Alliance for the Wild Rockies v. Savage et al

Filing 121

ORDER granting in part and denying in part 92 Motion for Attorney Fees; granting in part and denying in part 112 Supplemental Motion for Attorney Fees. Alliance is entitled to a total fee award of $163,233.53. Signed by Judge Dana L. Christensen on 7/22/2019. (ASG)

FILED
VIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

ALLIANCE FOR THE WILD
ROCKIES,

JUL 2 2 2019
Clerk, U.S Courts
District Of Montana
Missoula Division

CV 15-54-M-DLC

Plaintiff,
ORDER
vs.
CHRISTOPHER SAVAGE, Kootenai
National Forest Supervisor, FAYE
KRUEGER, Regional Forester of
Region One of the U.S. Forest Service,
UNITED STATES FOREST
SERVICE, an agency of the U.S.
Department of Agriculture, and
UNITED STATES FISH &
WILDLIFE SERVICE, an agency of
the U.S. Department of the Interior,
Defendants,
and
KOOTENAI FOREST
STAKEHOLDER COALITION, a
Montana Corporation, and LINCOLN
COUNTY, a political subdivision of
the State of Montana,
Defendant-Intervenors.

Before the Court are the Motion for Attorney Fees (Doc. 92) and
Supplemental Motion for Attorney Fees (Doc. 112) of Plaintiff Alliance for the

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Wild Rockies ("Alliance"). Alliance seeks a total award of $215,085.90 in fees
and costs under the Endangered Species Act ("ESA") and/or the Equal Access to
Justice Act ("EAJA"). The Federal Defendants, collectively referred to as "Forest
Service" throughout this Order, oppose the motion, arguing that attorneys' fees are
improper and, in the alternative, that Alliance should receive no more than
$30,282.77. The Court grants Alliance's motions in part, awarding a total of
$163,233.53.
BACKGROUND

Because the parties are familiar with the history of this case, the Court
provides only a brief background summary. Alliance filed suit in 2015, bringing
five claims for relief. Alliance withdrew one claim, and the Court granted
summary judgment to the Forest Service and the Defendant-Intervenors on the
remaining four claims. All for the Wild Rockies v. Savage, 375 F. Supp. 3d 1152,
1154-55 (D. Mont. 2019). Alliance appealed from this Court' s determinations
that: (1) the Forest Service did not violate the ESA by not completing
reconsultation regarding Canada lynx prior to proceeding with the challenged East
Reservoir Project (the "Project"); and (2) the Forest Service did not violate the
National Forest Management Act ("NFMA") when it authorized road construction
within the Tobacco BORZ, an area outside of the grizzly bear recovery zone where

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grizzly bear activity is nonetheless significant. See All. for the Wild Rockies v.

Savage, 897 F.3d 1025 (9th Cir. 2018).
Solely on the basis of its ESA argument, Alliance moved for a preliminary
injunction pending appeal, which the Ninth Circuit granted. All. for the Wild

Rockies v. Savage, No. 16-35589, 2016 WL 4800870 (9th Cir. Sept. 13, 2016).
While the injunction was in effect, the Forest Service completed the ESA
reconsultation Alliance requested in this litigation. All. for the Wild Rockies, 897
F.3d at 1029-30. Because reconsultation was complete, Alliance's ESA claim was
dismissed as moot, and the Ninth Circuit vacated this Court's prior determination
that the Forest Service had not violated the ESA. Id.
As for the single remaining claim, the Ninth Circuit sided with Alliance,
holding that the Forest Service acted arbitrarily and capriciously by failing to first
assess the baseline road mileage within the BORZ, in violation ofNFMA. Al/for

the Wild Rockies v. Savage, 897 F.3d 1025 (9th Cir. 2018). Following remand
from the Ninth Circuit, this Court remanded the matter to the Forest Service
without vacating the operative Record of Decision ("ROD"). All. for the Wild

Rockies, 375 F. Supp. 3d 1152.
LEGAL STANDARD

Alliance seeks fees under the EAJA and/or the ESA. Fee awards under the
EAJA are nondiscretionary. 28 U.S.C. § 2412(d)(l)(A). "A court shall award to a

