South Yuba River Citizens League et al v. National Marine Fisheries Service et al

Filing 469

ORDER signed by Judge Lawrence K. Karlton on 3/26/12 ORDERING that 1 Plaintiffs' 407 motion for attorneys' fees and costs is GRANTED in part and DENIED in part. Plaintiffs are entitled to recover fees and costs in the amount of $1,875,951.20 from the federal defendants. This reflects a 20% reduction in the loadstar amount requested by plaintiffs. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SOUTH YUBA RIVER CITIZENS
LEAGUE and FRIENDS OF THE
RIVER,
NO. CIV. S-06-2845 LKK/JFM

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Plaintiffs,
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v.

O R D E R

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NATIONAL MARINE FISHERIES
SERVICE, et al.,
Defendants.

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/

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Pending before the court is a motion for attorneys fees. ECF

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No. 407. Plaintiffs seek fees and costs for their work challenging

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a Biological Opinion issued by the National Marine Fisheries

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Service related to two dams on the South Yuba River operated by the

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Army Corps of Engineers. Plaintiffs seek fees under the Equal

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Access to Justice Act1 and under the Endangered Species’ Act. For

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1

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As discussed below, the defendants concede that the fee
request in this case is governed by the Endangered Species Act and
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the reasons stated below, plaintiffs’ motion is granted in part and

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denied in part.

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I. Procedural Background

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Plaintiffs filed the operative Sixth Amended Complaint on June

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17, 2008. ECF No. 150. The complaint alleged eleven claims for

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relief. Of those, Claims 1 and 2, arising under the Administrative

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Procedures Act (“APA”), had previously been dismissed as moot by

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this court. See Sixth Amended Complaint 28:23-29:6. The remaining

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claims included five separate Freedom of Information Act claims

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(Claims 5, 7, 8, 10, and 11); Claim 6 against defendant Yuba County

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Water Agency, which was bifurcated from the instant action, ECF No.

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165; Claim 3 for violation of the APA by issuing an inadequate

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BiOp; Claim 4 violation of the Endangered Species Act (“ESA”) for

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“take” of listed fish species; and Claim 9 for violation of the APA

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for

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Sturgeon.

failing

to

promulgate

protective

regulations

for

Green

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The court entered summary judgment in favor of defendants on

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the Claim 8, a FOIA claim. ECF No. 151. The remaining four FOIA

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claims were dismissed pursuant to stipulated settlement approved

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by the court. ECF No. 170. The parties reached a settlement

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agreement as to attorney’s fees and costs on all FOIA claims. ECF

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No. 182. In the settlement agreement, NMFS agreed to pay counsel

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for SYRCL $89,236 in attorney’s fees and costs for the FOIA claims.

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The agreement provides that the payment fully satisfied any claim

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not the EAJA.
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for FOIA attorneys fees by plaintiffs in thie case. Id.

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Claim 9 was dismissed as moot after the NMFS promulgated a

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rule specifying the protection owed to Green Sturgeon. ECF No. 316.

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Thus, the only claims adjudicated on the merits were Claims

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3

6

challenged the conclusions reached in a Biological Opinion issued

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by National Marine Fishery Service. In July 2010, this court held

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that government had acted arbitrarily and capriciously in issuing

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the Biological Opinion. ECF No. 316. In April 2011 the matter was

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remanded to the National Marine Fishery Service to prepare a new

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Biological Opinion consistent with the court’s July Order by

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December 12, 2011. ECF No. 398. In July 2011, this court issued a

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further remedial order, adopting some of plaintiffs’ requested

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interim injunctive measures. ECF No. 402.

and

4.

With

respect

to

Claim

3,

plaintiffs

successfully

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With respect to Claim 4, the court granted summary judgment

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to defendants on the question of whether defendants were causing

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“take”

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Incidental Take Statement. See ECF No. 316 at 71. After further

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briefing,

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prudentially moot. ECF No. 343. Plaintiffs filed a motion for

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reconsideration of that order, which this court denied on February

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13, 2012. ECF No. 462.

of

listed

the

species

court

without

dismissed

the

the

protection

remainder

of

of

a

Claim

valid

4

as

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Plaintiffs’ initial fee motion sought approximately $2.33

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million in attorneys fees, $40,094 in expert costs, and $11,752.03

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in other costs. Defendants sought to reduce the total award by 90%.

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The court ordered defendant to file an additional brief containing
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1

objections to individual entries in plaintiff’s billing records.

