Native Fish Society v. National Marine Fisheries Service et al

Filing 331

Opinion and Order signed by Judge Ancer L. Haggerty on 12/19/2014 granting in part Plaintiff's Motion for attorney fees 305 . Plaintiff is awarded attorney fees and costs in the amount of $684,851.55. (sp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

NATIVE FISH SOCIETY,
MCKENZIE FL YFISHERS,

Case No.: 3:12-cv-00431-HA

Plaintiffs,
OPINION AND ORDER
v.
NATI ONAL MARINE FISHERIES
SERVICE; PENNY PRITZKER,
Secretary of Commerce; WILLIAM STELLE,
Regional Administrator, NMFS; OREGON
DEPARTMENT OF FISH & WILDLIFE;
ROY ELICKER, Director, ODFW;
BRUCE McINTOSH, Acting Fish
Division Administrator, ODFW; CHRIS
WHEATON, Northwest Region Manager,
ODFW,
Defendants.

Pursuant to Fed. R. Civ. P 54(d), LR 54-3, the Endangered Species Act ("ESA"), 16
U.S.C. § 1540(g)(4), and the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 et seq.,
Native Fish Society and McKenzie Flyfishers respectfully move the court for an award of
attorney fees, costs, and other expenses in the amount of $813,965.07 against the federal
defendants ("NMFS").

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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 court "may award costs oflitigation (including
reasonable attorney 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 court shall award to a prevailing party
other than the United States fees and other expenses, in addition to any [costs],
incurred by that party in any civil action (other than cases sounding in t01i),
including proceedings for judicial review of agency action ... unless the court
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)(l)(A).
Because the ESA's citizen suit provision provides an express authorization for attorney
fees in ESA cases, the court looks first to the ESA and then to EAJA in evaluating plaintiffs' fee
request. Oregon Natural Desert Ass'n v. Vi/sack, Nos. 2:07-cv-01871-HA, 2:08-cv-00151-HA,
3:03-cv-00381-HA, 2013 WL 334828, at *2 (D.Or. July 2, 2013) (citing 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, EAJA's fee provisions are subordinated to those of the ESA and only if a fee is not
authorized under the ESA does the court dete1mine whether the fee would be authorized pursuant
to EAJA. Because the fee shifting provisions of the ESA and EAJA constitute partial waivers of
sovereign inmrnnity, the waivers must be construed in favor of federal defendants and against an
award of fees when such an award is not clearly authorized by the statutes. Ardestani v. INS.,

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502 U.S. 129, 137 (1991).
A district court should calculate awards of attorney 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. Id. The party requesting fees has the "burden to submit detailed records justifying
the hours expended. Winniger v. Sil'vfgmt. LP, 301F.3d1115, 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 district court 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" Id. Where a
plaintiff succeeds on only some of his claims, the Supreme Court has adopted a two-pat1 test to
detennine 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 satisfactory basis for
making a fee award?" Id.
Under Hensley's two-part test, ifthe 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 detetmining relatedness include whether the different claims were
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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. Id.
If the unsuccessful and successful claims are found to be related, the court must apply the
second part of the Hensley test and gauge the overall success of the plaintiff in relation to the
hours expended. Id. "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." Id. (quoting Hensley, 461 U.S. at 435-37).

DISCUSSION
In this case, 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, the hourly rates sought, and duplicative billing.
First, defendants argue that plaintiffs should not be compensated for time spent on claims
on which they did not prevail. Under the first factor in Hensley's two-part test, this court
concludes that plaintiffs' AP A claims and ESA claims were related. While the claims may
require different scopes of review, they involved the same set of facts, similar legal theories, and
sought relief for the same course of conduct. Each of plaintiff's claims sought to co!Tect a
decade-long pattern of noncompliance with the ESA, and overall, they were successful in
achieving compliance.
Under Hensley's second factor, the court finds that plaintiffs succeeded in bringing the
agencies into compliance with ESA and NEPA and dramatically reduced that pressure of
hatchery operations on wild fish. This success constitutes "excellent results." Because the court