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prevailing party other than the United States fees and other expenses ... , unless
the court finds that the position of the United States was substantially justified or
that special circumstances make an award unjust." Id.
Under the ESA, in contrast, "[t]he court . .. may award costs oflitigation
(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). The
standard is intentionally looser than the EAJA's "prevailing party" standard; it
"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." Ruckelshaus v. Sierra Club, 463 U.S. 680, 688 (1983) (discussing
the appropriate standard of the Clean Water Act); see Ass 'n of Cal. Water Agencies

v. Evans, 386 F.3d 879, 884 (9th Cir. 2004) (explaining the application of
Ruckelshaus to fee disputes brought under the ESA).
Trial courts are best situated to decide fee disputes, and their decisions are
reviewed for abuse of discretion. Cal. Water, 386 F.3d at 883. "A district court
abuses its discretion if its decision is based on an erroneous conclusion of law or if
the record contains no evidence on which it rationally could have based its
decision." Fischel v. Equitable Life Assurance Soc y, 307 F .3d 997, 1005 (9th Cir.
2002) (quotation omitted). "[T]rial courts need not, and indeed should not, become
green-eyeshade accountants. The essential goal in shifting fees (to either party) is

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to do rough justice, not to achieve auditing perfection." Fox v. Vice, 563 U.S. 826,
838 (2011).
DISCUSSION

Before determining the appropriate award, the Court first considers the
threshold issue of Alliance's entitlement to fees under both the ESA and the EAJA.
An award is "appropriate" under the ESA, and Alliance is a "prevailing party"
under the EAJA, and Alliance is accordingly entitled to a fee award. Ultimately,
the Court adjusts the amount of the requested award to reflect Alliance's overall
success.

I.

Entitlement to Fees

A.ESA
The parties dispute whether Alliance is entitled to an award of fees under the
ESA. Ultimately, Alliance did not receive a binding, final judgment on its ESA
claim, which was dismissed as moot. The question here is whether the injunction
issued by the Ninth Circuit, which precipitated the mootness determination, entitles
Alliance to fees. It does.
The ESA authorizes "any person" to "commence a civil suit on his own
behalf ... to enjoin any person, including the United States and any other
governmental instrumentality or agency .. . , who is alleged to be in violation of
any provision of [the ESA] ...." 16 U.S.C. § 1540(g)(l)(A). A court considering

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a citizen suit seeking enforcement of the ESA "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). Although it
is not explicit in the text of the statute, "the Supreme Court has read a prevailing
party requirement"- if somewhat loose-"into the ESA." Marbled Murrelet v.

Babbitt, 182 F.3d 1091, 1095 (9th Cir. 1999) (citing Ruckelshaus, 463 U.S. at 682
& n.1 ); see also Ctr. for Biological Diversity v. Marina Point Dev. Co., 566 F .3d
794, 805 (9th Cir. 2009).
The legal standard applicable to plaintiffs seeking fee awards under the ESA
is somewhat unsettled. In 1984, the Ninth Circuit held that the touchstone is
whether the party seeking fees "ma[d]e a substantial contribution to the goals of
[the ESA]." Carson-Truckee Water Conservancy Dist. v. Secy ofthe Interior, 748
F.2d 523,526 (9th Cir. 1984) (quoting Sierra Club v. Gorsuch, 672 F.2d 33, 42
(D.C. Cir. 1982), rev 'don other grounds by Ruckelshaus, 463 U.S. 680). The
Court has since made it clear that the "substantial contribution" standard no longer
applies to "prevailing defendants," who may be entitled to a fee award even if their
litigation position does not advance the goals of the ESA.1 Marbled Murrelet, 182

1

It is a rare, but not unfathomable, case in which a defendant, rather than a plaintiff, advances
the goals of the ESA. See, e.g., Modesto Irrigation Dist. V Gutierrez, 619 F.3d 1024 (9th Cir.
2010) (addressing a challenge to the listing of steelhead as a threatened species under the ESA).
In any event, Marbled Murrelet likely made fees more available to prevailing defendants in ESA
cases; it is unclear whether it should also be understood to make fees less available to prevailing
plaintiffs.

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F .3d at 1094 (emphasis added). Trial courts have, at times, continued to apply the
substantial contribution standard to plaintiffs' fee requests. See All. for the Wild

Rockies v. US. Dep't ofAg., CV 11-76-M-CCL, 2016 WL 4766234, at *4 (D.
Mont. Sept. 13, 2016); S. Yuba River Citizens League v. Nat '! Marine Fisheries

