Alliance for the Wild Rockies v. Weldon et al

Filing 138

ORDER granting in part and denying in part 125 Motion for Attorney Fees and Costs. Signed by Judge Charles C. Lovell on 9/13/2016. (MKB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
*******
ALLIANCE FOR THE WILD ROCKIES,

CV 11-76-M-CCL

Plaintiff,
vs.
UNITED STATES DEPARTMENT
OF AGRICULTURE, UNITED
STATES ANIMAL AND PLANT
HEALTH INSPECTION SERVICE,
an agency of the U.S. Department
of Agriculture, UNITED STATES
FOREST SERVICE, an agency of
the U.S. Department of Agriculture,
LESLIE WELDON, in her official
capacity as Regional Forester of
Region One of the U.S. Forest Service,
UNITED STATES DEPARTMENT
OF INTERIOR, UNITED STATES
FISH AND WILDLIFE SERVICE,
an agency of the U.S. Department of
Interior, UNITED STATES
NATIONAL PARK SERVICE, an
agency of the U.S. Department of
Interior, and CHRISTIAN MACKAY,
in his official capacity as Executive

ORDER

Director of the State of Montana
Department of Livestock,
Defendants,
and
BILL MYERS, individually,
Intervenor.
*******

Before the Court is Plaintiff’s “Motion for Attorneys’ Fees, Expert Witness Fees,
and Other Costs & Expenses Under the Endangered Species Act” (Doc. 125). The
matter came on regularly for hearing on June 23, 2016, at which time the Court
received excellent argument from Ms. Coleman and Mr. Stutz for the Defendants and
also from Ms. Smith and Mr. Bechtold for the Plaintiff. Having received the arguments
and reviewed the briefs and voluminous documentation provided by the parties, the
Court is prepared to rule.
Plaintiff requests $253,459.13 in attorney fees, $3,960.00 in consultant/research
assistant fees, $4,785.00 in expert witness fees, and $3,343.30 in non-taxable costs, for
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a total request of $265,547.43. The motion was originally submitted by Plaintiff
Alliance for the Wild Rockies (“AWR”) to the Ninth Circuit Court of Appeals
following conclusion of its appeal, but the motion was ultimately referred to this Court
for decision. The motion is vigorously opposed by the federal and state Defendants.
The Montana Defendant asserts that no fees or costs should be assessed against it, and
this Court agrees because AWR did not succeed on any claim against the State of
Montana. The federal Defendants similarly urge that no fees or costs be assessed, but
in the alternative the federal Defendants request that no more than $13,500 be assessed
in attorney fees.
Plaintiff’s Amended Complaint and Relief Sought
In its Complaint, AWR challenged the USFS’s decision to allow helicopter
hazing of bison on USFS land. AWR asserted in its First Claim for Relief that the
Endangered Species Act (“ESA”), 16 U.S.C. § 1536, was violated by National Park
Service when it failed to reinitiate consultation with the U.S. Fish & Wildlife Service
as to the 2000 bison management plan and the Gallatin Forest Plan. AWR claimed that
these existing documents were based upon false and outdated assumptions and that
3

under current conditions the plan of operations for helicopter hazing was likely to
adversely affect the Yellowstone grizzly bear (which is currently a threatened species
under the ESA). Changes in the circumstances of Yellowstone grizzlies that were
claimed by AWR in their Amended Complaint, included helicopter hazing occurring
during the post-denning season (as opposed to denning season), and reductions to and
interference with post-denning nourishment due both to the mechanized activity and
other threats to four primary food sources (ungulate meat, whitebark pine seeds,
cutthroat trout, and army cutworm moths).
In its Second Claim for Relief, AWR asserted that the helicopter hazing harassed
Yellowstone grizzly bears and constituted a take and harassment within the meaning of
the Endangered Special Act (“ESA”), 16 U.S.C. § 1533(d), § 1538(a), § 1532(19).
In its Third Claim for Relief, AWR asserted a violation of the National
Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and claimed that the
federal Defendants had ignored significant new circumstances (low-altitude recurring
helicopter hazing operations (May-July)) and failed to prepare a supplemental NEPA
analysis of the effects of recurrent helicopter-hazing upon Yellowstone grizzly bears.
4

In its Fourth Claim for Relief, AWR asserted a National Forest Management Act
(“NFMA”), 16 U.S.C. § 1600, et seq., violation by USFS’s authorization of helicopter
hazing over the Gallatin National Forest without conducting a necessary analysis
required by the Forest Plan.
The relief sought by AWR is as follows:
A.

