Native Ecosystems Council et al v. Christiansen et al

Filing 90

ORDER granting 77 Motion for Attorney Fees. The Court will reduce the requested amount and award Defendants to pay $26,904.61. Signed by Judge Dana L. Christensen on 4/4/2019. (ASG)

RECEIVED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

NATIVE ECOSYSTEMS COUNCIL,
and ALLIANCE FOR THE WILD
ROCKIES,

APR O 2019
4
Clerk, lJ S Cuurts
District of Mont:;na
M;ssou1a D1vis1on

CV 12-27-M-DLC

ORDER

Plaintiffs,

vs.
FAYE KRUEGER, Regional Forester
of Region One of the United States
Forest Service, UNITED STATES
FOREST SERVICE, an agency of the
United States Department of
Agriculture, and UNITED STATES
FISH AND WILDLIFE SERVICE, an
agency of the United States
Department of Interior.
Defendants.
Plaintiffs seek $29,707.50 in attorneys' fees under the Endangered Species
Act ("ESA").

(Docs. 77; 78 at 13.)

Defendants oppose Plaintiffs' requested

amount, arguing that the Court should (1) reduce the total hours to reflect recovery
only on Plaintiffs' ESA claim; (2) reduce the hourly rates to accord with similar
practices within the District; and (3) reduce the number of hours on account that
they are vague, improperly billed, and excessive.
agrees only in part.

(Doc. 87 at 5.)

The Court

Because it concludes that Plaintiffs' requested annual hourly

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rate increase of $25 per year is not "reasonable" per se, the Court will reduce the
requested hourly rate and award Plaintiffs $26,904.61.
Background
In 2012, Plaintiffs sought judicial review of the U.S. Forest Service's
authorization of the Fleecer Mountains Project on the Beaverhead-Deerlodge
National Forest and revision to the Beaverhead-Deerlodge National Forest Plan.
Plaintiffs complained that the Project and Plan violated the ESA, the National
Environmental Protection Act ("NEPA"), and the National Forest Management
Act ("NFMA").

On May 24, 2013, the Court partially granted Plaintiffs' motion

for summary judgment, enjoining the Project until the federal agencies: ( 1)
supplemented the Project Environmental Assessment; (2) supplemented the Forest
Service's Environmental Impact Statement for the Forest Plan; (3) prepared a new
biological assessment addressing whether the Project "may affect" grizzly bears;
and (4) considered whether lynx "may be present" in the forest and take all
necessary action related to that finding.
On February 27, 2018, believing it had complied with the Court's remand
order, Defendants filed a motion under Federal Rule of Civil Procedure 60(b )(5) to
dissolve the injunction.

Plaintiffs opposed the motion, arguing that dissolution

was improper because Defendants had not fulfilled the Court's remand instructions
in various ways.

Particularly, Plaintiffs argued that the Fish and Wildlife

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Service's disclosure that lynx "may be present" across the forest triggered a need
for the Forest Service to conduct a biological assessment to determine what affects,
if any, the Forest Plan may have on lynx.

(Doc. 73 at 3.)

The Court held oral argument on this matter on August 13, 2018.

Counsel

for both parties demonstrated exemplary oral advocacy which aided the Court in
making a correct decision on a complex issue of law and fact.
its written decision on October 15, 2018.

(Doc. 73.)

The Court issued

Evaluating the parties

arguments under Rule 60, the Court denied Defendants' motion to dissolve the
injunction because it agreed with Plaintiffs that the Forest Service had not
completed everything required to comply with the remand order.

On October 29,

2018, Plaintiffs filed a motion for attorneys' fees requesting $29,707.50 under the
BSA' s fee-shifting provision.
Discussion

"Ideally[] ... litigants will settle the amount of a fee."
Eckerhart, 461 U.S. 424, 437 (1983).

Hensley v.

Where settlement is impossible, the fee

applicant bears the burden to prove the requested amount is reasonable.

Id.

The

district court has discretion to determine the amount awarded but must "clearly and
concisely explain the grounds for its decision."

