Oregon Natural Desert Ass'n et al v. U.S. Forest Service et al

Filing 686

ORDER by Judge Ancer L. Haggerty signed on 7/2/2013 granting in part Motions for Attorney Fees, (541) in case 3:03-cv-00381-HA and (664) in case 2:07-cv-01871-HA, as outlined in Order. Associated Cases: 2:07-cv-01871-HA, 3:03-cv-00381-HA (sp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PENDLETON DIVISION

OREGON NATURAL DESERT ASS'N,
CENTER FOR BIOLOGICAL DIVERSITY,
and WESTERN WATERSHEDS PROJECT,
Plaintiffs,

Case No. 2:07-cv-01871-HA
[Related Case No. 2:08-cv-00151-HA]
[Related Case No. 3:03-cv-00381-HA]
ORDER

v.
TOM VILSACK, eta/.,
Defendants,

v.
OREGON CATTLEMEN'S ASS'N, eta!.,
Defendant-Intervenors.

HAGGERTY, District Judge:
Plaintiffs in case numbers 2:07-01871-HA and 3:03-00381-HA (intervenor defendants in
2:08-00151-HA) Oregon Natural Deseti Association, Westem Watersheds Project, and Center
for Biological Diversity (collectively refened to as "plaintiffs" or "ONDA") sought declaratmy

1 --ORDER

and injunctive relief against the United States Forest Service (Forest Service), the National
Marine Fisheries Service (NMFS) and various federal officials acting in their official capacities
(collectively refeiTed to as "federal defendants"). Plaintiffs alleged federal defendants had
violated the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-43, and the National Forest
Management Act (NFMA), 16 U.S. C.§§ 1600-1614, in managing grazing on public lands
supporting threatened stee1head trout in Oregon's Malheur National Forest (iVlNF). Intervenor
defendants in case numbers 2:07-01871-HA and 3:03-00381-HA (plaintiffs in case number 2:0800151-HA) a group of ranchers permitted to graze cattle on allotments contained within the iVlNF
and cattle industry interest groups (collectively referred to as "permittees" or "intervenors"), also
sought declaratory and injunctive relief against federal defendants for violations of the ESA.
On July 30, 2012, this court entered judgment in 2:08-00151-HA, and on November 26,
2012, this court entered a stipu1atedjudgment in 2:07-01871-HA and 3:03-00381-HA. In the
final judgment, the comi entered judgment in favor of plaintiffs on the Sixth, Seventh, Eighth,
and Ninth Claims of their Third Amended Complaint in 2:07-cv-1871-HA, and on the First and
Second Claims of their Fifth Amended Complaint in 3:03-cv-381-HA; in favor of federal
defendants on the First, Second, Third, and Fifth Claims of the Third Amended Complaint in
2:07-cv-1871-HA, and pmiially in favor of plaintiffs and partially in favor of federal defendants
on the Fomih and Tenth Claims of the Third Amended Complaint in Case No. 2:07-cv1871-HA.
Plaintiffs now move for an awm·d of attomey fees and costs. 1 For the following reasons,

1

Intervenors have already been awarded attorney fees pursuant to a settlement agreement
with federal defendants and have taken no position in the instant motion. Additionally, plaintiffs
previously sought an interim award of attomey fees, however, given that final judgment appeared
to be imminent (and was eventually entered) the comi required the parties to resolve any attomey
2-- ORDER

