.” 40 C.F.R. §
1503.1(2)(a)(i). Again, the Service did not do this, and it has not provided a
reasoned explanation for why it did not make this request. Native Ecosystems
Council, 848 F. Supp. 2d at 1225. Its position is, therefore, not substantially
The Forest Service’s response
The Forest Service maintains that its litigation positions with respect to each
of these issues were substantially justified.
The Forest Service first takes the position that its litigation posture
regarding its analysis of elk habitat was reasonable. That position, according to the
Service’s response brief, was as follows: The Forest Service did not violate NEPA
or NFMA because the Forest Plan did not contain a specific elk habitat standard.
That was not a reasonable position.
While the Forest Service had not adopted a specific standard for elk habitat,
it still had to describe the “quantity and quality of habitat” necessary to sustain elk
viability. Native Ecosystems Council, 848 F. Supp. 2d at 1213. The only criteria
that the Forest Service employed to perform this analysis were the so-called
“indicators”—the indicators for canopy cover and road density. The Forest Service
called these criteria “indicators,” but, as explained in the summary judgment order,
they are mandatory standards. Id. at 1213–14. Any suggestion to the contrary is
not reasonable: The so-called “indicators” were binding on the Forest Service, and
they failed to correctly apply them. Id. at 1213–19.
Nor is there a reasonable dispute concerning the Forest Service’s treatment
of stormwater discharge. The Service counters that it reasonably argued that it was
not certain whether the Project would require permits or consultation with the
Montana Department of Environmental Quality. That might be true. But even if
there was uncertainty, the Service still had to identify permits that might be
necessary and still had to consult with the Department of Environmental Quality.
See N.W. Envtl. Def. Ctr., 617 F.3d at 1198; N.W. Envtl. Def. Ctr., 640 F.3d 1063;
40 C.F.R. § 1502.25(b); 40 C.F.R. § 1503.1(a)(2)(i). This was the law at the time
the Service issued its Draft EIS, and it did not change. The U.S. Supreme Court
has granted the government’s petition for a writ of certiorari in Northwest
Environmental Defense Center, but the Court has not yet issued its decision, nor
has the judgment of the underlying case been stayed. In short, the Forest Service
failed to follow the law, and there was no reasonable justification for that failure.
A Court may not award attorney’s fees under the Equal Access to Justice
Access where “special circumstances make an award unjust.” 28 U.S.C. §
2412(d)(1)(A). The Forest Service claims that fees should not be awarded here
because the plaintiffs did not receive any appreciable benefit from the litigation on
account of the wildfire. Once again their position is in error.
The Forest Service bears the burden of showing that special circumstances
exist to make an award unjust. Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th
The “special circumstances” exception to the mandatory award of
attorney fees when the government's position was not substantially
justified was developed to ensure that the government is not deterred
from advancing good faith but novel legal arguments and to protect the
court’s discretion to rely on equitable factors in denying a fee award.
Abela v. Gustafson, 888 F.2d 1258, 1266 (9th Cir. 1989) (citing H.R. Rep. No. 961418 at 11 (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4953, 4990).
Here, the wildfire mooted the appeal, but it is not a special circumstance
that should preclude an award of attorney’s fees. Contrary to the Forest Service’s
argument, the plaintiffs did achieve an appreciable benefit, even if it was shortlived. The plaintiffs sought and obtained a permanent injunction that prevented the
Forest Service from moving forward with or implementing the Project from March
25, 2012, when the injunction was issued, to June 25, 2012, when the fire started
in the Project Area. As noted above, Project implementation was set to begin on
April 1, 2012.
If anything, the equities weigh in favor of the plaintiffs. They incurred fees
throughout the course of this mostly successful litigation, and they should not be
denied those fees merely by the happenstance of a wildfire. The fact that litigation
becomes moot does not necessarily imply that an award of attorney’s fees under
the Equal Access to Justice Act are precluded. See e.g. UFO Chuting of Hawaii,
Inc., 508 F.3d 1189.
Since there are no special circumstances and the Forest Service’s positions
were not substantially justified, the plaintiffs are entitled to their attorney’s fees
under the Equal Access to Justice Act.
Amount of attorney’s fees
When a court awards attorney’s fees, it must “provide a concise but clear
explanation of its reasons for the fee award.” Hensley v. Eckerhart, 461 U.S. 424,
437 (1983). The lodestar method provides “the most useful starting point for
determining the amount of a reasonable fee . . . .” Id. at 433. That calculation
requires a court to multiply the number of hours reasonably expended on the
litigation by a reasonable hourly rate. Id. The Forest Service insists that the hourly
rates and the number of hours claimed by the plaintiffs are both excessive. That
position is justified to a limited extent.