Jordan v. Multnomah Cty., 815

F.2d 1258, 1261 (9th Cir. 1987).
Having failed to reach settlement, Plaintiffs move the Court to award

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reasonable attorneys' fees under 16 U.S.C. § 1540(g)(4).

In total, Plaintiffs ask

for $29,707.50 which represents a fee of $355 per hour for 67.2 hours of work
performed by attorney Rebecca K. Smith and $415 per hour for 14.1 hours of work
performed by attorney Timothy Bechtold.

Plaintiffs assert that these fees are

appropriate because it was the prevailing party, its rates are comparable to "similar
work performed by attorneys of comparable skill, experience and reputations" and
that its hours "were reasonable and necessary and not excessive."

(Doc. 78 at 2-

9.)
I.

Fee Award

Under the ESA, a 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).

An award is "appropriate" when

the plaintiff has achieved some degree of success on the merits.

Sierra Club, 463 U.S. 680, 688 (1983).

Ruckelshaus v.

The use of the word "appropriate" in the

ESA's fee-shifting statute, as opposed to the term "prevailing party" (which is used
in numerous other federal statutes that authorize fee-shifting provisions,) "was
meant to expand the class of parties eligible for fee awards from prevailing parties
to partially prevailing parties-parties achieving some success, even if not major
success."

Ass 'n of California Water Agencies v. Evans, 386 F.3d 879,884 (9th

Cir. 2004) (quoting Ruckelshaus, 463 U.S. at 688).

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When a party is a "prevailing

party"-that is, when it "( 1) wins on the merits of its claim, (2) the relief received
materially alters the legal relationship between the parties by modifying the
defendant's behavior, and (3) that relief directly benefits the plaintiffs[,]" UFO
Chuting ofHawaii, Inc. v. Smith, 508 F.3d 1189, 1197 (9th Cir. 2007}-the party

has necessarily achieved "some success on the merits" making a fee award under
the ESA appropriate.
Plaintiffs argue that fees are appropriate because they were the prevailing
party, having "secured an enforceable judgment[] on the merits."

(Doc. 78 at 3

(quoting Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d 1152, 1158 (9th Cir. 2018)).)
Defendants do not dispute that fees should be awarded for Plaintiffs' ESA claim,
but argue that fees are not appropriate for work done on the NEPA and NFMA
claims.

This argument misconstrues the result Plaintiffs obtained.

Defendants sought to dissolve the injunction granted against the Fleecer
Project under Rule 60(b)(5).

To prevail, Defendants needed to show that the

injunction was no longer necessary because there was a "significant change either
in factual conditions or in law."

(Doc. 73 at 2-3 (citing All.for the Wild Rockies

v. Weldon, 2011 WL 3348000, at *2 (D. Mont. Aug. 3, 2011)).)

In other words,

Defendants needed to show that they had fully complied with the Court's remand
order.

Sharp v. Weston, 233 F.3d 1167, 1170 (9th Cir. 2000).

In opposition to Defendants' Rule 60 motion, Plaintiffs asserted four

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theories.

To defeat Defendants' motion, Plaintiffs needed to prevail on only

one-which is what happened in this case.

While the Court disagreed with three

of Plaintiffs' arguments-specifically, that the Forest Service failed to (1)
supplement the Environmental Assessment to clarify its treatment of permitted and
administrative roads, (2) justify its decision to exclude temporary roads from road
density calculations, and (3) provide a "full and fair" discussion of the impact of
temporary roads on elk-the Court sided with Plaintiffs' first argument that the
Forest Service had failed to discharge its duties with respect to the effects of the
Forest Plan on lynx.

Defendants asked the Court to permit the Fleecer Project to

go forward even if it found that there was necessary work to be done on the forestlevel, and the Court rejected this contention, finding that it "misconstrued" the
legal question.
The Supreme Court has expressly rejected the argument that simply because
a plaintiff raises alternate theories-and does not prevail on each and every onedoes not mean that a plaintiff cannot recover legal fees in relation to the time it
spent developing and briefing those alternate theories.
436.