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Defendants did so by filing a brief objecting to

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specific line items, but continuing to request a 90% reduction.

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Plaintiffs have filed a response brief.

$1.1 million in

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II. Standard for a Motion for Fees under

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the Endangered Species Act.

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The ESA’s fee-shifting provision is a waiver of sovereign

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immunity. As such, it “must be strictly construed in the United

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State’s favor.” Ardestani v. INS, 502 U.S. 129, 137 (1991). It is

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the plaintiff’s burden to show both that the hourly fee requested

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is reasonable, and that the number of hours spent is reasonable.

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Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).

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Because the district court’s “familiarity with the case allows

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it to distinguish reasonable from excessive fee requests,” Moreno

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v. City of Sacramento, 534 F.3d 1106, 1116 (9th Cir. 2008),

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district courts have “a great deal of discretion in determining the

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reasonableness of the fee.” In re Smith, 586 F.3d 1169, 1173-1174

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(9th Cir. 2009). A district court judge may “impose a small

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reduction, no greater than 10 percent--a ‘haircut’--based on its

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exercise of discretion and without a more specific explanation.

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Moreno, 534 F.3d at 1112.

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In cases such as this one “where a voluminous fee application

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is filed, in exercising its billing judgment the district court is

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not required to set forth an hour-by-hour analysis of the fee

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request. It has been recognized that in such cases, the district

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court has the authority to make across-the-board percentage cuts
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in the number of hours claimed as a practical means of trimming the

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fat from a fee application. However, irrespective of its obvious

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utility, the percentage or, 'meat-axe approach,' nonetheless has

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been criticized when employed in cases where the fee applications

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at issue involved substantial amounts of money and where district

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courts failed adequately to articulate their reasons for selecting

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specific percentage deductions." In re Smith, 586 at 1173-1174

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(internal quotation marks and citation omitted).

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III. Analysis
A. Whether Plaintiffs’ request is governed by the ESA or EAJA.

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Plaintiffs’ fee request is pursuant to the Endangered Species

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Act citizen suit provision, 16 U.S.C. § 1540(g)(4), or in the

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alternative to the Equal Access to Justice Act. Under the EAJA,

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plantiffs would be entitled to fees upon a showing that (1) the

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party seeking fees is the prevailing party; (2) the government has

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not met its burden of showing that its positions were substantially

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justified or that special circumstances make an award unjust; and

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(3) the requested fees and costs are reasonable.

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Milner, 583 F.3d 1174, 1196 (9th Cir. 2009) (citing Perez-Arellano

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v. Smith, 279 F.3d 791, 793 (9th Cir. 2002)). The EAJA caps hourly

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rates at $150, with a cost of living adjustment. Under the ESA’s

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citizen suit provision, a court may award fees when the plaintiffs

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have achieved some degree of success on the merits, and contributed

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substantially to the goals of the ESA. See, e.g., Home Builders

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Ass'n v. United States Fish & Wildlife Serv., 2007 U.S. Dist. LEXIS

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94339 (E.D. Cal. 2007)(Shub). There is no statutory cap on fees
5

United States v.

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under the ESA. Instead, fees are calculated according to the

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lodestar.

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In this case, plaintiffs argue, and defendants apparently

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concede, that plaintiffs’ fee request is governed by the Endangered

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Species Act, rather than the EAJA. According to defendants, “while

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the [APA] claims against NMFS BiOP, standing alone, would be

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governed by the. . . EAJA, . . . the relief sought against the

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Corps is governed by the ESA citizen suit provision. . . Thus, for

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this opposition, Federal Defendants analyze this fee claim under

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the ESA citizen suit fee-shifting provisions.” Defs.’ Opp’n 3:29-

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27.

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Under the Endangered Species’ Act, a district court “may award

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costs of litigation (including reasonable attorney and expert

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witness fees) to any party, whenever the court determines such

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award

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attorney's fees provisions of the ESA and the Civil Rights Act of

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1964 likewise have a common purpose,” courts “apply to the ESA the

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civil rights standard for awarding fees to prevailing parties.”

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Marbled

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Cir.1999)(cert. denied 528 U.S. 1115 (2000)). Thus, an award of

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attorney’s fees is appropriate when the plaintiffs have achieved

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some degree of success on the merits. Ruckelshaus v. Sierra Club,

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463 U.S. 680, 684 (1983); Marbled Murrelet, 182 F. 3d at 1095 (“the

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Supreme Court has read a prevailing party requirement into the

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ESA”).