Serv., No. CIV S---06---2845 LKK/JFM, 2012 WL 1038131, at *3 (E.D. Cal. March
27, 2012); see also Envtl. Prot. Info. Ctr. v. Pac. Lumber Co., 103 Fed. Appx. 627,
629 (9th Cir. 2004) ("We need not resolve this doctrinal dispute, because [the]
motion for attorneys fees satisfied both standards.").
In this instance, the precise standard is irrelevant, as Alliance is a prevailing
party, and its lawsuit substantially contributed to the goals of the ESA. 2 Thus, the
Court will first explain why Alliance is a prevailing party before turning to whether
this lawsuit advanced protections for an endangered or protected species.
"[T]he term 'appropriate' modifies but does not completely reject the
traditional rule that a fee claimant must 'prevail' before it may recover attorney's
fees." Ruckelshaus, 463 U.S. at 686. In Ruckelshaus the Supreme Court,
considering identical language within the Clean Air Act, held that the "whenever

2

The Court notes that the two-step inquiry it applies in an abundance of caution appears to
contract, rather than "expand[,] the class of parties eligible for fee awards" in comparison to
those eligible under the "prevailing party" standard. Ruckelshaus, 463 U.S. at 688. This
problem is alleviated somewhat by the continued survival of the "catalyst theory" in ESA
lawsuits, which essentially expands the definition of "prevailing party." See Cal. Water, 386
F.3d at 884 (applying catalyst theory to ESA fee dispute despite its obsolescence under the
"prevailing party" standard under which it was developed). In any event, the concern is
academic, as Alliance has satisfied any potentially applicable standard.

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... appropriate" standard "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." Id. at 688. "Put differently, ...

Congress intended to eliminate both ... restrictive readings of 'prevailing party'
... and the necessity for case-by-case scrutiny by federal courts into whether
plaintiffs prevailed 'essentially' on 'central issues."' Id. (citations omitted). The
Court went on to explain that "Congress understood 'prevailing party' and
'partially prevailing party' as two quite different things. Id. at 689.
Here, however, the Court need not parse the distinction too carefully, as
Alliance satisfies the more demanding "prevailing party" standard. 3 "[W]hen a
plaintiff wins a preliminary injunction and the case is rendered moot before final
judgment, either by the passage of time or other circumstances beyond the parties'
control, the plaintiff is a prevailing party eligible for a fee award." Higher Taste,
Inc. v. City of Tacoma, 717 F.3d 712, 717 (9th Cir. 2013). In that instance,

"although the plaintiff never secured a final judgment granting permanent
injunctive relief, the preliminary injunction ended up affording all the relief that

3

It could be that the "partially prevailing party" standard set forth in Ruckelshaus simply
authorizes an award of fees beyond those incurred in pursuing Alliance's ESA claim. As a
logical corollary to the discussion of Ibrahim v. U.S. Dep'I ofHomeland Sec., 912 F.3d 1147 (9th
Cir. 2019) (en bane), see infra p. 23- 26, that authorization may well be unnecessary, as
application of Ibrahim leads to the same result. However, the Court concludes that, even in the
absence of Ibrahim, it would reach the same result independently by applying the "partially
prevailing party" standard.

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proved necessary." Id.; see also Watson v. Cty. ofRiverside, 300 F.3d 1092, 109596 (9th Cir. 2002) ("Having succeeded in winning a preliminary injunction . .. ,
Watson obtained significant, court-ordered relief that accomplished one of the
main purposes of his lawsuit. This is so even though he failed to prevail on his
other claims.").
After this Court issued its decision on the merits, concluding that the Forest
Service was entitled to summary judgment on all four of Alliance's claims,
Alliance appealed to the Ninth Circuit and moved for an injunction pending appeal.
The motion was grounded singularly in the ESA claim, with Alliance arguing that
it was entitled to an injunction to avoid the irreparable harm likely to occur if the
Forest Service's planned timber sale went forward without agency reconsultation.
The Ninth Circuit agreed, granting the injunction and staying the Project.
While the injunction was in force but before the Ninth Circuit issued its
opinion on the merits, the Forest Service completed reconsultation. All. for the

Wild Rockies, 897 F.3d at 1031. The Court therefore concluded that Alliance
"obtained all that it sought with [its lynx ESA claim]," rendering the claim moot.