B.
C.
D.

Declare that low-altitude helicopter hazing operations over occupied
Yellowstone grizzly bear habitat in May, June, and July violate the
law;
Enjoin implementation of low-altitude helicopter hazing operations over
occupied Yellowstone grizzly bear habitat in May, June, and July;
Award Plaintiff its costs, expenses, expert witness fees, and reasonable
attorney fees under the ESA and EAJA; and
Grant Plaintiff any such further relief as may be just, proper, and
equitable.

(Doc. 19, Amended Complaint at 40.)
Procedural Background
The initial Complaint was filed in this case in May, 2011, against the USFS, and
two weeks later AWR filed a motion for temporary restraining order and preliminary
injunction, seeking to enjoin the U.S. Forest Service from conducting helicopter hazing
operations over the Gallatin National Forest lands in the Hebgen Basin. On June 6,
5

2011, this Court denied that injunctive relief, noting that the USFS did not conduct the
helicopter hazing and was not the proper subject for the injunctive relief sought. (Doc.
13.) An Amended Complaint was filed on July 14, 2011, adding defendants APHIS,
USFWS, NPS, and the executive director of the State of Montana Department of
Livestock. (Doc. 19.) The administrative record was filed on October 31, 2011, and
the Court set down a scheduling order for supplementation of the administrative record
and cross-motions for summary judgment. Before that briefing began, however, on
May 9, 2012, AWR filed another motion for temporary restraining order and a
preliminary injunction seeking to restrain helicopter hazing in the Hebgen Basin area.
(Doc. 45.)
Following hearing on this second emergency motion, the Court granted the
motion for temporary restraining order on May 14, 2012, specifically for the purpose of
permitting the Court to rule on the merits before any further helicopter hazing occurred.
(Doc. 56.) At the hearing on the temporary restraining order, I stated that I was
surprised that the helicopter hazing was continuing when the Court was in the middle
of adjudicating the dispute and when Plaintiff contended in the Third Claim for Relief
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that helicopter hazing violated NEPA. On May 24, 2012, the Court denied the motion
for preliminary injunction, stating that serious questions on the merits had justified the
issuance of the temporary restraining order, but that the need for injunctive relief no
longer existed. (Doc. 59.) On August 6, 2012, AWR filed its motion and brief in
support of summary judgment. On September 5, 2012, the federal Defendants filed
their cross-motion for summary judgment. By September, 2012, the federal defendant
National Park Service had conducted a new Biological Evaluation on helicopter hazing
of bison vis-a-vis grizzly bears, taking into consideration changes in nutrient sources
(such as whitebark pine nuts, cutthroat trout, and bison carcasses). (Doc. 97-2.) On
September 20, 2012, NPS reinitiated consultation with the U.S. Fish & Wildlife
Service (“FWS”) pursuant to Section 7 of the ESA, 16 U.S.C. 1536(a). On
December 3, 2012, FWS completed that consultation with its letter to the NPS
concurring with the NPS conclusion that the use of helicopters to haze bison is not
likely to adversely affect grizzly bears.
Summary Judgment Decision
On March 26, 2013, this Court ruled on the parties’ cross-motions for summary
7