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is

appropriate.”

Murrelet

v.

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U.S.C.

Babbitt,

§

182

1540(g)(4).

F.3d

1091,

Since

1095

“The

(9th

Additionally, some district courts have required the plaintiff
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to have contributed substantially to the goals of the ESA. See

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e.g., Home Builders Ass'n v. United States Fish & Wildlife Serv.,

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2007 U.S. Dist. LEXIS 94339 (E.D. Cal. 2007)(Shub) affirmed by Home

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Builders Ass'n of N. Cal. v. United States Fish & Wildlife Serv.,

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616 F.3d 983 (9th Cir. 2010). The “substantial contribution”

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requirement was set forth in

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Dist. v. Sec'y of the Interior, 748 F.2d 523, 524 (9th Cir. 1984),

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which was later overruled on other grounds by Marbled Murrelet 182

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F.3d 1091 at 1094-95 (9th Cir. 1999). The Ninth Circuit has not
whether

contribution

decided

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requirement has been abandoned. See e.g., Envtl. Prot. Info. Ctr.

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v. Pac. Lumber Co., 103 Fed. Appx. 627, 629 (9th Cir. 2004)(“We

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need not resolve this doctrinal dispute, because [the] motion for

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attorneys fees satisfied both standards.”). In recent cases, the

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Ninth

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requirement from its attorneys’ fees analysis. In a case filed

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under the Clean Water Act,2 the Ninth Circuit characterized the

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proper attorneys fees analysis to be applied by the district

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courts: “"First, the court must find that the fee applicant is a

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'prevailing or substantially prevailing party.' Second, it must

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find that an award of attorney fees is 'appropriate.' An award of

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attorney fees may not be appropriate where ‘special circumstances’

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are found.” Resurrection Bay Conservation Alliance v. City of

has

Carson-Tucker

substantial

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Circuit

the

Carson-Truckee Water Conservancy

omitted

the

“substantial

contribution”

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2

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The Supreme Court has held that the attorneys fees
provisions of the Clean Water Act and the ESA are identical and
should be interpreted accordingly. Ruckelshaus v. Sierra Club, 463
U.S. 680, 691 (1983).
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1

Seward, 640 F.3d 1087, 1091 (9th Cir. 2011)(internal citations

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omitted).

3

requirements

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“achieved some success in this case. . . Thus, they are eligible

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for fees.” Defs.’ Opp’n 5:21-25. The remaining dispute, therefore,

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is over the amount of attorneys fees sought by plaintiffs.

Defendants
for

fees

concede
under

that

the

plaintiffs

ESA

because

have

met

plaintiffs

the
have

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Additionally, the Ninth Circuit has held that plaintiffs may

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recover under the “catalyst theory” in ESA cases. Ass'n of Cal.

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Water Agencies v. Evans, 386 F.3d 879, 885 (9th Cir. 2004). The

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catalyst

theory

allows

attorneys

fees

to

be

awarded

to

a

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“plaintiff who, by simply filing a nonfrivolous but nonetheless

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potentially meritless lawsuit (it will never be determined), has

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reached the 'sought-after destination' without obtaining

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judicial relief." Id. at 884.

any

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Here, plaintiffs have prevailed on the merits of at least some

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of their claims, and achieved a remedial order requiring a new

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Biological Opinion and interim remedial measures to protect listed

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species during the remand period. The court therefore concludes

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that plaintiffs are entitled to fees under the Endangered Species

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Act.

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B. The Fee Amount

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Having established that plaintiffs meet the requirement to

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obtain some fees under the Endangered Species Act, the court now

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considers the amount of fees and costs that are reasonable. “The

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usual approach to evaluating the reasonableness of an attorney fee

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award

requires

application

of

the
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lodestar

method

and

Kerr

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factors.” Resurrection Bay Conservation Alliance v. City of Seward,

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640 F.3d 1087, 1095 (9th Cir. 2011). The lodestar calculation

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involves multiplying the number of hours reasonably expended on the

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litigation times a reasonably hourly rate.

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factors are:

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9
10
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The so-called Kerr

(1) the time and labor required,3 (2) the novelty and
difficulty of the questions involved, (3) the skill
requisite to perform the legal service properly, (4) the
preclusion of other employment by the attorney due to
acceptance of the case, (5) the customary fee, (6) whether
the fee is fixed or contingent,4 (7) time limitations
imposed by the client or the circumstances, (8) the amount
involved and the results obtained, (9) the experience,
reputation, and ability of the attorneys, (10) the
"undesirability" of the case, (11) the nature and length of
the professional relationship with the client, and (12)
awards in similar cases.

