Alliance for the Wild Rockies, Inc. v. U.S. Army Corps of Engineers et al
OPINION & ORDER: Denying Motion for Attorney Fees 41 . Signed on 7/25/2017 by Judge Marco A. Hernandez. (sss)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ALLIANCE FOR THE WILD ROCKIES, INC.,
OPINION & ORDER
U.S. ARMY CORPS OF ENGINEERS, U.S.
BUREAU OF RECLAMATION, and
BONNEVILLE POWER ADMINISTRATION,
Kristine M. Akland
Akland Law Firm PLLC
P.O. Box 7274
Missoula, MT 59807
Timothy M. Bechtold
Bechtold Law Firm
PO Box 7051
Missoula, MT 59807
Marianne G. Dugan
Attorney at Law
259 E. 5th Avenue, Suite 200-D
Eugene, OR 97401
Attorneys for Plaintiff
1 – OPINION & ORDER
Travis J. Annatoyn
U.S. Department of Justice
601 D. Street, NW
Washington, DC 20004
Attorney for Defendants U.S. Army
Corps of Engineers, U.S. Bureau of
Reclamation, and Bonneville Power
Matthew A. Love
Jenna R. Mandell-Rice
Van Ness Feldman LLP
719 Second Avenue, Suite 1150
Seattle, WA 98104
Attorneys for Intervenor-Defendants
Roza Irrigation District and Kennewick
HERNÁNDEZ, District Judge:
Plaintiff Alliance for the Wild Rockies (“Alliance”) seeks attorneys’ fees and costs
amounting to $79,873.70 from the United States Army Corps of Engineers, Bureau of
Reclamation, and Bonneville Power Administration (collectively “Federal Defendants”).
Alliance maintains that it is entitled to an award of attorneys’ fees under the Endangered Species
Act (“ESA”) because its lawsuit allegedly prompted Federal Defendants to conform to ESA
requirements by reinitiating ESA consultation regarding dams that potentially affected bull trout
critical habitat. Federal Defendants contend that Alliance lacks standing to pursue attorneys’ fees
and that Federal Defendants were already in the process of reinitiating ESA consultation when
Alliance filed suit. Because Alliance has not demonstrated a clear causal relationship between its
lawsuit and Federal Defendant’s compliance with the ESA, the Court denies Alliance’s Motion
for Attorney Fees.
2 – OPINION & ORDER
On October 18, 2010, the United States Fish and Wildlife Service (“Service”) designated
several bull trout habitats as “critical.” 75 Fed. Reg. 63898. Under the ESA, Federal Defendants
were required to initiate consultation with the Service by submitting biological assessments on
bull trout critical habitat in the vicinity of their dams. 16 U.S.C. § 1536(a).
On April 8, 2011, Federal Defendants notified the Service that they were “preparing a
Biological Assessment on the effects of ongoing operations and maintenance of the Federal
Columbia River Power System (FCRPS).” Peters Decl. Ex. 1, at 1, ECF 46. The FCRPS operates
fourteen of the twenty-two dams that required consultation. See Mot. to Dismiss Ex. 1, ECF 25.
In February of 2014, Federal Defendants submitted the biological assessment for the Howard A.
Hanson dam in Washington. Id. In April of 2015, they submitted biological assessments on two
more dams in the Yakima Project. Id. In fall and winter 2015, Federal Defendants conducted biweekly meetings on biological assessments and drafted a timeline for a review of the remaining
FCRPS dams that would take place in 2016. Peters Decl. Exs. 3–4. Federal Defendants
anticipated submitting draft biological assessments in May or June of 2016. Id. On March 16,
2016, Federal Defendants revised their schedule for the FCRPS assessments, anticipating that
they would submit final drafts of the biological assessments incorporating the Service’s feedback
by April of 2017 and that the Service would issue its biological opinion within 130 days of that
submission. Peters Decl. Ex. 9.
On May 6, 2016, Alliance sent Federal Defendants its notice of intent to sue. Mot.