judgment. The Court dismissed two federal defendants, APHIS and FWS, which were
only named in the ESA claims, due to the failure of AWR to name those defendants in
its 60-day notice of intent to sue letter required by the ESA. The Court found that the
Section 7 (ESA) claim was moot due to the preparation by NPS of their 2012
Biological Evaluation and their reinitiation of consultation with FWS. The Court also
found that insufficient evidence supported AWR’s Section 9 (ESA) claim against
Christian Mackay, the Montana Department of Livestock’s executive director, which
alleged that the helicopter hazing of bison caused a taking or harassment of a
threatened species under the ESA, the Yellowstone grizzly bear. The FWS resident
expert in Yellowstone Grizzly Bears stated flatly that occasional helicopter hazing is a
non-issue and would not harm or harass bears or result in any measurable impact on
grizzly bears or their cubs. (Doc. 106 at 27.) All the evidence showed that the
helicopter hazing was infrequent, limited in duration, that hazing areas were not
primary grizzly bear habitat, and that the protocol was to avoid hazing areas where
grizzly bears were present. In fact, the Yellowstone grizzly bear population continues
to be healthy and increasing.
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As to the Third Claim for Relief, AWR’s NEPA claim, this Court found that
AWR had failed to present new information that affected the environment in a
significant manner or to a significant extent not already considered by the 2000 Final
Environmental Impact Statement (“FEIS”). The FEIS contemplated that there would
be some hazing of bison in the post-denning season, even into the summer months.
(Doc. 106 at 36.) The evidence showed that helicopter hazing had a relatively neutral
(neither beneficial nor adverse) impact on grizzly bears. This Court concluded that no
new circumstances or information required a supplemental EIS as demanded by AWR.
(Doc. 106 at 40.)
In its Fourth Claim for Relief, AWR presented a NFMA claim which asserted
that helicopter hazing violated the Gallatin National Forest Plan. This Court found that
helicopter hazing by a State of Montana helicopter was not carried out by the USFS
and that the USFS issued no permit to allow it. No supplemental EIS was required
because AWR failed to show (either directly, indirectly, or cumulatively) that
helicopter hazing adversely impacts grizzly bears. (Doc. 106 at 43.)
Ninth Circuit Appellate Decision
9