12
13

Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.

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1975).

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i. Reasonableness of the Hours Expended

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Plaintiffs claim to have spent approximately 5,800 hours of

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attorney time and 97 hours of paralegal time on the litigation in

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this case. Sproul Decl. ¶ 67, ECF No. 407-2.5 Plaintiffs are

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entitled to fees spent on claims on which they prevailed, as well

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22

3

This factor has been deemed duplicative of the “reasonable
hours” component of the lodestar calculation.
4

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25
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This factor has been deemed irrelevant by the Supreme Court.
See City of Burlington v. Dague, 112 S.Ct. 2638 (1992).
5

Plaintiffs do not seek recovery of attorneys fees for their
FOIA claims, since the parties reached a settlement on those
claims, including attorneys fees. Additionally, plaintiffs do not
seek fees for time spend litigating Claim 6, which was bifurcated
from the case at bar.
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as on claims “related” to the prevailing claims. A district court

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may award fees for time spent on unsuccessful claims when a the

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claims for relief involve a “common core of facts or are based on

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related legal theories.” Hensley v. Eckerhart, 461 U.S. 424, 434

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(U.S. 1983). In such cases, the court “should focus on the

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significance of the overall relief obtained by the plaintiff in

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relation to the hours reasonably expended on the litigation. Where

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a plaintiff has obtained excellent results, his attorney should

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recover a fully compensatory fee.” Id. Plaintiffs assert and

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defendants agree that “Plaintiff’s claims and requested relief all

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arose out of the same factual basis–the challenged BiOp.” Defs.’

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Opp’n 3. Looking at the result obtained by plaintiffs, the court

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agrees that Claims 1, 2, 3, 4, and 9 are related within the Hensley

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meaning, and plaintiffs may recover for work performed on these

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claims. As noted, plaintiffs do not seek to recover for time spent

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on their FOIA claims, nor on the claim against YWCA, which was

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bifurcated from this case.

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With respect to Claim 9, plaintiffs are also entitled to

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attorneys fees under the catalyst theory. Claim 9 sought to compel

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the defendants to promulgate regulations to protect green sturgeon,

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as required by § 4(d) of the Endangered Species Act. The court

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ultimately dismissed this claim as moot, after the regulations were

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promulgated.

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The court disagrees with plaintiffs, however, that all 5,800

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hours billed for these claims are reasonable. While the “court is

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not required to set forth an hour-by-hour analysis of the fee
10

1

request,” In re Smith, 586 at 1174, the court has identified some

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areas in which plaintiffs’ submitted hours are unreasonable,

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warranting a reduction beyond the 10% “haircut.” The court finds

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that plaintiffs’ hours should be reduced by 20%.

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Plaintiff has billed some time spent traveling at the full

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hourly rate. The court finds that it is reasonable to reduce hours

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billed for travel time by half. See e.g. Watkins v. Fordice, 7 F.3d

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453, 459 (5th Cir. 1993)(affirming a reduction by half of the

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hourly rate for time billed for travel, where the Voting Rights Act

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provided for “reasonable fees” to be awarded to the prevailing

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party.). Plaintiffs’ submitted timesheets do not separate travel

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time from time spent on another task. For example, on March 17,

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2009, Orion billed 16 hours to “Attend and defend deposition of B.

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Cavallo; travel to and from Sacramento for same.” The court cannot

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discern which portion of the 16 hours was spent traveling and

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therefore subject to a 50% reduction.

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Defendants argue that they should not be made to pay

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attorneys fees for clerical tasks performed by attorneys. Courts

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may

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included in the hourly rate. See, e.g., Martinez v. Thrifty

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Payless, Inc., No. 02-cv-745, ECF No. 68; FREVACH v. MULTNOMAH

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COUNTY, 2001 U.S. Dist. LEXIS 22255 (D. Or. 2001). Defendants have

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identified what they claim are 654 hours of clerical work billed

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at attorney rates, for a total of $219,276. However, upon review

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of the exhibits to defendant’s supplemental brief, it appears to

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the court that some of the entries that defendant characterizes as

deem

clerical

costs

to

constitute

11

overhead,

and

already

1

clerical time include time for which plaintiff could reasonably

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bill, though the court cannot discern precisely how much time that

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is.