A court may award fees under the Equal Access to Justice Act in excess of
$125 per hour only if “the cost of living or a special factor . . . justifies a higher
fee.” 28 U.S.C. § 2412(d)(2)(A). The Ninth Circuit publishes a schedule of hourly
rates adjusted for cost of living. See United States Court of Appeals for the Ninth
Circuit, Statutory Maximum Rates Under the Equal Access to Justice Act,
December 18, 2012). Those rates are: $183.73 for work performed in 2012,
$180.59 for work performed in 2011, and $175.06 for work performed in 2010.
These rates may be further increased if a “special factor . . . justifies a higher fee.”
28 U.S.C. § 2412(d)(2)(A).
The plaintiffs claim that the Ninth Circuit previously applied an enhanced
rate to Mr. Bechtold’s and Ms. Smith’s hourly rates in a similar case based on
special factors. That case is Hapner v. Tidwell, CV 08–92–M–DWM (D. Mont.).
The rates that the plaintiffs point to appear in the Ninth Circuit Appellate
Commissioner’s May 22, 2012 order. (See Hapner, Ex. 1, doc. 51-1.) While
binding between the parties in Hapner, the Appellate Commissioner’s decision has
no precedential effect in this case or future cases. See Ninth Cir. R. 33-1, cmt. c.
Nevertheless, it has some value.
Hapner originated in this Court, and it was a very similar case to this one,
involving similar issues and law. Mr. Bechtold, who co-represents the plaintiffs in
this case, co-represented the plaintiffs in Hapner, as did Ms. Smith.
The Commissioner in Hapner provided a detailed analysis of why he
believed special factors were present. He concluded that Mr. Bechtold and Ms.
Smith possessed distinctive knowledge and specialized skill in environmental law
and that such knowledge and skill was needed for the litigation and was not
available elsewhere at the statutory rate. (See Hapner, Ex. 1, doc. 51-1 at 7 (citing
Nadarajah, 569 F.3d at 912).) The Commissioner pointed to Mr. Bechtold’s and
Ms. Smith’s specialized education and previous experience in the environmental
and natural resource fields. He approved rates of $190 for Ms. Smith’s district
court representation in 2009, $225 for her appellate representation in 2010, $250
for Mr. Bechtold’s district court representation in 2009, and $350 for his appellate
representation in 2010. The Forest Service did not dispute that: (1) Ms. Smith and
Mr. Bechtold were entitled to enhanced fees and (2) that the rates above were in
line with prevailing market rates.
The Commissioner’s analysis is ostensibly persuasive, so the
Commissioner’s figures are used as a starting point for the award here. In this
case, Mr. Bechtold and Ms. Smith want to apply the following rates:
Mr. Bechtold and Ms. Smith support their request with their declarations, as well
as declarations from two experienced practitioners of environmental law in
Montana: Matthew Bishop and Jack Tuholske. Those declarations tend to show
that there were no attorneys available to the plaintiffs in this case at the statutory
The Forest Service claims that these rates are unreasonable for two primary
reasons. First, the Service argues that the rates should be based on a March 31,
2009 order from this Court in Hapner. There, this Court awarded attorney’s fees at
a rate of $175 per hour for Mr. Bechtold and $115 per hour for Ms. Smith. But, as
the plaintiffs correctly argue and the Appellate Commissioner explained, in his
view this Court miscalculated those rates. (See Hapner, Ex. 1, doc. 51-1 at 13–15.)
Second, the Forest Service argues that the Court should not apply an
enhanced appellate rate because there was no merits briefing or oral argument
before the Ninth Circuit. Here they are right. The plaintiffs have not shown that
there were any filings at the Ninth Circuit that required any specialized
knowledge. Consequently the hourly rate that applies is $183.73 to Mr. Bechtold
and Ms. Smith’s appellate work.
The Forest Service filed two declarations in support of its arguments, but
one of the declarations is more than four-and-a-half years old and the other is
nearly four years old. (See docs. 58-3 and 58-4.) Neither of the affidavits have
anything to do with this litigation, and they are outdated on their face. Nor are they
old enough to qualify as ancient documents. Rule 803(16) F. R. Evid. A party
opposing an attorney’s fee award must come forward with affidavits or other
evidence of its own regarding legal rates in the community. United Steelworkers of
Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). “‘In the absence of
opposing evidence, the proposed rates are presumed reasonable.’” Velez v. Wynne,
220 Fed. Appx. 512 (9th Cir. Jan. 29, 2007) (quoting Cortes v. Metro. Life Ins.
Co., 380 F. Supp. 2d 1125, 1129 (C.D. Cal. 2005)). Here, the Forest Service has
provided only stale, unhelpful, affidavits.