On November 20, 2014, a Ninth Circuit panel affirmed the dismissal of APHIS
and FWS for failure to provide ESA’s required 60-day notice. Alliance for the Wild
Rockies v. U.S. Dept. of Agriculture, et al., 772 F.3d 592 (9th Cir. 2014). The court
affirmed the grant of summary judgment to the federal defendants and dismissal of
Montana on the ESA Section 7 claim, noting that “[r]einitiation of consultation is the
precise relief sought by Alliance.” (Doc. 120 at 19.) The panel affirmed the grant of
summary judgment to the federal defendants and dismissal of Montana on the ESA
Section 9 claim. The panel affirmed the grant of summary judgment to the federal
defendants on the NEPA and NFMA claims. Noting that the helicopter hazing program
was authorized, funded, or carried out, in whole or in part, by the federal defendants,
the court reversed on standing, finding that AWR had adequately demonstrated
causation and redressability as to its ESA and NEPA claims. Additionally, in a matter
of first impression in the Ninth Circuit, the panel concluded that it was proper for AWR
to send its ESA 60-day notice of intent to sue letter to the federal defendants, file its
non-ESA complaint seven days later, and then amend its complaint to add the ESA
claims after the 60-day notice period expired.
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Motion for Attorney Fees and Standards
Clearly, AWR is not a prevailing party for purposes of their claims under NEPA
and the NFMA. AWR therefore brings its motion for attorney fees pursuant to its ESA
claims and the pertinent standard supplied by the ESA: “The court . . . may award costs
of litigation (including reasonable attorney and expert witness fees) to any party,
whenever the court determines such award is appropriate.” 16 U.S.C. 1540(g)(4).
Congress intended to expand eligibility for attorney fees from prevailing parties to
partially prevailing parties having some success, if not major success. Ass’n of Cal.
Water Agencies v. Evans, 386 F.3d 879, 885 (9th Cir. 2004) (quoting Ruckelshaus v.
Sierra Club, 463 U.S. 680, 688, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983) (interpreting
similar ‘whenever appropriate’ Clean Water Act fee-shifting provision to require “some
degree of success on the merits”)).
The two-part test known as the Catalyst Test was stated in Ass’n of Cal. Water
Agencies v. Evans as requiring the court to determine: (1) what was sought to be
accomplished by the lawsuit; and (2) whether any of the benefits sought were
accomplished with a clear, causal relationship between the lawsuit and the desired
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outcome. Evans, 386 F.3d at 885-86 & n.3. As to causation, it is necessary that the
litigation be at least a contributing factor or played a role in influencing the desired
outcome. The outcome accomplished must not be the result of a gratuitous act on the
part of the government agency. See Sablan v. Dept. of Finance of Commonwealth of N.
Mariana Islands, 856 F.2d 1317, 1327 (9th Cir. 1988). It is important to consider
chronological events; although not always determinative, chronology may be used to
reasonably infer that a defendant’s actions have been prompted by the litigation. See
Braafladt v. Bd. of Governors of Or. State Bar Ass’n, 778 F.2d 1442, 1444 (9th Cir.
1985).
Two years before the Ninth Circuit’s catalyst test in Evans, a district court stated
another method for determining eligibility for fee-shifting: the relief achieved “must
have furthered the interpretation or implementation of the ESA.” EPIC v. Pacific v.
Pacific Lumber Co., 229 F.Supp.2d 993, 1000 (N.D. Cal. 2002) (citing Carson-Truckee
Water Conservancy Dist. v. Secretary of the Interior, 748 F.2d 523, 525 (9th Cir. 1984)
(overruled on other grounds by Marbled Murrelet v. Babbitt, 182 F.3d 1091 (9th Cir.
1999)). However, Carson-Truckee carefully distinguished eligibility from entitlement,
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stating that not all partially prevailing parties are entitled to a fee-shifting award, even
though they may be eligible. “[U]nder the ‘when appropriate’ standard, an eligible
party must make a substantial contribution to the goals of a statute to be entitled to
attorney fees.” Carson-Truckee Water Conservancy Dist., 748 F.2d at 526 (emphasis
supplied).
In this case, AWR’s overarching objective was to obtain a permanent injunction
against the helicopter hazing of bison back into Yellowstone National Park; that
objective was not accomplished. An important step on the way to that objective was to
prove that helicopter hazing effected a Section 9 take of grizzly bears within the
meaning of the ESA; that objective was not accomplished. An alternative step was to
demonstrate that a supplemental EIS should be prepared; that objective was not
accomplished. There was limited success as to one of the Plaintiff’s lesser goals of
proving a Section 7 failure to reinitiate consultation with FWS; with regard to this
claim, the Court infers that AWR did precipitate NPS’s preparation of a new biological
evaluation of the effects of helicopter hazing on grizzly bears and reinitiation of its
consultation with USFWS, even though this Court ultimately dismissed as moot the
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Section 7 claim.1 Federal defendants cite Klamath Siskiyou Wildlands Ctr. v. U.S.
Bureau of Land Mgmt., 589 F.3d 1027, 1033 (9th Cir. 2009) (denying attorney fees
under Equal Access to Justice Act) for the proposition that dismissal of a claim as moot
deprives a party of entitlement to attorney fees. However, Klamath is an EAJA
‘prevailing-party’ case, and the Klamath plaintiff did not prevail on the merits because
the defendant BLM voluntarily withdrew its timber sale in response to new Ninth
Circuit case law, not because any court enjoined the sale. Therefore, the Klamath
plaintiff was not a prevailing party under the EAJA standard.
The standard in an ESA case is not so very high, because even partial success
may merit attorney fee compensation. However, plaintiff in the instant case still had a
very limited success because the conclusion of the biological evaluation and
consultation supported the federal agencies’ position and ultimately led to AWR failing