plaintiffs' Motion for Attomey Fees [664] is granted in pati.
STANDARDS
In this matter, plaintiffs request a fee award pursuant to both the ESA's citizen suit
provision, 16 U.S.C. § 1540(g), and the Equal Access to Justice Act (EAJA), 28 U.S.C. §
2412(d)(l )(A). Pursuant to the ESA, the couti "may award costs oflitigation (including
reasonable attomey and expe1i witness fees) to any party, whenever the comi determines such an
award is appropriate." 16 U.S. C.§ 1540(g)(4). Pursuant to EAJA:
Unless expressly prohibited by statute, a comi shall award to a prevailing patiy
other than the United States fees and other expenses, in addition to any [costs],
incurred by that patiy in any civil action (other than cases sounding in t01i),
including proceedings for judicial review of agency action ... unless the comi
finds that the position of the United States was substantially justified or that
special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A).
Because the ESA's citizen suit provision provides an express authorization for attomey
fees in ESA cases, the comi looks first to the ESA and then to EAJA in evaluating plaintiffs' fee
request. See, Payment of Attny's Fees in Litigation Involving Successful Challenges to Fed.
Agency Action Arising Under the Admin. Procedure Act and the Citizen-Suit Provisions of the
[ESA], 2000 WL 34474453 (2000). As such, BAJA's fee provisions are subordinated to those of
the ESA and only if a fee is not authorized under the ESA does the court determine whether the
fee would be authorized pursuant to EAJA. Because the fee shifting provisions of the ESA and
EAJA constitute patiial waivers of sovereign immunity, the waivers must be construed in favor

fee disputes through a global motion for fees. The court has considered the briefing submitted by
the parties in relation to the umesolved Interim Motion for Attorney Fees [610] in resolving the
current motion.

3-- ORDER

of federal defendants and against an award of fees when such an award is not clearly authorized
by the statutes. Ardestani v. INS., 502 U.S. 129, 137 (1991).
A district couti should calculate awards of attomey fees using the "lodestar" method.
Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001 ). The "lodestar" is

calculated by multiplying the number of hours an attorney reasonably expended by a reasonable
hourly rate. !d. The pmiy requesting fees has the "burden to submit detailed records justifying
the hours expended. Winniger v. SI lvfgmt. LP, 301 F.3d 1115, 1126 (9th Cir. 2002). However,
"[t]he product of reasonable hours times a reasonable rate does not end the inquiry" and "[t]here
remain other considerations that may lead the cJ.istrict couti to adjust the fee upward or
downward, including the important factor of'results obtained.'" Hensley v. Eckerhart, 461 U.S.
424, 434 (1983). The "results obtained" factor is "particularly crucial where a plaintiff is deemed
'prevailing' even though he succeeded on only some of his claims for relief." !d. Where a
plaintiff succeeds on only some of his claims, the Supreme Court has adopted a two-pmi test to
determine whether a requested fee should be reduced. "First, did the plaintiff fail to prevail on
claims that were umelated to the claims on which he succeeded? Second, did the plaintiff
achieve a level of success that makes the hours reasonably expended a satisfact01y basis for
making a fee award?" Id.
Under Hensley's two-pati test, if the unsuccessful and successful claims are umelated, the
fee award may not include fees for time spent litigating the unsuccessful claims. Thorne v. City
ofEl Segundo, 802 F.2d 1131, 1141 (9th Cir. 1986). Related claims "involve a common core of

facts or [are] based on related legal theories." Id. (quotation and citations omitted). Umelated
claims are "distinctly different" and are based on disparate facts and legal theories. Id. Factors
that may be relevant in determining relatedness include whether the different claims were

4-- ORDER

designed to seek relief for the same course of conduct, whether the claims were presented
separately, whether testimony on claims overlapped, and whether evidence concerning one claim
was material and relevant to another. ld.
If the unsuccessful and successful claims are found to be related, the comi must apply the
second pati of the Hensley test and gauge the overall success of the plaintiff in relation to the
hours expended. I d. "If the plaintiff obtained 'excellent results,' full compensation may be
appropriate, but if only 'partial or limited success' was obtained, full compensation may be
excessive." ld. (quoting Hensley, 461 U.S. at 435-37).

