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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 SOUTH YUBA RIVER CITIZENS LEAGUE and FRIENDS OF THE RIVER, NO. CIV. S-06-2845 LKK/JFM 13 Plaintiffs, 14 v. O R D E R 15 16 NATIONAL MARINE FISHERIES SERVICE, et al., Defendants. 17 / 18 19 Pending before the court is a motion for attorneys fees. ECF 20 No. 407. Plaintiffs seek fees and costs for their work challenging 21 a Biological Opinion issued by the National Marine Fisheries 22 Service related to two dams on the South Yuba River operated by the 23 Army Corps of Engineers. Plaintiffs seek fees under the Equal 24 Access to Justice Act1 and under the Endangered Species’ Act. For 25 1 26 As discussed below, the defendants concede that the fee request in this case is governed by the Endangered Species Act and 1 1 the reasons stated below, plaintiffs’ motion is granted in part and 2 denied in part. 3 I. Procedural Background 4 Plaintiffs filed the operative Sixth Amended Complaint on June 5 17, 2008. ECF No. 150. The complaint alleged eleven claims for 6 relief. Of those, Claims 1 and 2, arising under the Administrative 7 Procedures Act (“APA”), had previously been dismissed as moot by 8 this court. See Sixth Amended Complaint 28:23-29:6. The remaining 9 claims included five separate Freedom of Information Act claims 10 (Claims 5, 7, 8, 10, and 11); Claim 6 against defendant Yuba County 11 Water Agency, which was bifurcated from the instant action, ECF No. 12 165; Claim 3 for violation of the APA by issuing an inadequate 13 BiOp; Claim 4 violation of the Endangered Species Act (“ESA”) for 14 “take” of listed fish species; and Claim 9 for violation of the APA 15 for 16 Sturgeon. failing to promulgate protective regulations for Green 17 The court entered summary judgment in favor of defendants on 18 the Claim 8, a FOIA claim. ECF No. 151. The remaining four FOIA 19 claims were dismissed pursuant to stipulated settlement approved 20 by the court. ECF No. 170. The parties reached a settlement 21 agreement as to attorney’s fees and costs on all FOIA claims. ECF 22 No. 182. In the settlement agreement, NMFS agreed to pay counsel 23 for SYRCL $89,236 in attorney’s fees and costs for the FOIA claims. 24 The agreement provides that the payment fully satisfied any claim 25 26 not the EAJA. 2 1 for FOIA attorneys fees by plaintiffs in thie case. Id. 2 Claim 9 was dismissed as moot after the NMFS promulgated a 3 rule specifying the protection owed to Green Sturgeon. ECF No. 316. 4 Thus, the only claims adjudicated on the merits were Claims 5 3 6 challenged the conclusions reached in a Biological Opinion issued 7 by National Marine Fishery Service. In July 2010, this court held 8 that government had acted arbitrarily and capriciously in issuing 9 the Biological Opinion. ECF No. 316. In April 2011 the matter was 10 remanded to the National Marine Fishery Service to prepare a new 11 Biological Opinion consistent with the court’s July Order by 12 December 12, 2011. ECF No. 398. In July 2011, this court issued a 13 further remedial order, adopting some of plaintiffs’ requested 14 interim injunctive measures. ECF No. 402. and 4. With respect to Claim 3, plaintiffs successfully 15 With respect to Claim 4, the court granted summary judgment 16 to defendants on the question of whether defendants were causing 17 “take” 18 Incidental Take Statement. See ECF No. 316 at 71. After further 19 briefing, 20 prudentially moot. ECF No. 343. Plaintiffs filed a motion for 21 reconsideration of that order, which this court denied on February 22 13, 2012. ECF No. 462. of listed the species court without dismissed the the protection remainder of of a Claim valid 4 as 23 Plaintiffs’ initial fee motion sought approximately $2.33 24 million in attorneys fees, $40,094 in expert costs, and $11,752.03 25 in other costs. Defendants sought to reduce the total award by 90%. 26 The court ordered defendant to file an additional brief containing 3 1 objections to individual entries in plaintiff’s billing records. 2 Defendants did so by filing a brief objecting to 3 specific line items, but continuing to request a 90% reduction. 4 Plaintiffs have filed a response brief. $1.1 million in 5 II. Standard for a Motion for Fees under 6 the Endangered Species Act. 7 The ESA’s fee-shifting provision is a waiver of sovereign 8 immunity. As such, it “must be strictly construed in the United 9 State’s favor.” Ardestani v. INS, 502 U.S. 129, 137 (1991). It is 10 the plaintiff’s burden to show both that the hourly fee requested 11 is reasonable, and that the number of hours spent is reasonable. 12 Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). 