Id. The Ninth Circuit remanded with instructions to vacate the portion of this
Court's judgment addressing the reconsultation claim and to dismiss the claim as
moot, which this Court did. Id.; All.for the Wild Rockies, 375 F. Supp. 3d at 1155.
These events are immediately analogous to those of Higher Taste and Watson;

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here, as there, "the plaintiffw[on] a preliminary injunction and the case [wa]s
rendered moot before final judgment, either by the passage of time or other
circumstances beyond the parties' control." Higher Taste, 717 F.3d at 717.
The Forest Service recognizes that preliminary injunctive relief may be
grounds for classifying a litigant as a prevailing party. (Doc. 118 at 11- 12.) It
nonetheless contends that the injunction issued pending appeal is insufficient
because the Ninth Circuit did not make a "judicial determination that the claims on
which the plaintiff obtain[ed] relief are potentially meritorious." (Doc. 118 at 12
(quoting Higher Taste, 717 F .3d at 715.) It is true that the Court did not explain its
thinking in its order granting the injunction pending appeal. But it found the
Winter test satisfied, meaning that-at minimum-the Court determined that

Alliance raised "serious questions going to the merits." All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011). Thus, even if the Forest Service was

correct that the Court should look beyond the functional effect of an injunction into
the merits of arguments presented to and decided by a different court-a dubious
proposition4- the Court must conclude that the Ninth Circuit found Alliance's
ESA claim to be "potentially meritorious." Higher Taste, 717 F.3d at 715.

4

The Forest Service's proposed standard is particularly problematic in the context of a case such
as this, where this Court made its own determination of the merits of Alliance's arguments and
found them lacking. It is not the role of the district court to question decisions made by the
circuit court, especially when the district court's conclusions are disturbed on appeal.

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The Court is similarly unconvinced by the Forest Service's position that
Alliance must show that its lawsuit directly caused reconsultation if it is to prevail
in this fee dispute. (Doc. 118 at 13.) As a legal matter, a "prevailing party" need
not show causation. Compare Cal. Water, 986 F.3d at 886 (requiring "clear,
causal relationship" under catalyst theory), with Higher Taste, 717 F.3d 712
(imposing no such requirement under prevailing party theory). And, more
practically speaking, the preliminary injunction did, in fact, cause the agencies to
reconsult prior to proceeding with the Project because the injunction delayed the
Project. Alliance did not seek to force reconsultation- which would have occurred
in any event-but to delay the project until reconsultation was complete. Alliance
has demonstrated that it was the prevailing party as to its lynx ESA claim.
On the other hand, the Court disagrees with Alliance that it brought-and
prevailed upon-a grizzly bear ESA claim. The Ninth Circuit agreed with
Alliance that the Forest Service failed to comply with NFMA when it authorized
road construction in an area with road restrictions in place for the protection of
grizzly bears. But the fact that the challenged activity could affect a protected
species does not transform Alliance's NFMA claim into an ESA claim. The Ninth
Circuit determined that the Forest Service violated its own standards, contrary to
the requirements of NFMA. Whether those standards are themselves a means of
implementing the ESA is neither here nor there. No court determined that the
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Forest Service violated the ESA by authorizing road construction and
reclassification in the Tobacco BORZ; indeed, Alliance did not ask either this
Court or the Ninth Circuit to do so.
Although a "substantial contribution" inquiry may be unnecessary, see supra
p. 6-7 & n.2, it is not harmful, as the standard is satisfied here. The ESA was
enacted to conserve endangered and threatened species. 16 U.S.C. § 1531(c).
While there is no evidence that the outcome of this litigation directly prevented the
taking of lynx, by forcing reconsultation prior to initiation of the project, the
injunction nonetheless "served the public interest by assisting the interpretation or
implementation ofthe [ESA]." Carson-Truckee, 748 F.2d at 525 (quoting Ala.

Power v. Gorsuch, 672 F .2d 1, 3 (D.C. Cir. 1982) (per curium)).
Because Alliance is a "partially prevailing party" as to its lynx ESA claim
and because this litigation "substantially contributed" to the purposes of the ESA,
an award is "appropriate" under the ESA.

B. EAJA
Generally, there is no need to conduct an independent EAJA analysis where,
as here, fees are authorized under the ESA. See Or. Nat. Desert Ass 'n v. Vi/sack,
No. 2:07--cv-01871-HA, 2013 WL 3348428, at *2. Here, however, Alliance' s
ESA claim was moot when the Ninth Circuit issued its opinion, and it cannot be
said that the lynx ESA claim is legally tethered to the remainder of Alliance's case.
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See Native Ecosystems Council v. Weldon, 921 F. Supp. 1069, 1080 (D. Mont.
2013) (granting fees under the EAJA and not the ESA). That said, Alliance meets
the threshold for fees under the EAJA in regard to its NFMA claim regarding road
activities in the Tobacco BORZ.
The Forest Service "do[es] not dispute that [Alliance] is a prevailing party
under [the] EAJA for the NFMA claim." (Doc. 118 at 9 n.4.) Rather, it argues
that its position ''was substantially justified" and that a fee award is therefore
inappropriate. 28 U.S.C. § 2412(d)(l)(A). Its argument is premised in large part
on this Court's orders granting summary judgment and remanding this matter to
the Forest Service without vacating the Record of Decision. While the Court
agrees that the Project itself was not fatally flawed, 5 it cannot square the substantial
justification standard with the Ninth Circuit's finding that authorization of road
activity within the Tobacco BORZ was arbitrary and capricious and therefore in
violation of the NFMA.
"If the government's position violates the Constitution, a statute, or its own