1

The Court notes that it is to be expected that the reinitiation of
consultation required email communications between defense counsel in this case
and FWS. Information sharing between federal agencies during litigation is
unremarkable and does not prove that the litigation itself prompted the reinitiation
of consultation by NPS with FWS.
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to achieve its ultimate objective--to stop helicopter hazing of Yellowstone bison.
In hindsight, it is relatively clear to this Court that Plaintiff had little justification
for bringing this suit other than simple speculation that helicopter-hazing might harm
or harass grizzly bears, combined with a belief that not enough formal analysis had
been performed by the federal agencies. Ultimately, the evidence and the record in the
case definitively showed that there was no harm. That said, the case would have been
less clear absent the 2012 Biological Evaluation and the concurrence of the USFWS
(completed in December, 2012), and it was not unreasonable for AWR to assert that
insufficient formal analysis had been brought to bear on the question. In fact, NPS
could have conducted its biological evaluation in 2011, immediately following receipt
of AWR’s 60-day notice of intent to sue, and had it done so then it would not be in the
position of having to pay some of AWR’s attorney fees now.
Considering all these circumstances, it seems to this Court that this partial
success on the merits should be reflected in an appropriately limited award of attorney
fees. The Court notes that after AWR’s one limited success (accomplished by
December, 2012), the case ground on with no further success for another four years.
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AWR’s reliance upon Alliance for the Wild Rockies v. Krueger, 2014 WL 46498 (D.
Mont. 2014), for the proposition that it is entitled to all its fees as to all its claims even
though it prevailed only on one ESA claim, is distinguishable. In Krueger, Alliance
achieved a permanent injunction against the Cabin Gulch Project based on its Section 7
ESA claim (lynx consultation), and all its claims were directed toward that goal. In the
Kreuger timber sale, “the injunction was the primary relief requested, as is often the
case in timber sale litigation.” Id. at *2. Here, AWR failed to achieve its primary goal
and only had a partial success (only partial because the outcome of the consultation
favored the federal agencies’ position) as to the ancillary consultation claim. There
was no material alteration in legal relationship between the opposing parties in this
case because neither the preliminary nor the permanent injunction sought by AWR was
granted.
Granting of TRO
AWR asserts that it achieved significant success in obtaining a two-week TRO
enjoining helicopter hazing of bison. This argument is without merit because the value
and significance of the TRO was negligible and was implemented mainly for the
16

convenience of the Court. Similarly, the Court doubts that AWR should receive the
credit for APHIS’s decision to withdraw its funding for Montana’s helicopter hazing
program. That defunding decision was a voluntary policy and budgetary decision not
required by law. A gratuitous action by APHIS (which was dismissed from the
litigation for lack of jurisdiction) should not be the basis for plaintiff’s entitlement to
attorney fees from the remaining federal agencies. And, again, the 2013 memorandum
of understanding between the Montana Department of Livestock and the Montana
Department of Fish, Wildlife & Parks, which governs the state protocols for avoidance
of grizzly bears during state helicopter hazing operations, was a gratuitous and
voluntary act not required by law (and also not relief sought by AWR).
Issuance of a temporary restraining order may support a fee award if it does “not
merely preserve the status quo.” Envt’l Protection Information Center, Inc. v. Pacific
Lumber Co., 229 F.Supp.2d 993, 1000 (N.D. Cal. 2002) (citing LSO, Ltd. v. Stroh, 205
F.3d 1146, 1161 (9th Cir. 2000) (“It is clear that the TRO in this case did more than
preserve the status quo.”). In this case, the Court issued a temporary restraining order
on May 14, 2012, because serious allegations of dire threats to grizzly bears were
17

raised by Plaintiff, because the need for further helicopter hazing that year appeared to
be negligible, because the parties were ready to begin briefing a dispositive summary
judgment motion, and because the Court wished to preserve the general status quo (i.e.,
no helicopter hazing) while the Court examined the merits of the claims. In fact, the
only helicopter hazing that was contemplated for the rest of the year was to occur the
very next day, on May 15, 2012. During the TRO hearing, the undersigned was taken
aback and expressed surprise that hazing would be utilized when the hazing was itself
the subject of a pending complaint against the Montana Department of Livestock,
APHIS, the National Park Service, the U.S. Forest Service, and the U.S. Fish &
Wildlife Service, and the Court had not yet been able to evaluate fully the facts of the
case. (Doc. 137, TRO Hearing, 54:11-55:6.) The state defendant, Christian Mackay,
testified that there had been two days of helicopter hazing that year (May 9, 11, 2012),
and the state intended to helicopter haze on the next day (May 15, 2012) in order to
move the last 70 head of bison back into Yellowstone National Park. (Doc. 137, TRO
Hearing, 75:18-22, 76:4-9, 77:3-5.) However, Mr. Mackay also testified that there
were at least three alternatives (horseback hazing, capture, or lethal removal) available
18

