United States District Court, D. Montana, Missoula Division
COTTONWOOD ENVIRONMENTAL LAW CENTER; WESTERN WATERSHEDS PROJECT; WILDEARTH GUARDIANS; GALLATIN WILDLIFE ASSOCIATION, Plaintiffs,
U.S. SHEEP EXPERIMENTAL STATION; AGRICULTURAL RESEARCH SERVICE; U.S. FISH AND WILDLIFE SERVICE; SALLY JEWELL, in her official capacity as Secretary of the Interior, Defendants.
L. Christensen, Chief Judge.
the Court is Plaintiffs' motion for attorneys' fees
and costs filed pursuant to the Endangered Species Act
("ESA"), 16 U.S.C. § 1540(g)(4). For the
reasons discussed below, Plaintiffs' motion is granted in
23, 2014, Plaintiffs brought a lawsuit under the ESA and
National Environmental Policy Act ("NEPA")
challenging the environmental analyses for the United
States' Sheep Experiment Station ("USSES") near
Dubois, Idaho. The USSES is managed by the Agricultural
Research Service ("ARS"), a research agency of the
United States Department of Agriculture ("USDA")
that oversees over 800 individual projects aimed at improving
national agriculture. The USSES near Dubois, Idaho, allows
sheep to graze on rangelands, and rotates sheep through
individual pastures as climate, staffing, and rangeland
health permit. At issue in this case is the high-elevation
"Summer West Range, " which relies on sheep
provided by the University of Idaho during its limited summer
grazing season (usually May or June through August or
September). This range overlaps with grizzly bear habitat, a
species listed as "threatened" under the ESA. The
Summer West Range is located in the heart of an important
grizzly bear corridor in the Centennial Mountains that
connects Yellowstone National Park to large wilderness areas
claim under the ESA that the U.S. Fish and Wildlife
Service's ("Service") 2014 Biological Opinion
for the USSES is arbitrary and capricious because it states
that "[t]here have been no known grizzly bear/human
encounters on the Sheep Station, other than observation of
grizzly sign." (Docs. 20 at 2; 3-7 at 28.) Plaintiffs
allege that the USSES previously reported that grizzly bears
chased sheep herders on the Summer West Range, a fact which
was not included in the Biological Opinion. Plaintiffs
further allege that Defendants have violated NEPA by failing
to prepare an Environmental Assessment or Environmental
Impact Statement for the 2014 Incidental Take Statement,
which allows the USSES to "take" threatened grizzly
bears, and by issuing a decision notice in 2010 that allowed
continued sheep grazing without first preparing a
supplemental environmental assessment.
after filing their Complaint, on June 24, 2014, Plaintiffs
moved for a preliminary injunction to enjoin domestic sheep
grazing in the Centennial Mountains. Approximately two weeks
later, on July 9, 2014, the Court denied Plaintiffs'
motion for a preliminary injunction because Defendants
provided notice, through a sworn declaration of Laurence D.
Chandler, Acting Associate Administrator for Research
Operations and Management of the USDA's ARS, that they
had no intention of grazing sheep on the Summer West Range
prior to June 1, 2015. (Doc. 11.)
on September 10, 2014, Plaintiffs filed an amended complaint
with the Court, continuing to seek declaratory and injunctive
relief and adding a fifth cause of action based on the
Defendants' alleged reliance on a faulty Biological
Opinion. (Doc. 20.) Defendants filed their answer on
September 24, 2014, and lodged the Administrative Record on
January 9, 2015. No further substantive action occurred in
this case until the parties filed a joint motion to stay the
case because the Service prepared and transmitted a new
Biological Opinion on February 25, 2015 ("2015
Biological Opinion"), which replaced the Opinion at
issue in Plaintiffs' Complaint and rendered
Plaintiffs' ESA claims moot. (Doc. 42.) The Court issued
the stay, which was continued until the Plaintiffs'
motion for voluntary dismissal was granted on March 16, 2016.
(Docs. 55; 56.)
March 25, 2016, Plaintiffs filed their motion for
attorneys' fees and costs, and simultaneously requested
that the Court extend the deadline to file the supporting
brief. The Court granted this request, requiring Plaintiffs
to submit a memorandum in support of their motion by June 1,
2016. On June 1, 2016, Plaintiffs submitted a memorandum in
support of their initial fee request, seeking $63, 146.37
under the catalyst theory of the ESA. (Docs. 61; 62.)
Plaintiffs assert that they "should be permitted to
recover their reasonable attorney's fees because this
litigation was cited by the Secretary of the Department of
Agriculture as a reason why he decided to end domestic sheep
grazing by the USSES in the Centennial Mountains." (Doc.