regulations, a finding that the government was substantially justified would be an
abuse of discretion." Meinholdv. US. Dep 'tofDefense, 123 F.3d 1275, 1278 (9th
Cir. 1997). Alliance prevailed in its argument that the authorization of road

5

This is not to say that the Forest Service's argument is irrelevant, only that it is misplaced. The
Court considers the parties' overall success in the lawsuit below, in its determination of the total
amount of the award. See infra p. 23-26.

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construction and reclassification violated NFMA because it was inconsistent with
an "unequivocal" Forest Plan provision. Alliance for the Wild Rockies, 897 F .3d at
1035. The Forest Service has not "prove[n] that that the regulation it violated was
ambiguous, complex, or required exceptional analysis." Meinhold, 123 F.3d at
1278. Indeed, it does not argue as much. Instead, it points to the support that its
position found from amici and this Court as evidence that its litigation position was
reasonable. Stating the obvious, this Court does not stand in review of the Ninth
Circuit, and its order granting summary judgment on this issue is irrelevant.
The EAJA "encourage[s] litigants to vindicate their rights where any level of
the adjudicating agency has made some error in law or fact and has thereby forced
the litigant to seek relief from a federal court." Liv. Keisler, 505 F.3d 913, 919
(9th Cir. 2007). Here, Alliance discovered and successfully challenged such an
error, and it is entitled to fees under the EAJA, at least as to its claim regarding
road activity in the Tobacco BORZ.
II.

Calculation of Fees
Under either the BAJA or the BSA, the court must begin by multiplying ''the

number of hours reasonably expended on the litigation . .. by a reasonable hourly
rate" to determine the lodestar. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
The BAJA authorizes an award of"reasonable attorney fees." 28 U.S.C. §

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2412(d)(2)(A). Similarly, under the ESA, "fees are calculated according to the
lodestar." S. Yuba River Citizens League, 2012 WL 1038131, at *2.
Whether the party seeking fees is entitled to the lodestar for pursuing
unsuccessful claims depends on the relationship between the successful and
unsuccessful claims and the parties' overall success in the litigation. Ibrahim v.

US. Dep 't ofHomeland Sec., 912 F.3d 1147 (9th Cir. 2019) (en bane). In this
instance, all of Alliance' s claims challenged the same action by the Forest Service,
and they are accordingly sufficiently related to one another for a full award.
However, because Alliance achieved a fairly modest victory, the Court slightly
discounts the lodestar.

A. Lodestar Calculation
Reasonable Hourly Rate
The Court first considers the reasonable hourly rate for the involved
attorneys. The standard for calculating a reasonable hourly rate differs between the
ESA and the BAJA. The EAJA includes a statutory cap (increased annually by the
Ninth Circuit to account for cost of living), which may be set aside if the "court
determines that ... a special factor . . . justifies a higher fee." 28 U.S.C.
§ 2412(d)(2)(A)(ii). "Special factor[s]" do not include "factors applicable to a

broad spectrum oflitigation," such as "[t]he novelty and difficulty of issues, the
undesirability of the case, the work and ability of counsel, and the results

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obtained." Pierce v. Underwood, 487 U.S. 552, 573 (1988) (internal quotation
marks and citation omitted). However, an increased hourly rate may be justified
for "attorneys having some distinctive knowledge or specialized skill needful for
the litigation in question." Id. at 572.

A rate is reasonable if the "fees ... are

adequate to attract competent counsel, but .. . do not produce windfalls to
attorneys." Blum v. Stenson, 465 U.S. 886, 895 (1984).
The Court agrees that Talasi Brooks, who was in her first year of law
practice (after a year of clerking), is entitled to the adjusted EAJA rate of$190.06
for 2014, the year in which all of her hours were incurred. Similarly, the Court
agrees that the other two attorneys who performed work on behalf of Alliance,
Rebecca K. Smith and Timothy Bechtold, should receive the adjusted EAJA rate of
$201.60 for time spent seeking attorneys' fees. See Native Ecosystems Council v.
Krueger, CV 12-27- M- DLC, 2019 WL 1489839, at *5 (D. Mont. April 4, 2019).