DISCUSSION
The pmiies and the court are familiar with the lengthy background of these consolidated
cases and that background will only be discussed as necessitated by this court's analysis of the
parties' arguments and plaintiffs' request for fees. Before reaching plaintiffs' fee request, and
federal defendants' arguments in opposition, the comi notes that its analysis of the present motion
has been made more difficult than it ought to have been. The fees requested are great, in large
pati because this case involved a large administrative record, complex scientific materials, and a
lengthy duration of time. However, there is no doubt that the hours expended were increased
dramatically by repeated delays caused by federal defendants and govemment counsel. It was
readily apparent at a relatively early stage in this litigation that the Forest Service would need to
reinitiate formal consultation because the Incidental Take Statement had been abrogated
numerous times. Nonetheless, plaintiffs were required to litigate multiple temporary restraining
order I preliminary injunction motions as well as complex summmy judgment and remedies
motions in order to vindicate their position. That alone increased the time (and fees) necessmy to
litigate these cases. However, govemment counsel's repeated requests for extensions of time and
5-- ORDER

dilat01y conduct have undoubtedly increased the number of hours reasonably expended and
requested. Lastly, the government's briefing on the instant motion was inadequate.' Were
counsel's client a private party, the court would have granted the fee request in its entirety as
unopposed. However, because the fee award will be paid out of taxpayer dollars, the court felt
compelled to fully evaluate plaintiffs' fee request for reasonableness.
Plaintiffs' request an award of$1,371,893.96 for fees, costs, and other expenses. Federal
defendants contend that the fees requested are excessive for a number of reasons including the
difference between the relief sought and that ultimately achieved, the fact that plaintiffs did not
prevail on their claims against the National Marine Fisheries Service (NFMS), the hourly rates
sought, deficient billing documentation, and excessive hourly rates for both attorneys and
witnesses.

1.

Plaintiffs' Success

Federal defendants contend that this court should make an across the board reduction in
plaintiffs' fee request of twenty-five to fifty percent in light of the fact that plaintiffs did not
prevail on all their claims, did not prevail on any of their claims against NMFS, and did not win
all relief sought in the preliminmy injunctions. As a primary matter, federal defendants
underrepresent the success plaintiffs achieved. As is clear from the declarations submitted by
counsel, the motions for preliminmy injunctions, and this couti's rulings, plaintiffs achieved

2

Federal defendants missed the deadline for filing their Response in opposition to
plaintiffs' fee motion without requesting or receiving the comi's pennission. It was only after
plaintiffi contacted this court that this court extended the time in which federal defendants could
respond. This court finds that Response lacking. It is due to only plaintiffs' reasonableness and
this co uti's discretion that the court is now reviewing this matter. Federal defendants then
requested leave to file a surreply to cure some of the Response's many deficiencies. However,
that request was denied as it was untimely and unwananted.

6-- ORDER

considerable success both in comt and on the i'viNF. More imp01tantly, the use of across-theboard reductions on a percentage basis is generally frowned upon. Crm1jord v. Astrue, 586 FJd
1142, 1152 (9th Cir. 2009) ("the use of percentages does not discharge the district court from its
responsibility to set f01th a concise but clear explanation of its reasons for choosing a given
percentage reduction") (citation and quotations omitted). In light of the fact that federal
defendants fail to present anything resembling a compelling and clear rationale for across the
board percentage reductions, the comt will refrain from adopting such an approach. Rather, the
court will utilize the approach set f01th in Hensley.
The first question presented by Hensley's two-palt test is whether the successful and
unsuccessful claims are related. That is, did the successful and unsuccessful claims involve a
common core of facts and legal theories? Thorne, 802 F .2d at 1141. In this matter, it is clear
that the successful and unsuccessful claims are closely related. Each of the unsuccessful or
pmtially unsuccessful claims was based on alleged violations of the ESA. Four of the successful
and partially successful claims also involved the ESA and in some cases the same sections of the
ESA. These claims involved the same set offacts, similar legal theories, sought relieffor the
same course of conduct, were presented jointly, and the evidence that related to the unsuccessful
claims was the same evidence used to support the prosecution of the successful claims. In many
ways, the unsuccessful claims and successful claims were opposite sides of the same coin. For
instance, during summmy judgment, the federal defendants employed a litigation strategy that
included a circular argument with respect to ONDA's § 7 claims to avoid having anybody take
responsibility for unlawful action. The Forest Service claimed their grazing authorizations were
lawful because NMFS had a issued a Biological Opinion (BiOp) authorizing the grazing, and
NMFS claimed its BiOp was sound because it did not know the Forest Service had
7-- ORDER