See Hensley, 461 U.S. at

The Supreme Court has instructed that the proper inquiry is whether the

plaintiff obtained the desired result:
Where a plaintiff has obtained excellent results, his attorney should
recover a fully compensatory fee. Normally this will encompass all
hours reasonably expended on the litigation, and indeed in some cases

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of exceptional success an enhanced award may be justified. In these
circumstances the fee award should not be reduced simply because the
plaintiff failed to prevail on every contention raised in the lawsuit.
Litigants in good faith may raise alternative legal grounds for a desired
outcome, and the court's rejection of or failure to reach certain grounds
is not a sufficient reason for reducing a fee. The result is what matters.

Id. at 435 (internal citations and footnotes omitted).
Further, each of Plaintiffs' claims are related because they share "a common
core of facts or are based on related legal theories."

Krueger, 2014 WL 46498, at

*4 (citing Schwarz v. Secy ofHealth & Human Servs., 73 F .3d 895, 903 (9th
Cir.1995)).

Plaintiffs' claims contain a common core of facts because they allege

improper compliance with various environmental laws in the Forest Service's
authorization of the Plan and Project.

While Plaintiffs prevailed by showing that

the agency had not fully discharged its obligation to consider the impact of its
forest-wide practices on lynx, Plaintiffs came very close to prevailing in their claim
that the Forest Service had not conducted a "full and fair discussion" of the impact
from temporary roads on elk.
Plaintiffs are the "prevailing party."

By obtaining an enforceable judgment

against the Forest Service that preserved the Court's 2012 injunction pending
consultation under the ESA, Plaintiffs obtained sufficient success for an award to
be appropriate for the legal work in its entirety.

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II.

Hourly Rate

Plaintiffs request a 2018 hourly rate of $355 for Ms. Smith and $415 for Mr.
Bechtold.

This figure is based on the Court's 2013 rate of $230 for Ms. Smith

and $290 for Mr. Bechtold.

Krueger, 2014 WL 46498, at *5-6.

In light of the

Ninth Circuit Appellate Commissioner's unreported decision in Pollinator

Stewardship Council v. US. Environmental Protection Agency, No. 13-72346,
2017 WL 3096105 (9th Cir. June 27, 2017), which awarded fees to attorneys
located in Seattle and San Francisco, Plaintiffs argue that a $25 per hour annual
increase is reasonable.

(Doc. 78 at 6.)

Taking their previously awarded 2013

rates, Plaintiffs request a $25 increase to Ms. Smith and Mr. Bechtold's hourly
rates for each of the past five years.
Defendants do not contest that a $230 hourly rate for Ms. Smith and a $290
hourly rate for Mr. Bechtold represents a reasonable starting point.

However,

Defendants take issue with the requested $25 annual increase, noting that the
District of Montana has previously recognized a $10 annual increase as the going
rate.

(Doc. 87 at 11.)
The ESA permits awards of"reasonable" attorneys' fees.

Reasonable fees

are determined by multiplying a reasonable number of hours by a reasonable
billing rate, a calculation known as the "lodestar."

Hensley, 461 U.S. at 433.

A

reasonable hourly rate is determined by the prevailing market rate in the relevant

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legal community.

Blum v. Stenson, 465 U.S. 886,895 (1984).

This rate should

represent what a lawyer of comparable skill, experience, and reputation could
command in the same community for comparably complex litigation.

Id.

In the

environmental law context, the District of Montana has defined the "relevant legal
community" as "environmental attorneys in Montana with commensurate
experience, reputation, and skill."

All. for the Wild Rockies v. US. Dep 't of

Agric., 2016 WL 4766234, at *7 (D. Mont. Sept. 13, 2016).

The District of Montana has previously recognized a $10 increase in hourly
rate as reasonable.

See, e.g., Weldon, 921 F. Supp. 2d at 1080 (awarding Ms.

Smith $210/hour for work performed in 2011 and increasing the hourly rate by
$10/hour to $220/hour for work in 2012).
Stewardship is not illuminating.

Plaintiffs' reliance on Pollinator

First, that case did not directly address the issue

of an appropriate annual increase, even though it seems to have awarded two
attorneys upwards of $20 over their previous years' hourly rate.
Stewardship Council, 2017 WL 3096105, at *6.