However, as to Smith's and Bechtold's work on the merits, the EAJA
adjusted rate is not "adequate to attract competent counsel." Blum, 465 U.S. at
895. A generalist could not have litigated this case with the same degree of
success; and a gifted but inexperienced environmental lawyer would have spent
significantly more time preparing this case. Smith and Bechtold have substantial
experience in environmental litigation, and "knowledge [and] specialized skill"
such as theirs is essential for complex, technical cases such as this. Thus, Smith's
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and Bechtold's reasonable hourly rates are determined without regard to whether
fees are awarded under the BAJA or the ESA.
This Court recently considered a request for fees under the ESA by Smith
and Bechtold. Native Ecosystems Council, 2019 WL 1489839. Adopting the
reasoning of that case, the Court will award an equivalent hourly rate to Smith and
Bechtold as attorneys of "comparable experience, skill and reputation." Id. at * 5
(quoting Carson v. Billings Police Dep't, 470 F.3d 889, 892 (9th Cir. 2006)). Both
Smith and Bechtold are excellent, experienced environmental litigators, and they
share equal responsibility- and should share equal benefit-for their success in
this litigation. 6 Similarly, the Court cannot justify a disparity in appellate fees
between Smith and Bechtold, both of whom are solidly in the prime of their careers
and operating at the highest level of public interest environmental litigation in
Montana. Thus, the Court will award each attorney an additional $100/hour for
appellate work.
The Court remains skeptical of a lockstep $25/hour annual increase in fees.
Now, as in Krueger, the Court applies a $IO/hour annual increase. In a sworn
declaration, Bechtold claims that "[s]imply increasing the fee by $IO each year
with no other adjustments or increases will not keep pace with cost of living

6

The hourly rates calculated do recognize the disparity in experience between Bechtold and
Smith early in this litigation, when Smith was closer to the beginning of her practice. However,
as discussed in Krueger, Smith has made significant gains over the course of the last decade.

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expenses." (Doc. 119-2 at 2.) However, an increase of $25/hour annually is
untenable. Assuming, conservatively, that 1500 hours a year are billed and
recovered, such an increase comes out to $37,500 each year-or, put another way,
$150,000 every four years. Certainly, overhead costs go up, and experience
warrants higher fees (in large part because fewer hours are to be reasonably
expended), but the Court is concerned with rubber-stamping a large annual
increase with no apparent limit. 7 Thus, the Court increases the $340/hour rate
awarded in Krueger for work performed in 2018 to $350/hour for work performed
in 2019. On the other hand, a $25/hour increase made good sense earlier in
Smith's career, as she grew from a skilled, if relatively inexperienced, litigator,
into Bechtold's peer. See Krueger, 2019 WL 1489839, at *5.
Thus, with the exception of fees incurred in preparing the fee petition, the
Court awards fees at the following rates:

7

The Court notes, too, that Alliance's reading of Pollinator Stewardship Council v. US. Envtl.
Prot. Agency, No. 13- 72346, 2017 WL 3096105 (9th Cir. June 27, 2017), is overly generous.
There, the Ninth Circuit Appellate Commissioner determined that a total increase of $100/hour
for an attorney practicing from 2008 to 2015 was reasonable, finding that the rate "reasonably
ha[s] increased in the past eight years." Id at *6. While it is true that the attorney charged
$100/hour more in 2013 than in 2009, the case does not hold Alliance's argument that a $25/hour
annual increase is per se reasonable. In fact, that attorney earned the same hourly fee from 2013
through 2015.

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2014

2015
District

Rebecca Smith

$400

$300

District

Appellate

$390

$305

$405

$310

Appellate

Appellate

$280

District

Timothy Bechtold

2016

$410

$320

$420

2017

2018

2019

District

Appellate

District

Appellate

Rebecca Smith

$330

$430

$340

$440

$350

Timothy Bechtold

$330

$430

$340

$440

$350

District

Appellate

1. Number of Hours

The Forest Service raises several challenges to the total amount of hours
claimed by Brooks, Smith, and Bechtold. The Forest Service argues that Alliance
improperly seeks an award for time spent responding to amici and for time
Bechtold spent watching oral argument. Alliance concedes that it is not entitled to
fees for the 4.6 hours spent responding to amici, and the Court accordingly will not
award fees for that time. The Court further finds that Alliance is not entitled to
compensation for the 0.5 hours that Bechtold spent watching the oral argument
online, and it also deducts that time.
The Forest Service additionally asks for a 20% reduction in overall time "for
... excessive pre-complaint time, Ms. Brooks' inexperience, and .. . vague billing
entries." (Doc. 118 at 26.) The Court disagrees that any such reduction is
necessary. Time expended prior to filing the complaint translates to less time