misrepresented its ability to conduct conservation and monitoring measures. This court
concluded that although "NMFS was not required to analyze the veracity of the representations
made by the Forest Service, the Forest Service was not entitled to rely upon the resultingly
flawed BiOp ... [t]he buck must stop somewhere." ONDA v. Tidwell, 716 F. Supp. 2d 982,
1004 (D. Or. 2010). IfONDA had not sought to prosecute both the successful claims against the
Forest Service, and the unsuccessful claims against NMFS, it is possible it would have succeeded
on neither. The court rejects federal defendants entirely unsupported argument that plaintiffs
may not recover fees on claims against NMFS. As discussed above, litigation against both the
Forest Service and NMFS was appropriate in order to ensure victory against either. Additionally,
the Forest Service and NlvfFS are both executive agencies of the United States and were
represented by the same counsel throughout this litigation.
The second question presented by Hensley is whether plaintiffs achieved "excellent
results," an issue not directly challenged by federal defendants. The answer is clearly yes.
Plaintiffs prevailed, or partially prevailed, on eight out of twelve claims eventually litigated,
obtained substantial injunctive relief during the years prior to final judgment, and most
importantly, were able to reverse the degradation of habitat in the MNF and achieve substantial
protections for threatened steelhead. Plaintiffs achieved "excellent results." Because the court
concludes that the successful and unsuccessful claims were related, and because plaintiffs
achieved excellent results, the comi declines to make any reductions to plaintiffs' requested fees
due to plaintiffs' alleged failures. 3

3

In federal defendants' Response in Opposition to Interim Motion for Attomey Fees [631]
the government argues that the govemment's position was "substantially justified" for purpose of
EAJA with respect to ce1iain claims against NMFS and for all claims in case number 2:03-cv00213-HA. It is unclear whether federal defendants intended to pursue this argument in

8 --ORDER

2.

Line Item Complaints

Federal defendants make a large number ofline item complaints challenging the hours
spent litigating these cases. For the most part, these line item complaints are unsupported by fact
or reference to case law and, without the assistance provided by plaintiffs in their Reply briefing,
would have been nearly incomprehensible, as each page was bisected vertically into a nonsequential page.
Federal defendants attack the documentation suppmiing plaintiffs fee request and contend
that many of the hours spent are not compensable as pre-litigation work, block billing, clerical
tasks, and excessive. In many instances, the couti agrees that the time spent was excessive, or
otherwise not compensable. However, plaintiffs utilized appropriate billing judgment and did
not seek compensation (64 entries), or sought reduced compensation (41 entries) for a large
number of the billing entries that federal defendants needlessly challenged. As for the remainder
of the challenged entries, the comi concludes that the hours spent and documented are reasonable
and compensable. As discussed above, this litigation required a great amount of time (in large
part because of actions taken by federal defendants) and this court is not at all surprised by the
number of hours expended. Additionally, as federal defendants have failed to provide any
countervailing evidence (aside from unsuppmied statements that the hours spent are
umeasonable) the court has difficulty in finding any specific reason to reduce the requests.

attacking the global fee petition as well. As discussed above, the claims against NMFS must not
be considered in isolation. With respect to the claims in 2:03-cv-00213-HA and the appeal
stemming from this court's resolution of a jurisdictional issue in that case, the government takes
an overly nanow approach to the question of substantial justification. Looking at the entire case,
both the "underlying government action at issue and the position asserted by the government in
defending the validity of the action in court," the court finds govemment's position to have been
unjustified. Bay Area Peace Navy v. United States, 914 F.2d 1224, 1230 (9th Cir. 1990)
(quotations and citations omitted).