Pollinator

Second, Seattle and San

Francisco are not the prevailing legal community and so a reasonable annual
increase in those cities does not control what is "reasonable" for the District of
Montana.

Further, Pollinator Stewardship provides no information to indicate

whether other circumstances or factors may have warranted some or part of the
raise.

Plaintiffs read Pollinator Stewardship to mean that a $25 hourly raise every
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year is appropriate, but this is not necessarily so.

Other factors, such as additional

specialized training or market competition, may cause an attorney to raise his or
her rates more steeply one year than the next.

The Court declines to read

Pollinator Stewardship to say that a $25 hourly increase every year is

"reasonable."
In principle, Plaintiffs' request for an annual raise is reasonable.

Not only

do costs of living rise, but an annual raise reflects an attorney's additional year of
skill and experience.

However, the linear model proposed by Plaintiffs-in that it

ties hourly rate directly to years in practice-is lacking.
Depth of experience and years of experience are imperfectly correlated, and
some attorneys demonstrate experience and legal judgment beyond their years of
practice.

While an attorney's number of years in practice is a good starting point

to estimate an attorney's depth of experience, other factors-such as his or her
courtroom experience, continued education, mentorship, and prior work on
complex cases-are also highly indicative of an attorney's experience and overall
"quality of representation."

See Blum, 465 U.S. at 898-99.

To estimate an

attorney's proficiency in contrast to the other attorneys within the prevailing
market, some courts have looked at the role the attorney played in the litigation
(whether the attorney was first or second chair) or the attorney's effectiveness in
the courtroom.

See Jnsinga v. Cooperatieve Centrale Raiffeisen Boerenleenbank

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B.A., 478 F. Supp. 2d 508, 510 (S.D. N.Y. 2007) (awarding a relatively high hourly

rate justified by the attorney's "highly effective" courtroom demeanor); Schwarz,
73 F .3 d at 908 (approving of a higher hourly rate for lead counsel).

The Ninth

Circuit has also noted that what an attorney bills and receives, while not
determinative, is not irrelevant because the attorney and his or her clients are a part
of that market.

Carson v. Billings Police Dep't, 470 F.3d 889,892 (9th Cir.

2006).

A. Mr. Bechtold
As a starting point, both Plaintiffs and Defendants agree that a $290 rate for
work performed by Mr. Bechtold in 2013 is reasonable.

Having reviewed Mr.

Bechtold's qualifications along with the Court's knowledge of Mr. Bechtold from
his previous Court appearances, the Court agrees.
Mr. Bechtold is a highly skilled attorney who possess considerable expertise
in environmental litigation.

Mr. Bechtold graduated from Harvard with a

concentration in biology and focus in ecology.

He received an M.S. in

Environmental Studies where he specialized in public land use and policy.

While

in law school, Mr. Bechtold served as an editor of the Public Land and Resources

Law Review and published an article on the listing of the bull trout under the
Endangered Species Act.

He graduated in 2000 with high honors.

And in the 19

years since graduation, Mr. Bechtold has built a successful practice in
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environmental litigation.

He has appeared before the Court on numerous

occasions, many of them with Ms. Smith as co-counsel.
While the Court is unpersuaded that a $25 annual raise is reasonable per se,
the Court does not intend this conclusion to discredit, in any way, the experience,
skill, and reputation of Mr. Bechtold.

Following the past practice in the District

of Montana to award a $10 per year increase, the Court recognizes a 2018 hourly
rate of $340 as fair and consistent for an attorney of Mr. Bechtold's caliber.

B. Ms. Smith
Ms. Smith asks for a 2018 hourly rate of$355.

Defendants argue this rate

is unreasonably high.
To determine an attorney's reasonable hourly rate, the Court looks to the
"prevailing legal community."

Here, the Court considers what other

environmental litigators of"comparable experience, skill and reputation,"-Mr.
Bechtold included-are charging or receiving for their work.

Id.

Determining

an hourly rate in parity with similarly situated lawyers affords "fairness,
predictability, and uniformity."

Carson, 470 F.3d at 892.

The Court has already determined that an hourly rate of $340 for work
performed by an experienced and highly capable environmental attorney in the
handling of a complex matter is reasonable.