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expended after litigation commenced. And Brooks' s work likely reduced the
overall fee request, as Bechtold and Smith were able to avoid many hours of work
at their higher hourly rates. Finally, the billing entries submitted in support of the
petition are not vague, and the total number of hours spent on this complicated case
is not unreasonable. Thus, the Court will not reduce the overall award by any
percentage for excessive time.

B. Expert Fees
Alliance also seeks $3,092.50 in expert witness fees incurred in its pursuit of
the present fee petition. The Court will not award any expert fees, as it finds that
the "declarations are neither necessary nor helpful." Cascadia Wild/ands v. BLM,
987 F. Supp. 2d 1085, 1096 (D. Or. 2013) (internal quotation marks and citation
omitted); see also All. for Wild Rockies v. US. Dep 't ofAgric., No 9: 1 l-CV-76-MCCL, 2016 WL 4766234, at *4 (D. Mont. Sept. 13, 2016). Indeed, as mentioned
above, this Court recently considered a fee request from the same attorneys, and it
had no need to consult the declarations prepared by Alliance's experts.

C. Costs
Alliance requests $1 ,982.69 in costs, comprising both district court and nontaxable appellate costs. The Forest Service argues that the Ninth Circuit ordered
each party to bear its own costs on appeal and that Alliance therefore may recover
no more than $443 .56 in district court costs. Alliance argues that the Ninth
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Circuit's order extends only to those taxable costs that would be submitted to the
appellate court in a bill of costs. Because the Ninth Circuit "repeatedly [has]
allowed prevailing parties to recover non-taxable costs where statutes authorize
attorney's fees awards to prevailing parties," Alliance has the stronger argument.

Grove v. Wells Fargo Fin. Cal., Inc., 606 F.3d 577, 580 (9th Cir. 2010). Thus, the
Court will include $1 ,982.69 in its calculation of Alliance's fee award.

D. Baseline Calculation
Applying the rates and hours discussed above, the Court reaches the
following amount, inclusive of the lodestar and appropriate additional fees and
costs:

Rebecca K. Smith
Rate

Hours

Total

2015 District Court

$280

135.1

$37,828.00

2016 District Court

$305

37.2

$11,346.00

2016 Appellate Court

$405

74

$29,970.00

2017 Appellate Court

$430

68.1

$29,283.00

2018 Appellate Court

$440

2.7

$1,188.00

2018 District Court

$340

35.6

$12,104.00

2019 District Court

$350

1.2

$ 420.00

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2018 Fee Petition

$201.60

17.5

$3,528.00

2019 Fee Petition

$201.60

25.7

$5,181.12

Total

$130,848.12

Rate

Hours

Total

2014 District Court

$300

45.7

$13,710.00

2015 District Court

$310

75.1

$23,281 .00

2016 District Court

$320

14.2

$4,544.00

2016 Appellate Court

$420

27.1

$11,382.00

2017 Appellate Court

$430

9.7

$4,171.00

2018 District Court

$340

3.9

$1,326.00

2018 Appellate Court

$440

5.2

$2,288.00

2019 District Court

$350

1.1

$ 385.00

Fee Petition

$201.60

11.0

$2,217.60

Total

$63,304.60

Rate

Hours

Total

$190.06

41.6

$7,906.50

Total

$7,906.50

Timothy M. Bechtold

Talasi Brooks

2014 District Court

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Non-taxable Costs on Appeal,
District Court Costs, and
Other Expenses

$1,982.69

Grand Total

III.

$204,041.91

Compensation for Unsuccessful Claims

The question remains whether Alliance is entitled to compensation for all
work performed in this litigation, even though it was decidedly not a prevailing
party as to three of its five original claims and ultimately received fairly modest
victories on the lynx reconsultation and Tobacco BORZ road activity claims.
"Where a plaintiff has obtained excellent results, [its] attorney should
recover a fully compensatory fee ... [which] should not be reduced simply
because the plaintiff failed to prevail on every contention raised in the lawsuit."

