Friends of Tahoe Forest Access et al v. United States Department of Agriculture et al
Filing
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ORDER signed by Judge John A. Mendez on 4/16/2014 OVERRULING 53 Objections to 52 Bill of Costs; GRANTING the defendants' costs; AWARDING costs in the amount of $14,875.23. (Michel, G)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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FRIENDS OF TAHOE FOREST
ACCESS, et al.,
No.
12-cv-01876 JAM-CKD
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Plaintiffs,
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v.
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UNITED STATES DEPARTMENT OF
AGRICULTURE, et al.,
ORDER OVERRULING PLAINTIFFS’
OBJECTIONS TO DEFENDANTS’ BILL
OF COSTS AND AWARDING COSTS TO
DEFENDANTS
Defendants.
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This matter is before the Court on Defendants U.S.
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Department of Agriculture; Tom Vilsack, Secretary of the
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Department of Agriculture; U.S. Forest Service; Tom Tidwell,
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Chief of the U.S. Forest Service; Randy Moore, Regional Forester
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for the U.S. Forest Service’s Pacific Southwest Region; and Tom
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Quinn’s, Forest Supervisor at the Tahoe National Forest,
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(collectively “Defendants”) Bill of Costs (Doc. #52).
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Friends of Tahoe Forest Access, Webilt Four Wheel Drive Club,
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Friends of Greenhorn, Nevada County Woods Riders, Grass Valley 4-
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Wheel Drive Club, High Sierra Motorcycle Club, David C. Wood, and
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Kyra (collectively “Plaintiffs”) filed objections to Defendants’
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Plaintiffs
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bill of costs (Doc. #53) and Defendants replied (Doc. #59). 1
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the following reasons, the Court overrules Plaintiffs’ objections
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to Defendants’ bill of costs and awards costs to Defendants.
For
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I.
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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
The facts are well known to the parties and therefore the
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following is only a brief summary.
On January 6, 2014, the Court
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granted summary judgment in favor of Defendants on all seven
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causes of actions and denied Plaintiffs’ motion for summary
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judgment.
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After judgment was entered, Defendants submitted their bill of
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costs, requesting $14,875.23 (Doc. #52).
Order Granting Defendants’ Motion (“Order”), Doc. #50.
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II.
OPINION
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A.
Legal Standard
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Federal Rule of Civil Procedure 54(d)(1) provides, in
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pertinent part, “Unless a federal statute, these rules, or a
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court order provides otherwise, costs—other than attorney’s fees—
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should be allowed to the prevailing party.”
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54(d)(1).
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taxed against the losing party, but “vests in the district court
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discretion to refuse to award costs” if the losing party shows
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why costs should not be awarded.
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v. State of California, 231 F.3d 572, 591-92 (9th Cir. 2000) (en
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banc).
Fed. R. Civ. P.
This rule creates a presumption that costs will be
Ass’n of Mexican-Am. Educators
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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
for April 9, 2014.
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If the court declines to award costs, it must “specify
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reasons” for denying costs.
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Inc. v. Southern Cal. Theater Owners Ass’n, 576 F.2d 230, 234
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(9th Cir. 1978)).
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decision to abide by the presumption and tax costs to the losing
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party.
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Cir. 2003) (citing Ass’n of Mexican-Am. Educators, 231 F.3d at
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592-93).
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However, it need not specify reasons for its
Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th
B.
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Id. (citing Subscription Television,
Discussion
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Request to Defer
Plaintiffs request that the Court exercise its discretion to
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defer consideration of the bill of costs during the appeal of
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this case.
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the Court from ruling on Defendants’ bill of costs.
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to the Advisory Committee Notes for Federal Rule of Civil
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Procedure 54(d)(“Rule 54”), “If an appeal on the merits of the
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case is taken, the court may rule on the claim for fees, may
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defer its ruling on the motion, or may deny the motion without
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prejudice, directing under subdivision (d)(2)(B) a new period for
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filing after the appeal has been resolved.”
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54(d) Advisory Committee Notes on 1993 Amendments.
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the Court exercises its discretion and finds that there is no
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basis to defer a decision on the bill of costs pending
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Plaintiffs’ appeal.
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Defendants respond that the appeal does not prevent
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Pursuant to
Fed. R. Civ. P.
Accordingly,
Administrative Record
Plaintiffs contend that the declaration submitted by
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Defendants does not provide sufficient justification for the
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portions of the administrative record that were provided.
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However, Defendants were required to file a hard copy of the
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administrative record with the Court pursuant to Local Rule
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138(b), which provides that “attorneys shall, if possible, submit
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the administrative record in electronic format with a mandatory
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courtesy copy in paper for the assigned Judge or Magistrate
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Judge.”
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providing a copy of the administrative record to the Court were
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necessarily incurred.
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hard copy of only a portion of the administrative record, as
L.R. 138(b).
Therefore, any costs associated with
Further, Defendants’ decision to provide a
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authorized by the Court, reduced the overall cost and is not a
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ground to deny costs.
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3.
Print Orders
Plaintiffs argue that there is no indication why Defendants
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believed it was necessary or appropriate to send a copying job to
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an outside contractor.
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recoverable even if they are contracted out.