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concludes that the successful and unsuccessful claims were related, and because plaintiffs
achieved excellent results, the court declines to make any reductions to plaintiffs' requested fees
due to plaintiffs' alleged failures.
Defendants even concede that plaintiffs are entitled fees until the. 2012 Hatchery Genetic
Management Plan (HGMP) was approved, but they argue that fees are inappropriate after that
point because it was the Oregon Department of Fish and Wildlife's independent decision to
submit new HGMP proposals in 2013. Accordingly, defendants argue that NMFS was required
by its own regulations to reinitiate consultation and withhold Mitchell Act funding. This court
disagrees. On December 31, 2012, federal defendants possessed data demonstrating stray rates
of25-30% for spring Chinook, but they waited until September 2013, in the midst of responding
to plaintiffs' Motion for Partial Summary Judgment, to reinitiate consultation. In light of this
chronology, the court finds that this lawsuit prompted federal defendants to alter their course
even after September 2012. Therefore, plaintiffs are entitled to an award under the ESA.
Defendants also argue that, under EAJA, their position was "substantially justified";
therefore plaintiffs are not entitled to EAJA fees. This court disagrees. Defendants failed to
impose limits and conditions on the Sandy Hatche1y for years prior to this litigation.
Additionally, defendant's litigation position was not substantially justified, as the comi concluded
that it erred in its evaluations of the hatchery program and imposed arbitrmy limitations.
Defendants do set fmih several line item complaints to which the comi agrees. First,
plaintiffs acknowledge that they did not prevail against the state. However, plaintiffs have settled
their claim for fees with the state. The court does not believe that plaintiffs should recover an
amount from the federal defendants for the prosecution of the state claim. Any such time and

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costs should be deducted from this cou1i's award. Federal defendants propose a reduction of
$62,262.02 and the court agrees. Defs.' Response [322] at 11.
Second, federal defendants object to the time billed by Ms. Lovell asse1iing that she was
not acting as co-counsel but as a consulting attorney. Defs.' Response [322] at 13. To-the
contrary, plaintiffs assert that she was acting as co-counsel. Becker Third Deel. [329] at 1.
However, the policy of this cou1i is to reduce the hours where more than one lawyer perfo1med
the same task. See Taylor v. Albina County Bank, N80o. CV-00-1089-ST, 2002 WL 31973738,
at *4 (D.Or. Oct. 2, 2002). The federal defendants point out that Ms. Lovell and Mr. Mellgren
spent 50 % and 40% of their recorded time in conferences among counsel. Joint Deel. of
Markowitz and Fite [324] at 7. Federal defendants argue that the fee request should be reduced
by $80,000.00 for the excessive conference time. Joint Deel. of Markowitz and Fite [324] at 8.
This court agrees and notes that plaintiffs sometimes had tlu·ee attorneys bill for court
appearances.
Third, federal defendants object to time spent by counsel Becker doing and billing for
nonprofessional tasks. Plaintiffs concede that a reduction of $5,348.00 is wananted for purely
clerical tasks. Plaintiffs also concede that a reduction of$2,756.00 is wananted to reduce certain
paralegal tasks to a law clerk rate. The court adopts these reductions.
The second part of the lodestar calculation requires the court to determine a reasonable
hourly rate for the attorneys involved in the litigation. In the Ninth Circuit, the key factor that a
court must rely upon in dete1mining a "reasonable rate" is the "prevailing market rate."
}vfaldonado v. Lehman, 811F.2d1341, 1343 (9'h Cir.), cert. denied, 484 U.S. 990 (1987).

Plaintiffs' requested hourly rates and costs are set out in Exhibit F to David Becker's

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Third Declaration. Federal defendants assert that plaintiffs' request is both umeasonable and
excessive. Defs.' Response [322] at 1. However, in the joint declaration of David B. Markowitz
and Lawson E. Fite, filed in support of federal defendant's opposition, they conclude "that the
rates requested likely are reasonable, provided that the billing records of these attorneys reflect
efficiencies that should be gained when a case is handled by an attorney claiming specialized
skill or expertise." [324] at 7. Therefore, the court will not reduce plaintiffs' requested hourly
rate.

CONCLUSION
Based on this analysis and the reductions identified above, plaintiff is awarded attorney
fees and costs in the amount of $684,851.55.
IT rs

so ORDERED.

DATED this

Ji day of December, 2014.
Ancer 1. Hagge ·ty l
United States District Judge

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