9-- ORDER

}vfOJ·eno v. City ofSacremento, 534 F.3d 1106, 1116 (9th Cir. 2008). Lastly, though it is not
entirely clear from federal defendants' brief, it appears that federal defendants challenge time
spent on appellate issues, on "lost" motions, and on pre-litigation work. Federal defendants do
not provide sufficient support for these arguments and the comt finds no good reason to reduce
the requested fees on any of these bases.

3.

Attorney Rates

Federal defendants challenge the attomey rates ONDA requests on essentially two fronts.
The first is that (even in the context of the substantive ESA claims) the rates are excessive, both
for the individual attorneys in light of the amount of time spent litigating this case, and
collectively because ONDA should not have employed multiple attomeys with expertise in
environmental law. This argument is rejected. The attorneys in this matter, David Becker, Peter
Lacy, Kristin Ruether, and Stephanie Parent more than demonstrated that they are entitled to the
rates requested. As discussed above, the court does not believe that they spent too much time on
this case. Federal defendant's unsupp01ted suggestion that ONDA should have employed fewer
expetts in environmental law is also rejected. This is not a case where multiple senior partners at
a high priced firm are driving up fees unnecessarily. This was an environmental case and
justified the use of attorneys learned in environmental law. All in all, the fees are not particularly
high given the size and dmation of this case. It is safe to say that if a large firm had handled this
case, the fees would have been an order of magnitude larger.
The second attack on the rates charged is that EAJA (with statutory caps on rates) is the
primary source of authority for an award of fees in this case. As discussed above, EAJA's fee
shifting provisions are subordinated to the ESA's, which do not include a cap on rates.
Therefore, if a particular billing entry is attributable to a substantive ESA claim, it is
10-- ORDER

compensable at a reasonable rate, even if that ently is also attributable to a claim litigated
pursuant to the Administrative Procedures Act (APA), which would typically be compensable at
EAJA rates. For instance, time spent reviewing the administrative record was necessaty for both
the substantive ESA claims and the APA claims, and may be compensated above EAJA's
statut01y cap. However, time spent working on a issue that is umelated to the ESA, such as legal
research or briefing on a National Forest Management Act claim, may only be compensated
pursuant to EAJA. Accordingly, the court is tasked with reducing ONDA's fee request on the
basis that some of the hours are billed at an excessive rate because those hours were spent
litigating issues related exclusively to AP A claims. Through no fault of plaintiffs' counsel, it is
generally impossible to distinguish between billing entries related to ESA claims, billing entries
related to both ESA claims and APA claims, and those entries related exclusively to AP A claims.
It is simply impossible for an attorney to bill on a claim by claim basis. As such, these

reductions are somewhat arbitrmy.
The easiest solution to this problem would be to simply reduce a percentage of the billing
entries to an EAJA rate based on the total number of APA claims versus substantive ESA claims.
Such a reduction would mean that only one third of the billing entries could be charged at above
EAJA rates. This is plainly the wrong solution as it ignores the fact that many of the billing
entries are related to both AP A and ESA claims and the fact that the ESA claims were, in this
court's opinion, much more time consuming than the AP A claims. In a case such as this, as the
record reflects, a huge amount of time was spent working with the administrative and factual
record and, more or less all such time was related to the ESA claims. Additionally, the
preliminary injunction litigation was focused on the substantive ESA claims and on the facts

11-- ORDER

related to those claims. As such, during the first few years of case number 2:07-cv-01871-HA, a
disproportionate amount of time was spent on the substantive ESA claims.
Taking this information into account, the court concludes that the following reductions
are in order. All billing entries in case number 2:03-cv-00213-HA, and the appeal theretl·om,
must be reduced to EAJA rates as all claims in that case are APA claims. In 2:07-cv-01871-HA,
ten percent of billing entries for which compensation is sought above the EAJA rate must be
reduced to the EAJA rate for 2007, 2008, and 2009. From 2010 on, twenty percent of such
entries should be reduced to the EAJA rate for the applicable year. The court believes that such
reductions adequately reflect the disproportionate amount of time spent litigating the ESA claims
in each year of this case, and reflects the fact that the issues raised during and after summary
judgment have, relative to the earlier years of these cases, required additional time on the AP A
claims. For instance, in 2010, Mr. Becker worked for 434.9 hours on this case. However he
seeks compensation for only 432.8 hours, and for 14.6 of those hours, he seeks below EAJA
rates. Therefore, he is seeking above EAJA rates for 418.2 hours in 2010. Of those 418.2 hours,
twenty percent (83.6 hours) must be reduced to EAJA rates, adjusted for cost of living if
appropriate, for the year 2010.