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Further, neither Rule 54 nor § 1920 prohibit the use of an
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outside contractor to make copies.
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administrative record was necessary in this case.
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the use of an outside contractor is part of Defendants’ practice
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and the contract was awarded pursuant to low-bid contracting.
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Decl. of Terry Brennan ¶¶ 8, 10-13.
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are recoverable.
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4.
Defendants contend that copying costs are
28 U.S.C. § 1920(4).
As mentioned above, the
In addition,
Therefore, the copying costs
Print Orders
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Plaintiffs also argue that Print Orders 2-00028-GPO-12 and
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3-0032-GPO-13 do not provide sufficient information to form the
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basis of cost recovery.
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questions regarding the print orders, they fail to provide any
Although Plaintiffs raise several
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case law to support their argument that Defendants should not
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recover these costs.
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Under § 1920(4), “fees are permitted only for the physical
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preparation and duplication of documents, not the intellectual
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effort involved in their production.”
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1418, 1428 (9th Cir. 1989) abrogated on other grounds by Townsend
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v. Holman Consulting Corp., 914 F.2d 1136 (9th Cir. 1990).
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costs mentioned by Plaintiffs relate to production and do not
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include costs associated with strategic review of documents or
Romero v. Pomona, 883 F.2d
The
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decision-making.
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intellectual effort.
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from one format into another, blowbacks, and Bates stamping are
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valid exemplification costs.
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Inc., No. 09-01714, 2012 WL 6761576, *12 (N.D. Cal. Oct. 23,
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2012) (“Printing copies (or blowbacks), printing native files
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from the computer to PDF . . . are the equivalent of
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photocopying.
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or paper discovery, including Bates stamping and putting
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slipsheets (or some marker) between documents to show document
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breaks.”); see also Jardin v. DATAllegro, Inc., 08-CV-1462-IEG
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WVG, 2011 WL 4835742, *7-8 (S.D. Cal. Oct. 12, 2011) (noting that
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courts are divided over whether converting e-data from one format
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into another is a valid exemplification cost but holding that
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converting data into .TIFF format was a valid cost).
Therefore, these costs are not associated with
Further, costs related to converting e-data
See Plantronics, Inc. v. Aliph,
Certain ancillary tasks are common to electronic
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In addition, both invoices list the services provided and
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Defendants have also provided a declaration explaining all the
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costs.
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finds that these costs are recoverable and the invoices provide
See Decl. of Terry Brennan ¶¶ 4-12.
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Therefore, the Court
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sufficient detail to substantiate the costs incurred to create
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electronic and hard copies of the administrative record.
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5.
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Transcript
Plaintiffs claim that Defendants overpaid for the transcript
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by paying $262.80 because Plaintiffs only paid $94.50.
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as Defendants point out, the first party to order a transcript
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pays the original transcript rate while later parties pay a lower
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rate.
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http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCour
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ts/DistrictCourts/FederalCourtReportingProgram.aspx (last visited
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April 11, 2014).
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transcript.
United States Courts, Federal Court Reporting Program,
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However,
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Accordingly, Defendants did not overpay for the
NEPA Cases
Plaintiffs also argue that costs should not be taxed in this
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case because the case presented issues of national importance,
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this case was close and complex, and awarding costs would chill
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future NEPA suits. Opp. 12-14.
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The Ninth Circuit has held that “[d]istrict courts should
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consider the financial resources of the plaintiff and the amount
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of costs in civil rights cases” because “the imposition of such
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high costs on losing civil rights plaintiffs of modest means may
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chill civil rights litigation.”
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California, 178 F.3d 1069, 1079-80 (9th Cir. 1999) (citations
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omitted).
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“important issues . . . the answers [to which are] far from
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obvious,” id. at 1080, issues of “substantial public importance,”
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and are “close and difficult.”
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Educators (“Association”), 231 F.3d at 591–92.
Stanley v. Univ. of S.
These concerns are present in cases that raise
Assoc. of Mexican–American
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In Association,
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the Ninth Circuit affirmed the district court’s denial of a cost
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award exceeding $200,000 because the plaintiffs’ claims had
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statewide implications for the public schools of California,
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their students, and a significant contingent of their teachers.
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Id. at 592.
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Here, Plaintiffs have not provided any evidence of their
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financial resources and the cost award is substantially lower
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than the costs sought but denied in Association.
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although NEPA cases are important, the nature of the case in and
In addition,
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of itself is insufficient for a court to refuse to award costs.
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See e.g., Pit River Tribe v. Bureau of Land Mgmt., 2:04-CV-00956
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JAM, 2013 WL 6185240 (E.D. Cal. Nov. 26, 2013) (awarding
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$19,851.60. in costs to the prevailing defendants in a NEPA
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lawsuit).
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action and their bill of costs is neither exorbitant or
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unreasonable.
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costs.
Defendants were the prevailing party on all causes of
Accordingly, they are entitled to all of their
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III.
ORDER
For the reasons set forth above, the Court overrules
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Plaintiffs’ objections and grants Defendants’ costs.
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awarded are $14,875.23.
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IT IS SO ORDERED.
Dated:
April 16, 2014
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Total costs
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