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Defendants object to time plaintiffs billed for phone calls

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and conferences with each other. Defendants contend that: “no

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reasonable client would pay for the numerous occasions in which

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three or more attorneys each billed time to discuss things like

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‘strategy,’ or each other’s legal research.” Opp’n 9. Defendants

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assert that 964 such hours are billed, for a total of $425,975.

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Defendants claim that time spent in conference with multiple

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attorneys can be billed to one attorney only. Key Bank Nat'l Ass'n

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v. Van Noy, 598 F. Supp. 2d 1160, 1166 (D. Or. 2009), cited in

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defendants’ opposition, is distinguished because in that case, the

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court concluded that one attorney could have performed all of the

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work on the case, and therefore that billing for multiple attorneys

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to conference about the case was unreasonable. Here, the court has

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made no such conclusion, and defendants have not argued for one.

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Although defendants have not identified specific conferences for

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which it was unreasonable to have multiple attorneys present, the

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court finds that plaintiffs’ practice of billing for each attorney

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present at a conference supports the overall 20% fee reduction.

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ii. Reasonableness of the Hourly Rates

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a. The relevant legal community

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Plaintiffs contend that they are entitled to hourly rates

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based

on

prevailing

rates

in

San

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relevant community is the forum in which the district court sits.”
12

Francisco.

“Generally,

the

1

Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997). Rates from

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outside the forum may be used if local counsel was unwilling or

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unable to do the work because they “lack the degree of experience,

4

expertise, or specialization required to handle properly the case.”

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Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992). See also

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L.H. v. Schwarzenegger, 645 F. Supp. 2d 888 (E.D. Cal. 2009).

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In this case, plaintiffs South Yuba Citizens League sent

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letters to seven law firms to solicit representation. Rainey Decl.

9

2,

ECF

No.

407-19.

Environmental

Associates,

located

in

San

10

Francisco, was the only organization willing to take the case on

11

a fee-recovery basis. Id. Defendants argue that San Francisco rates

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may only apply if local counsel is unwilling because they lack the

13

degree of experience, expertise or specialization, Opp’n. 19-20,

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and not unwilling because of the fee arrangement. The court finds

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this reading of Gates to be untenable, and contrary to the purpose

16

of the fee-shift provision of the Endangered Species’ Act. Under

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defendants’ reading, it would be difficult for any plaintiffs who

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lack their own resources to retain counsel, especially in secondary

19

markets where the availability of law firms willing to take cases

20

on a contingency basis is limited. Moreover, Barjon emphasizes that

21

in order to get out-of-forum rates, plaintiffs may show “proof of

22

either unwillingness or inability due to lack of experience,

23

expertise, or specialization.” 132 F.3d at 501 (emphasis in the

24

original).

25

expertise, or specialization requirement applies only to the

26

inquiry of whether local firms are able to perform the work, and

The

court

concludes

13

that

the

lack

of

experience,

1

not whether they are willing.

2

Based on the Rainey declaration, the court concludes that no

3

Sacramento counsel were available to represent plaintiffs in this

4

case, and that San Francisco rates apply.

5

Plaintiff’s stated San Francisco rates are based on the Laffey

6

Matrix, and range from $585 per hour for an attorney with 25 years

7

of experience to $315 per hour for an attorney with four years of

8

experience.

9

declarations from counsel that compare the rates with those of

Plaintiffs

attorneys

requested

in

San

rates

Francisco.

are

supported

Plaintiffs

have

by

10

comparable

also

11

submitted a declaration by Richard Pearl, an expert in court-

12

awarded attorneys fees. See Exs. 1 and 2 to Sproul Decl., ECF No

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407-3 and 407-4.

14

Plaintiffs have not, however, accounted for the fact that this

15

litigation has spanned several years. The rates given by plaintiffs

16

are based on the current experience level of each of the attorneys,

17

and not on the experience level of the attorney at the time the

18

work

19

contributes to the reasonableness of an overall 20% reduction in

20

the fee amount.

21

was

performed.

The

court

finds

that

this

discrepancy

IV. Conclusion

22

For the reasons stated herein, the court ORDERS as follows:

23

[1] Plaintiffs’ motion, ECF No. 407 is GRANTED in part

24

and DENIED in part.

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[2] Plaintiffs are entitled to recover fees and costs

26

in the amount of $1,875,951.20 from the federal
14

1

defendants. This reflects a 20% reduction in the

2

loadstar amount requested by plaintiffs.

3

IT IS SO ORDERED.

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DATED: March 26, 2012.

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