4.

Costs and Expert Witness Fees

Federal defendants contend that the expert witness fees for which plaintiffs seek
compensation are excessive and that certain costs are not recoverable pursuant to EAJA or the
ESA.
The court turns first to federal defendants arguments regarding expert witness fees.
Federal defendants contend that, consistent with EAJA, plaintiffs may not be awarded expert
witness fees "at a rate in excess of the highest rate of compensation for expert witnesses paid by
12-- ORDER

the United States." 28 U.S.C. § 2412(d)(2)(A). Because the highest expert fee paid by the
government in this matter was $89 per hour, federal defendants contend that all of plaintiffs'
expert fees should be reduced to that rate. This comi agrees, in part. For all expert fees charged
in case number 2:03-cv-00213-HA, the rates must be reduced in accordance with the fact that the
government's highest rate was $89 per hour. 4 However, for the expert fees incurred in case
number 2:07-cv-01871-HA, the comi concludes that the appropriate statute to determine expert
witness fees is the ESA, not EAJA, as the expetis' work was focused on issues related to the
ESA's substantive provisions and all their work is attributable to that statute. The ESA provides
for "reasonable ... expert witness fees," and the comi finds the requested fees in 2:07-cv-01871HA to be reasonable. 16 U.S. C.§ 1540(g)(4). Accordingly, those expeti witness fees will not be
reduced.
With respect to costs, federal defendants contend that the services of various consultants
are not compensable. However, the court concludes that both the ESA and EAJ A provide for the
compensation of such consultants, so long as such costs are reasonable. The ESA provides for
"costs of litigation" and EAJA allows an award of "fees and other expenses, in addition to any
costs awarded pursuant to subsection (a), incurred by that pmiy in any civil action ... unless the
court finds that the position of the United States was substantially justified or that special
circumstances make an award unjust." 16 U.S. C.§ 1540(g)(4); 28 U.S. C.§ 2412(d)(l)(A).
"Fees and other expenses" are defined to include "the reasonable cost of any study, analysis,

4

Plaintiffs suggest that this court read the term "highest rate of compensation for expert
witnesses paid by the United States" broadly. However, plaintiffs provide no evidence that the
government pays rates in excess of $89 per hour in this type of matter and have not provided
sufficient support for the proposition that this court should look beyond the confines of these
cases.
13-- ORDER

engineering report, test, or project which is found by the court to be necessary for the preparation
of the pmiy's case." 28 U.S. C.§ 2412(d)(2)(A). In this case, the consultants and law clerks
utilized by plaintiffs were reasonably employed and necessmy to plaintiffs' success. The use of
student law clerks in particular undoubtedly drove down the overall costs oflitigation. With the
exception of consultant Bill Marlett's costs, the comi concludes that all plaintiffs' costs (with the
reductions already conceded) are reasonable. However, the court finds the rates charged by Bill
Marlett to be excessive and unjustified by the declarations submitted, which contain little
information suppmting such a high rate. Accordingly, the court reduces his rate to $100 per
hour.

CONCLUSION
For the foregoing reasons, plaintiffs' Motion for Attorney Fees [664] is granted in part as
outlined above. Plaintiffs shall prepare a proposed order awarding the fees and costs as reduced
above. Prior to submitting the order, plaintiffs shall provide federal defendants with seven days
to object to any calculations conducted by plaintiffs.
IT IS SO ORDERED.
DATED this _£day of July, 2013.

~=~M
United States District Judge

14-- ORDER