Dismiss Ex. 3, at 3–4. The notice alleged that Federal Defendants had not reinitiated consultation
regarding bull trout critical habitat. Federal Defendants responded with two letters indicating that
3 – OPINION & ORDER
biological assessments on the remaining dams were scheduled for completion in fall 2016. Mot.
Dismiss Exs. 4, 6.
Alliance filed its complaint on July, 11, 2016, alleging that its members were harmed by
Federal Defendants’ failure to reinitiate consultation in areas that they used for recreation and
other purposes. Compl. 4–5 ECF 1.The Court Granted Federal Defendants’ motion to dismiss on
February 22, 2017, finding that they had submitted biological assessments for all of the
challenged dams at issue the previous December or earlier. Op. & Order 8, ECF 35; Reply Ex. 1,
On April 17, 2017, Alliance filed a motion for attorneys’ fees on the theory that its
lawsuit prompted Federal Defendants to reinitiate consultation on their dams. Mot. Att’y Fees 6,
ECF 41. Federal Defendants oppose the motion on the grounds that Alliance lacks standing
because Alliance’s members did not suffer an “injury in fact” and because the lawsuit did not
prompt them to conform to ESA requirements. Defs.’ Opp’n 2–6, ECF 45.
Alliance seeks attorneys’ fees for prompting Federal Defendants to reinitiate ESA
consultation on bull trout critical habitat. Federal Defendants argue that Alliance is ineligible for
attorneys’ fees because it does not have standing and because it was not responsible for Federal
Defendants’ conformity to ESA requirements. This Court finds that Alliance does have standing,
but Alliance is ineligible for attorneys’ fees.
A court has no authority to award attorneys’ fees if the plaintiff lacks standing. Skaff v.
Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 837 (9th Cir. 2007). To have Article III
standing, the plaintiff must show that, (1) it suffered an “injury in fact,” (2) arising out of the
4 – OPINION & ORDER
defendant’s conduct, and (3) that the court will likely provide a remedy. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992). Furthermore, the ESA provides a cause of action to any
person “to enjoin . . . any other governmental instrumentality or agency . . . alleged to be in
violation of any provision” of the ESA. 16 U.S.C. § 1540(g)(1)(A). Under the ESA,
“corporation” is included in the definition of “person.” 16 U.S.C. § 1532(13).
Alliance satisfied the traditional Article III standing requirements at the outset of this
case and was authorized by the ESA to bring its lawsuit. Alliance maintains that the failure to
consult affected its members’ use and enjoyment of recreation areas near dams where biological
assessments would serve to protect bull trout critical habitat. Compl. 4–5. When the complaint
was filed, Federal Defendants had yet to reinitiate consultation with respect to all of the
challenged dams and the Court had the authority to provide Alliance with the remedy it sought.
Further, the ESA expressly grants a cause of action to Alliance and jurisdiction to the district
courts to enforce the Act’s provisions and regulations. 16 U.S.C. § 1540(g)(1). In sum, Plaintiff
had standing to bring this lawsuit and the Court, in turn, has the authority to award attorneys’
Under the ESA’s citizen-suit provision, a court “may award costs of litigation . . . to any
party, whenever the court determines such award is appropriate.” 16 U.S.C. § 1540(g)(4).
Whether it is “appropriate” for a plaintiff to receive an award absent a final judgment on the
merits is determined in the Ninth Circuit by a two-part catalyst test.1 Ass’n of Cal. Water
Alliance contends that an alternative award theory is also appropriate using the “Gorsuch Test.” Mot. Att’y Fees 2.
The “Gorsuch Test” allows an award of attorneys’ fees where the party bringing suit assists in “the interpretation or
implementation of the . . . Act.” Alabama Power Co. v. Gorsuch, 672 F.2d 1, 3 (D.C. Cir. 1982). However, courts in
the Ninth Circuit use the “Catalyst Test” to determine if attorneys’ fees are appropriate where “a plaintiff does not
win a final judgment on the merits.” Ass’n of Cal. Water Agencies v. Evans, 386 F.3d 879, 885–86 (9th Cir. 2004)
(quoting Greater L.A. Council on Deafness v. Cmty. Television, 813 F.2d 217, 219 (9th Cir. 1987)).