13 Because the district court’s “familiarity with the case allows 14 it to distinguish reasonable from excessive fee requests,” Moreno 15 v. City of Sacramento, 534 F.3d 1106, 1116 (9th Cir. 2008), 16 district courts have “a great deal of discretion in determining the 17 reasonableness of the fee.” In re Smith, 586 F.3d 1169, 1173-1174 18 (9th Cir. 2009). A district court judge may “impose a small 19 reduction, no greater than 10 percent--a ‘haircut’--based on its 20 exercise of discretion and without a more specific explanation. 21 Moreno, 534 F.3d at 1112. 22 In cases such as this one “where a voluminous fee application 23 is filed, in exercising its billing judgment the district court is 24 not required to set forth an hour-by-hour analysis of the fee 25 request. It has been recognized that in such cases, the district 26 court has the authority to make across-the-board percentage cuts 4 1 in the number of hours claimed as a practical means of trimming the 2 fat from a fee application. However, irrespective of its obvious 3 utility, the percentage or, 'meat-axe approach,' nonetheless has 4 been criticized when employed in cases where the fee applications 5 at issue involved substantial amounts of money and where district 6 courts failed adequately to articulate their reasons for selecting 7 specific percentage deductions." In re Smith, 586 at 1173-1174 8 (internal quotation marks and citation omitted). 9 10 III. Analysis A. Whether Plaintiffs’ request is governed by the ESA or EAJA. 11 Plaintiffs’ fee request is pursuant to the Endangered Species 12 Act citizen suit provision, 16 U.S.C. § 1540(g)(4), or in the 13 alternative to the Equal Access to Justice Act. Under the EAJA, 14 plantiffs would be entitled to fees upon a showing that (1) the 15 party seeking fees is the prevailing party; (2) the government has 16 not met its burden of showing that its positions were substantially 17 justified or that special circumstances make an award unjust; and 18 (3) the requested fees and costs are reasonable. 19 Milner, 583 F.3d 1174, 1196 (9th Cir. 2009) (citing Perez-Arellano 20 v. Smith, 279 F.3d 791, 793 (9th Cir. 2002)). The EAJA caps hourly 21 rates at $150, with a cost of living adjustment. Under the ESA’s 22 citizen suit provision, a court may award fees when the plaintiffs 23 have achieved some degree of success on the merits, and contributed 24 substantially to the goals of the ESA. See, e.g., Home Builders 25 Ass'n v. United States Fish & Wildlife Serv., 2007 U.S. Dist. LEXIS 26 94339 (E.D. Cal. 2007)(Shub). There is no statutory cap on fees 5 United States v. 1 under the ESA. Instead, fees are calculated according to the 2 lodestar. 3 In this case, plaintiffs argue, and defendants apparently 4 concede, that plaintiffs’ fee request is governed by the Endangered 5 Species Act, rather than the EAJA. According to defendants, “while 6 the [APA] claims against NMFS BiOP, standing alone, would be 7 governed by the. . . EAJA, . . . the relief sought against the 8 Corps is governed by the ESA citizen suit provision. . . Thus, for 9 this opposition, Federal Defendants analyze this fee claim under 10 the ESA citizen suit fee-shifting provisions.” Defs.’ Opp’n 3:29- 11 27. 12 Under the Endangered Species’ Act, a district court “may award 13 costs of litigation (including reasonable attorney and expert 14 witness fees) to any party, whenever the court determines such 15 award 16 attorney's fees provisions of the ESA and the Civil Rights Act of 17 1964 likewise have a common purpose,” courts “apply to the ESA the 18 civil rights standard for awarding fees to prevailing parties.” 19 Marbled 20 Cir.1999)(cert. denied 528 U.S. 1115 (2000)). Thus, an award of 21 attorney’s fees is appropriate when the plaintiffs have achieved 22 some degree of success on the merits. Ruckelshaus v. Sierra Club, 23 463 U.S. 680, 684 (1983); Marbled Murrelet, 182 F. 3d at 1095 (“the 24 Supreme Court has read a prevailing party requirement into the 25 ESA”). 