for the next day (May 15, 2012) if helicopter hazing were to be enjoined. (Doc. 137,
TRO Hearing, 91:3-18.)
The Court granted the TRO because the Court wanted the status quo of nohazing in place to enable the Court and the parties to turn their attention to dispositive
motions (scheduled to be filed imminently). The TRO was a relatively unimportant
matter, as it turned out, because it pertained only to the activities of the next day.
Similar to the circumstances in Sole v. Wyner, 551 U.S. 74 (2007) (a prevailing-party
fees case), the granting of the TRO in this case was an “ephemeral” victory for AWR,
because AWR won the TRO battle--only because the Court wanted to turn its attention
to the merits of the case and little was to be gained or lost by the issuance of a
TRO–but lost the war. Id. at 86. The State of Montana continues to maintain its right
to conduct helicopter hazing of Yellowstone bison, and the federal agencies continue to
maintain that helicopter hazing is a valid bison management tool that may affect, but is
not likely to adversely affect, the threatened grizzly bear. Although AWR leveled
serious allegations of mismanagement of the helicopter hazing of bison vis-a-vis the
grizzly bear, see Doc. 59, Order dated May 24, 2012, at 2, the Court ultimately
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determined that those allegations were not supported by sufficient evidence for
issuance of either a preliminary or permanent injunction, see Doc. 106 at 39.
Interpretation of ESA’s 60-Day Notice Statute
AWR also asserts that it is eligible for and entitled to attorney fees for the ESA
precedent set by the Ninth Circuit in its decision in this case. Reversing this Court in a
matter of first impression, the Ninth Circuit panel decided that it was permissible for
AWR to send the federal agencies its 60-day notice of intent to sue letters but then
seven days later file its original complaint alleging non-ESA claims, with the plan to
amend its complaint to add ESA claims after the 60-day period had elapsed. Alliance
for the Wild Rockies v. U.S. Dept. of Agriculture, 772 F.3d at 603. However, this Ninth
Circuit interpretation of the ESA arose in response to the federal agencies’ argument
and did not arise as any part of AWR’s claims themselves.
No doubt the 60-day notice ruling provides a helpful clarification for
environmental law practitioners because it lays down a clear rule of engagement that
assists practitioners in planning and executing litigation strategy, and particularly in
allowing plaintiffs to bring motions for emergency relief on non-ESA claims if they
20