For this case the following rates apply to the plaintiffs’ attorney’s fees
The Forest Service argues that any attorney’s fee award should be reduced
for several reasons: (1) the Court should not award fees for claims on which the
plaintiffs did not prevail, (2) the Court should not award fees for work done in
opposing the Service’s motion to strike, and (3) the Court should deny or reduce a
“fees on fees” award. The Forest Service is partly correct in this argument.
The gold standard for analyzing the reasonableness of an attorney’s fees
award under the Equal Access to Justice Act is the U.S. Supreme Court’s decision
in Hensley, 461 U.S. 424. Costa v. Commr. of Social Sec. Admin., 690 F.3d 1132,
1135 (9th Cir. 2012) (“This court applies the principles set forth in Hensley—and
other cases interpreting 42 U.S.C. § 1988—to determine what constitutes a
reasonable fee award under the EAJA.” (citation omitted)). The Supreme Court
expressly held in Hensley that when a plaintiff has obtained “excellent results” a
court must award attorney’s fees for all claims—even those that were
unsuccessful—if the claims are related to the result. Hensley, 461 U.S. at 435;
accord Fox v. Vice, 131 S. Ct. 2205, 2214 (2011). In other words, the focus of the
inquiry is the result that the plaintiff obtained, not the specific claims on which it
prevailed. Id. A court, though, should not award attorney’s fees for claims that not
related in fact or law to the result. Id.
Claims under NFMA and NEPA
Here, all of the plaintiffs’ claims under NEPA and NFMA are related. Some
of the claims involved different species and different management standards, but
they sought the same result—an injunction enjoining the Project. And they
involved the same set of underlying facts and the same legal frameworks. The fact
that the plaintiffs prevailed on only some of their NEPA and NFMA claims does
not preclude an attorney’s fees award for all of those claims. Id.
Claims under the Appeals Reform Act and the Endangered
The plaintiffs also advanced claims under the Appeals Reform Act and the
Endangered Species Act (“ESA”), but they abandoned both at the summary
As to the Appeals Reform Act, the plaintiffs claimed that “The Forest
Service violate[d] the Appeals Reform Act regulations by allowing Plaintiffs’
administrative appeals to be decided by an officer subordinate to the officer
required by the regulations.” (Second Amended Complaint, doc. 9 at 24–28.) The
plaintiffs abandoned this claim at the summary judgment stage. (See Summary
Judgment Order, doc. 36–37 n.2.) Even so, that claim is unrelated to the result that
the plaintiffs obtained in this case. The claim is based on distinct facts and law that
have nothing to do with the plaintiffs’ successful claims. The plaintiffs do not
challenge the Forest Service’s assertion that their Appeals Reform Act claim is
unrelated. The plaintiffs are not entitled to fees for this claim.
The plaintiffs also abandoned their ESA claims at the summary judgment
stage. (See Summary Judgment Order, doc. 36–37 n.2.) The Forest Service argues
that these claims are unrelated and, even if they were related, fees are not available
for them under the Equal Access to Justice Act. The plaintiffs do not dispute either
of these contentions.
Attorney’s fees for ESA claims are not expressly governed by the Equal
Access to Justice Act because the ESA itself contains an attorney’s fees provision.
That being said, the Ninth Circuit applies the Equal Access to Justice Act standard
to ESA claims. Marbled Murrelet v. Babbitt, 182 F.3d 1091 (9th Cir. 1999), cert.
denied, 528 U.S. 1115 (2000); see generally S. Yuba River Citizens League &
Friends of the River v. Natl. Marine Fisheries Serv., 2012 WL 1038131, at *2–*4
(E.D. Cal. Mar. 27, 2012).2
Applying the Equal Access to Justice Act standard, the Court does not
award attorney’s fees for the ESA claims because they are not related to the result
that the plaintiffs obtained. The plaintiffs alleged in their complaint that both the
Project and the Forest Plan violate the ESA. In particular, they claimed that the
There is some dispute as to whether the Ninth Circuit has read in an
additional “substantial contribution” requirement for ESA claims—i.e., attorney’s
fees are appropriate only if the plaintiff “contributed substantially to the goals of
the ESA.” See generally S. Yuba River Citizens League, 2012 WL 1038131, at
*2–*4. The Court need not resolve whether that requirement applies, though,
because the ESA claims are not related to the result that the plaintiffs achieved and
attorney’s fees are not appropriate, regardless of whether the “substantial
contribution” requirement applies.