26 is appropriate.” Murrelet v. 16 U.S.C. Babbitt, § 182 1540(g)(4). F.3d 1091, Since 1095 “The (9th Additionally, some district courts have required the plaintiff 6 1 to have contributed substantially to the goals of the ESA. See 2 e.g., Home Builders Ass'n v. United States Fish & Wildlife Serv., 3 2007 U.S. Dist. LEXIS 94339 (E.D. Cal. 2007)(Shub) affirmed by Home 4 Builders Ass'n of N. Cal. v. United States Fish & Wildlife Serv., 5 616 F.3d 983 (9th Cir. 2010). The “substantial contribution” 6 requirement was set forth in 7 Dist. v. Sec'y of the Interior, 748 F.2d 523, 524 (9th Cir. 1984), 8 which was later overruled on other grounds by Marbled Murrelet 182 9 F.3d 1091 at 1094-95 (9th Cir. 1999). The Ninth Circuit has not whether contribution decided 11 requirement has been abandoned. See e.g., Envtl. Prot. Info. Ctr. 12 v. Pac. Lumber Co., 103 Fed. Appx. 627, 629 (9th Cir. 2004)(“We 13 need not resolve this doctrinal dispute, because [the] motion for 14 attorneys fees satisfied both standards.”). In recent cases, the 15 Ninth 16 requirement from its attorneys’ fees analysis. In a case filed 17 under the Clean Water Act,2 the Ninth Circuit characterized the 18 proper attorneys fees analysis to be applied by the district 19 courts: “"First, the court must find that the fee applicant is a 20 'prevailing or substantially prevailing party.' Second, it must 21 find that an award of attorney fees is 'appropriate.' An award of 22 attorney fees may not be appropriate where ‘special circumstances’ 23 are found.” Resurrection Bay Conservation Alliance v. City of has Carson-Tucker substantial 10 Circuit the Carson-Truckee Water Conservancy omitted the “substantial contribution” 24 2 25 26 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). 7 1 Seward, 640 F.3d 1087, 1091 (9th Cir. 2011)(internal citations 2 omitted). 3 requirements 4 “achieved some success in this case. . . Thus, they are eligible 5 for fees.” Defs.’ Opp’n 5:21-25. The remaining dispute, therefore, 6 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 7 Additionally, the Ninth Circuit has held that plaintiffs may 8 recover under the “catalyst theory” in ESA cases. Ass'n of Cal. 9 Water Agencies v. Evans, 386 F.3d 879, 885 (9th Cir. 2004). The 10 catalyst theory allows attorneys fees to be awarded to a 11 “plaintiff who, by simply filing a nonfrivolous but nonetheless 12 potentially meritless lawsuit (it will never be determined), has 13 reached the 'sought-after destination' without obtaining 14 judicial relief." Id. at 884. any 15 Here, plaintiffs have prevailed on the merits of at least some 16 of their claims, and achieved a remedial order requiring a new 17 Biological Opinion and interim remedial measures to protect listed 18 species during the remand period. The court therefore concludes 19 that plaintiffs are entitled to fees under the Endangered Species 20 Act. 21 B. The Fee Amount 22 Having established that plaintiffs meet the requirement to 23 obtain some fees under the Endangered Species Act, the court now 24 considers the amount of fees and costs that are reasonable. “The 25 usual approach to evaluating the reasonableness of an attorney fee 26 award requires application of the 8 lodestar method and Kerr 1 factors.” Resurrection Bay Conservation Alliance v. City of Seward, 2 640 F.3d 1087, 1095 (9th Cir. 2011). The lodestar calculation 3 involves multiplying the number of hours reasonably expended on the 4 litigation times a reasonably hourly rate. 5 factors are: 6 7 8 9 10 11 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. 14 1975). 15 i. Reasonableness of the Hours Expended 16 Plaintiffs claim to have spent approximately 5,800 hours of 17 attorney time and 97 hours of paralegal time on the litigation in 18 this case. Sproul Decl. ¶ 67, ECF No. 407-2.5 Plaintiffs are 19 entitled to fees spent on claims on which they prevailed, as well 20 21 22 3 This factor has been deemed duplicative of the “reasonable hours” component of the lodestar calculation. 4 23 24 25 26 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. 9 1 as on claims “related” to the prevailing claims. A district court 2 may award fees for time spent on unsuccessful claims when a the 3 claims for relief involve a “common core of facts or are based on 4 related legal theories.” Hensley v. Eckerhart, 461 U.S. 424, 434 5 (U.S. 1983). In such cases, the court “should focus on the 6 significance of the overall relief obtained by the plaintiff in 7 relation to the hours reasonably expended on the litigation. Where 8 a plaintiff has obtained excellent results, his attorney should 9 recover a fully compensatory fee.” Id. Plaintiffs assert and 10 defendants agree that “Plaintiff’s claims and requested relief all 11 arose out of the same factual basis–the challenged BiOp.” Defs.’ 12 Opp’n 3. Looking at the result obtained by plaintiffs, the court 13 agrees that Claims 1, 2, 3, 4, and 9 are related within the Hensley 14 meaning, and plaintiffs may recover for work performed on these 15 claims. As noted, plaintiffs do not seek to recover for time spent 16 on their FOIA claims, nor on the claim against YWCA, which was 17 bifurcated from this case. 18 With respect to Claim 9, plaintiffs are also entitled to 19 attorneys fees under the catalyst theory. Claim 9 sought to compel 20 the defendants to promulgate regulations to protect green sturgeon, 21 as required by § 4(d) of the Endangered Species Act. The court 22 ultimately dismissed this claim as moot, after the regulations were 23 promulgated. 