have them. Necessary clarifications of statute and refinements of case law are a regular
and expected occurrence. However, this procedural clarification did not make a
substantial contribution to the dominant goals of the ESA (viz., protection of
endangered species by, among other things, requiring that federal agencies consult with
the Fish and Wildlife Service or the National Marine Fisheries Service before taking
any action that might threaten a listed species). Not only is this interpretation of the
ESA purely procedural, rather than substantive, but also this ‘success’ does not satisfy
the first prong of the catalyst test because it was merely a by-product of the litigation
and not among the goals sought to be achieved by AWR’s litigation. This type of
useful but unintended consequence of litigation does not entitle AWR to attorney’s
fees. Assuming, arguendo, that this ‘success’ on a procedural clarification of ESA
makes AWR eligible for attorney fees, it does not necessarily follow that AWR is
entitled to attorney fees, and in the opinion of this Court it does not.
AWR supplements its partial-success argument with the assertion that it had to
appeal the 60-day notice issue or else it could never have become a prevailing party,
and therefore it should receive all of its attorney fees on appeal. However, AWR did
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not become a prevailing party on appeal. The Court returns to the fact that AWR
achieved no substantive benefit or success by its appeal, because the federal defendants
had completed its reinitiated consultation (mooting the Section 7 claim) three months
before AWR’s notice of appeal was filed. Viewing the appeal by what it actually,
substantively accomplished for a threatened species under ESA, the Court finds it not
to be appropriate to award AWR’s attorneys fees on appeal.
Billing Rate and Hours
In determining the amount of fees that are reasonable, the Court uses the lodestar
method (the number of hours reasonably expended times a reasonable hourly rate).
The Court also considers the Kerr factors:
(1) the time and labor required, (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 the
acceptance of the case, (5) the customary fee, (6) whether the fee is fixed
or contingent, (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.
Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). Plaintiffs may
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receive fees for their unsuccessful claims if they are based on “a common core of facts
or are based on related legal theories,” but the court “should focus on the significance
of the overall relief obtained by the plaintiff in relation to the hours reasonably
expended on the litigation. Where a plaintiff has obtained excellent results, his
attorney should recover a fully compensatory fee.” Hensley v. Eckerhart, 461 U.S.
424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (U.S. 1983). In this case, Plaintiff did not
obtain an excellent result, Plaintiff’s sole successful claim did not achieve the primary
objective of the litigation, and even that successful claim was only partially successful,
in that the final result of the Section 7 consultation did not support Plaintiff’s primary
objective.
The Court considers reasonable hourly rates in view of experience, reputation
,and skill, as well as the “prevailing market rates in the relevant community, which
typically is the community in which the district court sits.” Schwarz v. Secretary of
Health & Human Services, 73 F.3d 895, 906 (1995). In this case, the Court limits the
relevant community to environmental attorneys in Montana with commensurate
experience, reputation, and skill. The Court concludes that Smith and Bechtold’s
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billing rates are reasonable, as they have been awarded these billing rates in prior cases
in the District of Montana. In 2013, Smith was awarded $210/hour for work performed
in 2011 and $220/hour for work in 2012, and Bechtold was awarded $270/hour for
work performed in 2011 and $280/hour for work in 2012. Native Ecosystems Council
v. Weldon, 921 F.Supp.2d 1069, 1080 (D. Mont. 2013) (CV 11-99-M-DWM)
(awarding $46,436 in attorney fees). More recently, in 2014, Smith was awarded
$220/hour for work in 2012, and $230/hour for work in 2013, and Bechtold was
awarded $280/hour for work performed in 2012, $290/hour for work performed in
2013. Alliance for the Wild Rockies v. Krueger, 2014 WL 46498 (D. Mont. 2014) (CV
12-150-M-DLC) (awarding $72,234.55 in attorney fees).
Reviewing this case with the benefit of hindsight, the Court finds that the case
was probably brought not to protect a threatened species (the grizzly bear) but to
attempt to force the multiple government actors to stop hazing Yellowstone bison back
into the Park. A USFS finding of no significant impact and special permit allowing
helicopter hazing of bison had been approved previously by this Court and also by the
Ninth Circuit Court of Appeals. See Cold Mountain v. Garber, 375 F.3d 884 (9th Cir.
24

2004). Plaintiff knew, or should have known, of this circuit approval before embarking
on this case. That said, whenever a citizen suit identifies a governmental failure to
follow strictly the requirements of the ESA, the suit serves a public purpose.
Therefore, the Court finds that it is appropriate to award attorney fees to AWR for
hours performed beginning with the drafting of the amended complaint through the
completion of consultation between NPS and USFWS:
Smith
$ 7,023.00 (2011) (158.6 total hours in 2011 minus 123.7 hours prior to 7/13/11)
$42,108.00 (2012) (191.9 total hours in 2012 minus .5 hours after 12/4/12)
$11,362.31 (fee petition)
Bechtold
$ 9,642.00 (2011) (63.9 total hours in 2011 minus 28.3 hours prior to 7/14/11)
$30,044.00 (2012) (unadjusted)
$3,660.82 (fee petition)
(Doc. 132-5 at 6-7; Doc. 132-4 at 4-5.) This results in total attorney fees of
$103,840.13.
The Court need not analyze the fee requests line-by-line, see In re Smith, 586
F.3d 1169, 1174 (9th Cir. 2009), but there are some entries that do appear unreasonable.
The Court concludes that a reduction should be applied to the foregoing total amount
25