Hensley, 461 U.S. at 437 (1983). "[W]hen a plaintiff prevails on only some of his
claims for relief or achieves limited success[,]" courts must consider: (I) the
relationship between the claims on which the plaintiff prevailed and those on
which he did not; and (2) whether the plaintiffs degree of success justifies an
award for fees incurred in pursuing related, but ultimately unsuccessful, claims.

Ibrahim, 912 F.3d at 1172 (internal quotation marks and citation omitted).8
8

Ibrahim, like Hensley before it, involves an award of fees under the EAJA. Because both
parties rely exclusively on the Hensley-Ibrahim line of cases to justify their arguments regarding
whether a full fee award is appropriate, the Court similarly will apply Ibrahim without
considering whether it properly applies where, as here, a plaintiff is entitled to an award of fees
under both the ESA and the EAJA.

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Alliance achieved "limited success" in this lawsuit. Sorenson v. Mink, 239
F.3d 1140, 1147 (9th Cir. 2001). It initially brought five claims and can be
considered a prevailing party as to two of those claims, as outlined above.
Alliance sought to enjoin the Project in its entirety, to force the Forest Service back
to the drawing board, and it received a delay in the project during litigation and a
pause on road activities within the Tobacco BORZ-affecting approximately 20%
of the landmass encompassed by the Project-while the Forest Service recomputes
road densities. Thus, the the two-step Ibrahim test governs whether Alliance is
entitled to a full award.
A. Relationship between Claims

There need not be "commonality of both facts and law to conclude that
claims are related. .. . [T]he focus is to be on whether the unsuccessful and
successful claims arose out of the same course of conduct." Ibrahim, 912 F.3d at
1174-77 (internal quotation marks and citations omitted). In this instance, it is
clear enough that authorization of the East Reservoir Project is the challenged
course of conduct, and it is common to all of Alliance's claims. The first step is
easily satisfied.
B. Level of Success

The second step poses a greater obstacle to a full fee award. The Court finds
that, although most of the time spent is compensable, it cannot be said that
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Alliance's overall level of success was "excellent." Ibrahim, 912 F.3d at 1178
( quoting Hensley, 461 U.S. at 435). Rather, the Court would classify the result as
fair to good for Alliance, which asked the Court to enjoin implementation of the
entire Project. This is not a case in which Alliance "achieved [its] primary goal of
litigation," but Alliance did receive relief on a smaller scale. See All. for Wild
Rockies v. Krueger, No. CV 12-150-M-DLC, 2014 WL 46498, at *4 (D. Mont.

Jan. 3, 2014).
Nor can it be said that this case is likely to have a broad impact on the
parties or other potential litigants. On this point, the present case is not
comparable to Ibrahim, in which the plaintiff "established important principles of
law" and achieved many firsts, having been recognized as:
the first person ever to force the government to admit a terrorist
watchlisting mistake; to obtain significant discovery regarding how the
federal watchlisting system works; to proceed to trial regarding a
watchlisting mistake; to force the government to trace and correct all
erroneous records in its customer watchlists and databases; to require
the government to inform a watchlisted individual of her [Terrorist
Screening Database] status; and to admit that it has secret exceptions to
the watchlisting reasonable suspicion standard.
Ibrahim, 912 F.3d at 1178. Alliance raises no argument that this litigation has

significantly advanced environmental law or blazed new trails to justify a full fee
award.
That said, most of the work performed to litigate Alliance's unsuccessful
claims served Alliance in its successful pursuit of the lynx ESA and Tobacco
-25-

BORZ claims. Thus, the Forest Service's position- that the Court should cut 4/5
of the requested fees because the Ninth Circuit opinion only found for Alliance as
to 1/5 of the claims originally brought-is too extreme. Instead, the Court will
deduct a modest 20% from the lodestar to account for Alliance's somewhat limited
success in the case overall. Additionally, because the Court deducts 20% from the
requested fees incurred in litigating the merits, it also discounts the fee litigation
award by 20%. See Thompson v. Gomez, 45 F.3d 1365, 1367-68 (9th Cir. 1995).
Thus, the Court will award a total amount of $163,233.53 to Alliance.
Accordingly, IT IS ORDERED that:
1. Plaintiffs Motion for Attorney Fees (Doc. 92) and Supplemental Motion for
Attorney Fees (Doc. 112) are GRANTED IN PART and DENIED IN
PART; and
2. Alliance is entitled to a total fee award of $163,233.53.
DATED this 2.''Z..~ay of July, 2019.

Dana L. Christensen, Chief Judge
United States District Court

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