U.S. Fish and Wildlife Service’s cumulative effects analysis for the Project was
incomplete and that both the Fish and Wildlife Service and the Forest Service
failed to consult and prepare a number of required documents for the Custer Forest
Plan. The plaintiffs voluntarily abandoned these claims at the summary judgment
stage. See Native Ecosystems Council, 848 F. Supp. 2d at 1210 n.1. And the merits
of these claims have nothing to do with the result that the plaintiffs obtained. As
such there is no award of attorney’s fees for the Endangered Species Act claims.
The Forest Service’s motion to strike
The Forest Service also claims that the plaintiffs should not be compensated
for their work in opposing the Service’s motion to strike the plaintiffs’ 15
summary judgment exhibits. The plaintiffs, on the other hand, argue that they
should be compensated for this work, even though the Court granted the Service’s
motion and struck the exhibits.
The plaintiffs claim: “The Ninth Circuit holds that . . . a plaintiff should be
compensated for time expended on unsuccessful motions en route to an ultimate
success on the merits because ‘[l]awsuits usually involve many reasonably
disputed issues and a lawyer who takes on only those battles he is certain of
winning is probably not serving his client vigorously enough; losing is part of
winning.’ Cabrales v. Co. of L.A., 935 F.2d 1050, 1053 (9th Cir. 1991).” (Pls.’
Reply Br., doc. 61 at 15.)
There are a several problems with the plaintiffs’ claims. First, the plaintiffs
did not file an “unsuccessful motion.” They attached several extra-record exhibits
to their summary judgment brief without moving to supplement the record.
Second, as was explained in the summary judgment order, the plaintiffs were not
permitted to attach these exhibits as an end run around the rules governing
supplementation. This was not a “reasonably disputed issue[ ].” See Cabrales, 935
F.2d at 1053. Third, in Cabrales, the Ninth Circuit held only that “[A] plaintiff
who is unsuccessful at a stage of litigation that was a necessary step to her
ultimate victory is entitled to attorney’s fees even for the unsuccessful stage.” Id.;
see also id. (“If a plaintiff ultimately wins on a particular claim, she is entitled to
all attorney’s fees reasonably expended in pursuing that claim—even though she
may have suffered some adverse rulings.”) Improperly attaching exhibits to a
summary judgment brief was hardly a “necessary step” to the plaintiffs’ “ultimate
victory” on the issues upon which they prevailed. See id. And, unlike the plaintiffs
in Cabrales, the plaintiffs here did not “ultimately win[ ]” on the particular
issue—i.e., the motion to strike—that resulted in an adverse ruling.
There is no award of attorney’s fees for the plaintiffs’ work in opposing the
Forest Service’s motion to strike.
Finally, the Forest Service argues the Court should reduce or deny
attorney’s fees for the plaintiffs’ work on their attorney’s fees petition. The
Service argues that the plaintiffs are not prevailing parties and, even assuming
they are, the “fees-on-fees” award “should be reduced by the proportion of
attorneys’ fees actually awarded on the underlying litigation to attorneys’ fees
requested.” (Defs.’ Response Br., doc. 58 at 37 (citing Thompson v. Gomez, 45
F.3d 1365, 1367–68 (9th Cir. 1995); Luna v. Hoa Trung Vo., 2011 WL 2078004 at
*11–12 (E.D. Cal. May 25, 2011)).)
As discussed above, the plaintiffs are, in fact, prevailing parties for purposes
of the attorney’s fees award. So the Forest Service’s first argument fails.
As to the second argument—that the fees-on-fees award should be
proportionally reduced—the Service is correct. The Ninth Circuit holds that an
award for fees on fees should be proportionally reduced in accordance with the
fees awarded to the plaintiffs. In other words, if the Court discounts the plaintiffs’
merits fees request by 30%, then it should discount the fees on fees award by 30%.
See Thompson, 45 F.3d at 1367–68.
The plaintiffs, in their supplemental affidavit, are ordered to provide a
proposed calculation of this discount.
Here the plaintiffs are awarded their attorney’s fees, but not the amount that
they request. Specifically excluded are any fees associated with (1) the Appeals
Reform Act claim, (2) the ESA claims, and (3) the motion to strike. The plaintiffs
have not specifically identified how many hours were spent on the Appeals
Reform Act and ESA claims. The plaintiffs must submit a supplemental affidavit
deducting those hours and then provide a proposed discount of the fees-on-fee
For purposes of its supplemental affidavit, the plaintiffs must calculate the
revised fee award using the following rates:
IT IS ORDERED that the plaintiffs shall file their supplemental affidavit,
consistent with this order, no later than 14 days after the date of this order.
IT IS FURTHER ORDERED that the defendants shall file their
supplemental response no later than 14 days after the plaintiffs file their
Dated this 4th day of February 2013.