of attorney fees to account for vague and unclear billing records that fail to identify the
nature of work to tie it to the one successful claim, excessive hours spent conferencing
between co-counsel and preparing the fee petition, billing time spent on clerical and
administrative tasks and trips to Yellowstone National Park, and billing for community
organizing, conferencing with non–parties, and drafting/reviewing press releases. The
Court finds that a twenty-five percent reduction in attorney fees is appropriate. With
this reduction, total attorney fees are reduced to $77,880.10.
Expert Witness Fees and Other Costs and Expenses
Defendants concede that if any costs are appropriately awarded to AWR, they are
the costs incurred between the filing of the amended complaint and the reinitiation of
consultation on May 12, 2012, for a total of $459.10 in filing fee, copying, and mailing
expenses. (Doc. 131, Defs.’ Brief in Response at 46.)
Defendants object to the request of a $3,960.00 payment for Mr. Darrell Geist as
a research assistant/consultant. AWR seeks a billing rate for Mr. Geist of $75.00 per
hour for 52.8 hours, for a total request of $3,960 for “research assistant/consultant
fees.” (Doc. 132-5 at 7.) Mr. Geist has a B.A. in Political Science from South Dakota
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State University. (Doc. 132-5 at 4.) Throughout this litigation he was employed by
Buffalo Field Campaign, a nonprofit organization devoted to protecting the
Yellowstone National Park bison. (Doc. 131 at 38.) Mr. Geist was working for
Buffalo Field Campaign while it was issuing press releases concerning helicopter
hazing and this litigation and while Buffalo Field Campaign was assisting counsel with
video and documentation. (Doc. 131 at 38.) Defendants assert that Geist should not be
paid for his work that appears to be in the course of his ordinary employment with the
Buffalo Field Campaign, and this Court agrees. (Doc. 131 at 38.) Furthermore, Mr.
Geist is not a lawyer and is not a scientist, and he has no expertise that is credentialed
outside of his experience as an employee of the Buffalo Field Campaign. AWR points
out that Mr. Geist has completed one semester of paralegal studies at the University of
Montana-Missoula College, with a 4.0 average. While this is commendable in itself, it
does not justify compensation at the requested rate of $75.00 per hour. Much of the
time billed is outside of the amended complaint/reinitiation-of-consultation parameters,
much of the time billed is for administrative activities, some of the time billed is for
work relating to a suit against the State of Montana, and none of the time billed is
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related to any particular claim. Under all these circumstances, the Court declines to
award AWR expenses associated with an untrained research assistant/consultant when
he is already being paid for all or part of this work for his employer Buffalo Field
Campaign.
Defendants object to AWR’s request for expert opinions relating to the
reasonableness of the hourly rates requested by Smith and Bechtold. The court agrees
that seven fee experts, charging $4,785.00 (Doc. 132-5 at 7) is excessive, especially
given that Smith and Bechtold have already received these billing rates in cases before
two other Montana federal district judges. Such inordinate multiplication of attorney
fee expert opinions should not be encouraged, lest it become a minor industry unto
itself. The Defendants point out that Dana Johnson’s expert fee opinion is the same fee
opinion rendered for Smith and Bechtold three months earlier in Swan View Coalition,
et al., v. Chip Weber, et al., CV 13-129-M-DWM. (Doc. 125 at 89.) Very few words
have been changed before this expert fee opinion was resubmitted in this case, and it
apparently escaped notice that this case is not a “politicized federal timber sale” case.
(Doc. 125 at 91.) This request for $357 for a duplicate expert fee opinion is outlandish.
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The Court will grant the request for attorney fee expert opinions in the total amount of
$500.
The Court finds itself in agreement with the Defendants that the expenses for 60day-notice expert opinions are not compensable. As explained above, the 60-day
notice issue was not a claim in Plaintiff’s amended complaint and does not promote the
dominant goals of the ESA, so Plaintiff is entitled to neither attorney fees nor expert
opinion expenses for this issue. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Attorney Fees and Costs
is granted in part and denied in part, as follows:
Ms. Smith:
Mr. Bechtold:
Costs:
Expert Fees:
Total:

$45,369.98
$32,510.12
$ 459.10
$ 500.00
$78,839.20

Dated this 13th day of September, 2016.

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