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Native Ecosystems Council v. Weldon

United States District Court, D. Montana, Missoula Division

February 4, 2013

NATIVE ECOSYSTEMS COUNCIL, and Alliance for the Wild Rockies, Plaintiffs,
Leslie WELDON, Regional Forester of Region One of the U.S. Forest Service, and United States Forest Service, an agency of the U.S. Department of Agriculture, Defendants.

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[Copyrighted Material Omitted]

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Rebecca Kay Smith, Public Interest Defense Center, Timothy M. Bechtold, Bechtold

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Law Firm, Missoula, MT, for Plaintiffs.

Andrew A. Smith, U.S. Department of Justice, Albuquerque, NM, Mark Steger Smith, Office of the U.S. Attorney, Billings, MT, for Defendants.


DONALD W. MOLLOY, District Judge.

The plaintiffs move for attorney's fees for their successful litigation against the Forest Service. Their motion is granted in part.


This case arises out of a dispute involving the Beaver Creek Project— a proposed timber sale and prescribed burning on the Custer National Forest. The plaintiffs challenged several aspects of the Project. They claimed that the Project violated the National Forest Management Act (" NFMA" ) and the National Environmental Policy Act (" NEPA" ) because it did not adequately protect elk habitat, it failed to protect old growth, and was deficient for goshawk habitat. They also claimed that the Forest Service violated NEPA by failing to timely disclose the potential need for stormwater discharge permits under the Clean Water Act and by failing to consult with state agencies regarding those permits.

On March 26, 2012, the Court granted in part and denied in part the plaintiffs' and defendants' motions for summary judgment. The Court partially granted summary judgment in favor of the plaintiffs because the Forest Service failed to: (1) explain why it analyzed road density only at the Project level and ranger-district level, (2) explain why it applied the road-density standard to only Forest lands, (3) analyze road density during Project implementation, (4) identify the stormwater discharge permits that it might need to obtain for the Project, and (5) solicit comments on those permits from state agencies. The Court granted summary judgment in favor of the Service on all other claims.

The Court enjoined the Forest Service from implementing the Project and remanded the case to the Forest Service so that it could prepare a supplemental EIS.

Both parties appealed, but they then voluntarily dismissed those appeals after a wildfire swept through the Project Area and the Forest Service formally withdrew the Project from implementation.

The Forest Service then moved this Court to vacate its judgment. The Court granted the motion but determined that the vacatur would not impact the question of whether the plaintiffs are entitled to attorney's fees.


Attorney's fees are awarded to the plaintiffs, but not the amount that the plaintiffs request. Excluded are any fees or costs associated with (1) the Appeals Reform Act claim, (2) the ESA claims, and (3) the motion to strike. As the Forest Service notes, the plaintiffs have not specifically identified how many hours were spent on the Appeals Reform Act and ESA claims. The plaintiffs are ordered to submit a supplemental affidavit deducting those hours and then proportionally adjusting the fees on fee award. The Forest Service may then file a supplemental response.

Moreover, in its supplemental affidavit, the plaintiffs need calculate their revised fee award using the following dates and rates:

2010 2011 2012 2012

District District District Ninth Administrative Fee

Court Court Court Circuit Tasks petition

Bechtold N/A $270 $280 $183.73 N/A $183.73

Smith $200 $210 $220 $183.73 $75 $183.73

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A plaintiff is entitled to its attorney's fees under the Equal Access to Justice Act only if the plaintiff is a " prevailing party." 28 U.S.C. ยง 2412(d)(1)(A). Even if a plaintiff is a prevailing party, though, fees are not awarded if the government shows that its position was " substantially justified" or that " special circumstances make an award unjust." Id.; United States v. Milner, 583 F.3d 1174, 1196 (9th Cir.2009).


The plaintiffs are entitled to attorney's fees because: (1) they are prevailing parties and (2) the Forest Service's positions were not substantially justified, and there are no special circumstances that would make an award unjust. The plaintiffs' proposed award, though, must be modified to reflect the accurate hours and rates as set forth above.

I. Prevailing parties

When a party prevails at the district court, the party is still a " prevailing party" for purposes of an attorney's fees award even if the case becomes moot on appeal. UFO Chuting of Hawaii, Inc. v. Smith, 508 F.3d 1189, 1196-97 (9th Cir.2007); Williams v. Alioto, 625 F.2d 845, 847-48 (9th Cir.1980); Diffenderfer v. Gomez-Colon, 587 F.3d 445, 454 (1st Cir.2009); Kirk v. N.Y. St. Dept. of Educ., 644 F.3d 134, 139 n. 4 (2d Cir.2011); Thomas v. Bryant, 614 F.3d 1288, 1295 (11th Cir.2010). So, here, when this case became moot on appeal and the Court vacated the judgment, there is no bar to an award of attorney's fees. But, as a threshold matter, the plaintiffs must show that they prevailed here for an award to be appropriate. See UFO, 508 F.3d at 1196-97.

A party is a " prevailing party" when: " (1) it 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 plaintiff." Id. at 1197 (citations and internal quotation marks omitted). " A party has ‘ prevailed on the merits of at least some of (their) claims,’ [ Hanrahan v. Hampton, 446 U.S. 754, 758, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980) (per curiam) ] when it has obtained a preliminary injunction that results in a direct and substantial benefit." Id. (citations omitted).

The question, then, is— For the time period before the case was moot, did the party obtain the desired relief and did that relief directly benefit the plaintiff through a material alteration of the legal relationship between the parties? See id. In this case, the answer to that question is " Yes."

The Ninth Circuit explained for there to be a direct benefit from an injunction, the behavior enjoined must have been occurring at the time the injunction was issued or there must have been an imminent threat of its occurrence. Martinez v. Wilson, 32 F.3d 1415, 1423 (9th Cir.1994).

In Williams, for example, the plaintiffs obtained a preliminary injunction against certain types of " pat down" searches. 625 F.2d at 847. The case was mooted on appeal, though, because law enforcement stopped conducting those types of searches. Id. But the Ninth Circuit still held that the plaintiffs were prevailing parties because they enjoyed the benefit of the preliminary injunction before it became

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moot. The court reached a different result in UFO, though, because, there, the injunction was stayed on appeal. 508 F.3d at 1198. So the plaintiff did not reap any benefit from the injunction. Id. [1]

Here, the injunction benefitted the plaintiffs through a material alteration of the legal relationship between the plaintiffs and the Forest Service. In the parties' Case Management Report, the Forest Service represented that " the anticipated beginning implementation date for ground-disturbing activities for the Forest Service project challenged in this litigation [was] no sooner than April 1, 2012." (Doc. 8 at 4.) The permanent injunction was issued on March 26, 2012— a week before the Project was set to begin. The injunction directly benefitted the plaintiffs because it stopped the Project from moving forward, which, by the Forest Service's own account, was " an imminent threat" when the injunction was issued. See Martinez, 32 F.3d at 1423. There is little doubt that the injunction modified the Forest Service's behavior. Before the injunction was issued, the Forest Service was free to proceed with the Project and, indeed, was planning to do so on April 1, 2012. The injunction changed that— the Forest Service was no longer permitted to move forward with the Project.

The Forest Service insists the plaintiffs did not directly benefit from the injunction because the Service would not have been able to implement much of the Project before the fire swept through the Project Area. Even if that is the case, it is speculation at this point. What we know for certain is the injunction stopped the Project, which is the relief that the ...

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