5 – OPINION & ORDER
Agencies v. Evans, 386 F.3d 879, 885–86 (9th Cir. 2004). The first part of the test requires that
the plaintiff show a “clear, causal relationship between the litigation brought and the practical
outcome realized.” Greater L.A. Council on Deafness v. Cmty. Television, 813 F.2d 217, 220
(9th Cir. 1987) (quoting Am. Const. Party v. Munro, 650 F.2d 184, 188 (9th Cir. 1981)). Courts
consider the order of events in determining whether the plaintiff’s suit was a material factor in
the defendant’s conformity to law. Wilderness Soc. v. Babbitt, 5 F.3d 383, 386 (9th Cir. 1993).
The second part of the test requires “that the benefit achieved . . . [be] required by law.”2 Greater
L.A. Council, 813 F.2d at 220.
Alliance relies on Carroll in arguing that the chronology of events alone warrants this
Court awarding attorneys’ fees. Mot. Att’y Fees 6 (citing Sw. Ctr. for Biol. Diversity v. Carroll,
182 F. Supp. 2d 944, 949 (C.D. Cal. 2001)). In Carroll, the Southwest Center for Biological
Diversity sued the United States Army Corps of Engineers to initiate consultation on the Seven
Oaks Dam, which potentially affected three different endangered species. Id. Shortly after the
plaintiff filed its complaint, the defendant offered to reinitiate consultation for only one of the
endangered species. Id. at 951. Following settlement discussions, the defendant agreed to
reinitiate consultation for all three species, but without using the appropriate environmental
baselines that the plaintiff was advocating for. Id. After further discussions, the defendant
adopted the appropriate environmental baselines. Id. Based on that chronology of events, the
court found the plaintiff’s lawsuit to be “a substantial catalytic factor” in prompting the
defendant’s conformity to federal law. Id. at 951–52.
Carroll is distinguishable from this case. In Carroll, the defendant expressed that it
initially had no intention of submitting two of the required ESA biological assessments. Id. at
The parties agree that biological assessments are required by law under the ESA, which satisfies the second part of
the catalyst test and is not at issue. Defs.’ Opp’n, 4.
6 – OPINION & ORDER
951. Furthermore, the defendant in that case continued to grant portions of the remedy sought in
response to the plaintiff’s persistence during negotiations. Id. In this case, by contrast, Federal
Defendants indicated that they were in the process of reinitiating consultation and that they had
set tentative completion dates for that process. Mot. Dismiss Exs. 4, 6. Federal Defendants have
also demonstrated that they formulated plans to complete the biological assessments in late 2016
or 2017 before learning of Alliance’s threatened litigation. Peters Decl. Exs. 3, 9; Mot. Dismiss
Ex 3. Federal Defendants’ efforts toward reinitiating consultation are also supported by the fact
that they completed assessments on three dams prior to receipt of Alliance’s notice. See Mot.
Dismiss Ex. 1.
In sum, Federal Defendants have provided significant evidence of their planning to
submit biological assessments within a timeline that was largely consistent with their plans prior
to Alliance’s suit. See Peters Decl. Exs. 1–4; Mot. Dismiss Ex. 9. Alliance fails to offer anything
more than a timeline in attempting to demonstrate a “clear, causal relationship” between its suit
and Federal Defendants’ submission of biological assessments. Munro, 650 F.2d at 188.
Alliance’s timeline does not demonstrate this relationship because it ignores Federal Defendants’
conduct and their evidence of a timeline to complete consultation. See Mot. Att’y Fees 6.
Because Alliance has not satisfied the “clear, causal relationship” requirement, the Court denies
its motion for attorneys’ fees.
The Court denies Alliance’s Motion for Attorney Fees .
day of July, 2017.
MARCO A. HERNÁNDEZ
United States District Judge
7 – OPINION & ORDER
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