Therefore, $340 is a fair rate for Ms.

Smith assuming that she is an attorney of "comparable experience, skill and
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reputation."
Having reviewed Ms. Smith's qualifications along with the Court's
knowledge of Ms. Smith from her previous appearances, the Court is convinced
that she is deserving of a competitive rate.

Ms. Smith holds a graduate degree in

Environmental Studies and a J.D. with a certificate in Environmental Law.
During law school, Ms. Smith was an editor of the Public Land and Resources
Law Review, a member of the National Moot Court Team, and published three
scholarly articles on environmental policy issues.
high honors, but Ms. Smith was class valedictorian.

Not only did she graduate with
Now, a decade into private

practice, Ms. Smith is a sought-after litigator with extensive courtroom experience.
While the Court's 2013 award of attorney's fees recognized the difference in
the years of practice between Mr. Bechtold and Ms. Smith, the Court is no longer
convinced that this is the most significant metric to quantify "experience."

Ms.

Smith, who had only been practicing for five years at that time, is now a decade
into her career and from the Court's evaluation of her work, she has obtained
significant expertise.
In evaluating an attorney's experience, the Court considers not only Ms.
Smith's experience as an environmental litigator and leading attorney at her firm,
but it considers the crucial role Ms. Smith played in this litigation and the value
she brings her clients as a "highly effective" oral advocate.

See Jnsinga, 4 78 F.

Supp. 2d at 510.

Plaintiffs' billing records indicate that Ms. Smith carried the

lion's share of the work in this litigation, which is not to discredit the valuable
work performed by Mr. Bechtold in revising, reviewing, and strategizing with Ms.
Smith.

However, it is clear that Ms. Smith is the primary brief drafter and oral

advocate, a position similar to that of first chair.

After holistic consideration, the

Court is convinced that Ms. Smith and Mr. Bechtold are attorneys of "comparable
experience, skill and reputation," so that an hourly rate that is appropriate for Mr.
Bechtold and consistent with rates in the prevailing legal community is also
appropriate for Ms. Smith.

C. Reasonable Rate for Fee Related Work
Defendants argue that the Court should reduce the hourly rate for work
performed on the motion for attorneys' fees, because such work does not require
specialized knowledge.

(Doc. 87 at 15.)

The Court agrees.

Because attorneys'

fees are calculated by taking into account the complexity of the litigation and an
attorney's specialized expertise, the rates awarded for environmental litigation do
not justify the same for routine matters.

See Krueger, 2014 WL 46498, at *6.

This approach is consistent with the District's past practice.

See id.

Even the

Affidavit submitted by Matthew Bishop to support Ms. Smith's request of
attorneys' fees recognizes that the EAJA statutory hourly rate of $200.87 is
reasonable for the preparation of a fee petition.
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(Doc. 78-1 at 16).

Therefore,

the Court will award $200.87 for work performed on the motion for attorneys'
fees.

III.

Hours

Finally, Defendants request that the Court reduce the number of hours
requested by Plaintiffs on account that they are "vague, improperly billed to the
government, and excessive."

On the contrary, Plaintiffs' records are thorough,

accurate, and reflect a careful level of detail.

Plaintiffs contend that they have

billed according to customary billing practices in private practice and have billed
only as reasonably necessary to achieve a good outcome.

The Court finds

nothing in Plaintiffs' records that cast any doubt as to the necessity or
reasonableness of the work performed.
Accordingly, the Court will award fees as follows:
Hourly Rate

Hours

Total

$340

62.8

$21,352.00

$200.87

4.4

$883.83

$340

13.2

$4,488.00

$200.87

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$180.78

Rebecca Smith
2018 District Court
Fee petition
Timothy Bechtold
2018 District Court
Fee petition

$26,904.61

Total

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Therefore, IT IS ORDERED that Plaintiffs' Motion for Attorney Fees is
(Doc. 77) GRANTED.

The Court will reduce the requested amount and award

Defendants to pay $26,904.61.
DATED this 4th day of April, 2019.

Dana L. Christensen, Chief istrict Judge
United States District Court

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