24 The court disagrees with plaintiffs, however, that all 5,800 25 hours billed for these claims are reasonable. While the “court is 26 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 2 areas in which plaintiffs’ submitted hours are unreasonable, 3 warranting a reduction beyond the 10% “haircut.” The court finds 4 that plaintiffs’ hours should be reduced by 20%. 5 Plaintiff has billed some time spent traveling at the full 6 hourly rate. The court finds that it is reasonable to reduce hours 7 billed for travel time by half. See e.g. Watkins v. Fordice, 7 F.3d 8 453, 459 (5th Cir. 1993)(affirming a reduction by half of the 9 hourly rate for time billed for travel, where the Voting Rights Act 10 provided for “reasonable fees” to be awarded to the prevailing 11 party.). Plaintiffs’ submitted timesheets do not separate travel 12 time from time spent on another task. For example, on March 17, 13 2009, Orion billed 16 hours to “Attend and defend deposition of B. 14 Cavallo; travel to and from Sacramento for same.” The court cannot 15 discern which portion of the 16 hours was spent traveling and 16 therefore subject to a 50% reduction. 17 Defendants argue that they should not be made to pay 18 attorneys fees for clerical tasks performed by attorneys. Courts 19 may 20 included in the hourly rate. See, e.g., Martinez v. Thrifty 21 Payless, Inc., No. 02-cv-745, ECF No. 68; FREVACH v. MULTNOMAH 22 COUNTY, 2001 U.S. Dist. LEXIS 22255 (D. Or. 2001). Defendants have 23 identified what they claim are 654 hours of clerical work billed 24 at attorney rates, for a total of $219,276. However, upon review 25 of the exhibits to defendant’s supplemental brief, it appears to 26 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 2 bill, though the court cannot discern precisely how much time that 3 is. 4 Defendants object to time plaintiffs billed for phone calls 5 and conferences with each other. Defendants contend that: “no 6 reasonable client would pay for the numerous occasions in which 7 three or more attorneys each billed time to discuss things like 8 ‘strategy,’ or each other’s legal research.” Opp’n 9. Defendants 9 assert that 964 such hours are billed, for a total of $425,975. 10 Defendants claim that time spent in conference with multiple 11 attorneys can be billed to one attorney only. Key Bank Nat'l Ass'n 12 v. Van Noy, 598 F. Supp. 2d 1160, 1166 (D. Or. 2009), cited in 13 defendants’ opposition, is distinguished because in that case, the 14 court concluded that one attorney could have performed all of the 15 work on the case, and therefore that billing for multiple attorneys 16 to conference about the case was unreasonable. Here, the court has 17 made no such conclusion, and defendants have not argued for one. 18 Although defendants have not identified specific conferences for 19 which it was unreasonable to have multiple attorneys present, the 20 court finds that plaintiffs’ practice of billing for each attorney 21 present at a conference supports the overall 20% fee reduction. 22 ii. Reasonableness of the Hourly Rates 23 a. The relevant legal community 24 Plaintiffs contend that they are entitled to hourly rates 25 based on prevailing rates in San 26 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 2 outside the forum may be used if local counsel was unwilling or 3 unable to do the work because they “lack the degree of experience, 4 expertise, or specialization required to handle properly the case.” 5 Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992). See also 6 L.H. v. Schwarzenegger, 645 F. Supp. 2d 888 (E.D. Cal. 2009). 7 In this case, plaintiffs South Yuba Citizens League sent 8 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 12 may only apply if local counsel is unwilling because they lack the 13 degree of experience, expertise or specialization, Opp’n. 19-20, 14 and not unwilling because of the fee arrangement. The court finds 15 this reading of Gates to be untenable, and contrary to the purpose 16 of the fee-shift provision of the Endangered Species’ Act. Under 17 defendants’ reading, it would be difficult for any plaintiffs who 18 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 13 407-3 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. 25 [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. 4 DATED: March 26, 2012. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 15

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