61.) Plaintiffs attached Exhibit 1, a letter dated November
10, 2014, signed by Secretary of the United States Department
of Agriculture, Thomas J. Vilsack, accompanied by a detailed
report made by the USDA for the House and Senate Agriculture
Appropriations Subcommittees informing them of ongoing sheep
research within the ARS. In the report, the USDA expressly
mentions "lawsuits" and "injunctions"
that have impacted the Department's research programs.
although the claims asserted in the complaint and amended
complaint were never decided on the merits, Plaintiffs insist
that they are entitled to attorneys' fees and costs
because their complaint and amended complaint were the
catalyst for Defendants' decision to update the 2014
Biological Opinion to include reference to grizzly bear
encounters at the USSES in the 2015 Biological Opinion.
Defendants counter that Plaintiffs have failed to show a
causal connection between their lawsuit and the revised 2015
Biological Opinion, or any other action by the USDA since the
commencement of the lawsuit.
the ESA, a district court may award costs of litigation,
including reasonable attorney fees, to any party, whenever
the court determines such an award is appropriate. 16 U.S.C.
§ 1540(g)(4). An award is appropriate when the
plaintiffs have achieved some degree of success on the
merits. Ruckelshans v. Sierra Club, 463 U.S. 680,
684 (1983). But even in cases like this one, where the court
has not ruled on the merits of the complaint, ESA plaintiffs
may recover fees and costs under the "catalyst
theory." Assn. of Cal. Water Agencies v. Evans,
386 F.3d 879, 885 (9th Cir. 2004). The catalyst theory allows
attorneys' fees to be awarded to a "plaintiff who,
by simply filing a nonfrivolous but nonetheless potentially
meritless lawsuit (it will never be determined), has reached
the 'sought-after destination' without obtaining any
judicial relief." Id. at 884. First, the court
must consider whether the plaintiffs obtained at least
"some of the benefits they sought in the suit."
Id. at 886. Second, the court must assess whether
there was "a clear, causal relationship between the
litigation brought and the practical outcome realized."
Id. (internal citation and quotation marks omitted).
Finally, "the court must determine that the benefit
achieved was required by law and was not a gratuitous act of
the defendant." Id. at 886, n. 3 (internal
citation and quotation marks omitted).
under the catalyst theory of recovery, the court finds that
the plaintiff did prevail and an award is appropriate, the
court must then determine what constitutes a reasonable
amount of attorneys' fees. The lodestar method provides
"the most useful starting point for determining the
amount of a reasonable fee-----" Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983). That calculation
requires a court to multiply the number of hours reasonably
expended on the litigation by a reasonable hourly rate.
Id. "The prevailing market rate in the
community is indicative of a reasonable hourly rate."
Jordan v. Multnomah Cty., 815 F.2d 1258, 1262 (9th
Cir. 1987); see also Int'l Woodworkers of Am.,
AFL-CIO, Local 3-98 v. Donovan, 792 F.2d 762, 765-766
(9th Cir. 1985) ("The lodestar figure of reasonable
hours times a reasonable market rate is presumptively a
reasonable attorney's fee under a statute."). In
determining reasonable hours, "[t]he fee applicant bears
the burden of documenting the appropriate hours expended in
the litigation and must submit evidence in support of those
hours worked." Gates v. Deukmejian, 987 F.2d
1392, 1397 (9th Cir. 1992) (citing Hensley, 461 U.S.
at 437). "The party opposing the fee application has a
burden of rebuttal that requires submission of evidence to
the district court challenging the accuracy and
reasonableness of the hours charged or the facts asserted by
the prevailing party in its submitted affidavits."
Id. at 1397-1398.
may be reduced by the court if the hours expended are
determined to be excessive or otherwise unnecessary.
Hensley, 461 U.S. at 433-434. In finalizing a fee
award, the district court should "provide a concise but
clear explanation of its reasons for the fee award" and
"should make clear that it has considered the
relationship between the amount of the fee awarded and the
results obtained." Id. at 437. A district court
also has discretion to award costs-such as telephone calls,
postage, air courier and travel expenses- that are ordinarily
billed to a client and are routine under fee statutes.
Int'l Woodworkers, 792 F.2d at 767.
Prevailing Party Under the Catalyst Theory
Court finds that the Plaintiffs' complaint and amended
complaint did play a causative role, in varying degrees, in
three actions by Defendants: (1) the USDA's proposed
transition of the ARS and approval to close the USSES near
Dubois, Idaho, as documented in the report attached to
Secretary Vilsack's November 10, 2014, letter; (2) the
agreement by the ARS not to graze on the USSES Summer West
Range prior to June 1, 2015; and (3) the Defendants'
decision to issue a new 2015 Biological Opinion identifying
grizzly bear encounters at the USSES.
their motion for attorneys' fees, Plaintiffs argue that
there was a decision on the merits in their favor. Plaintiffs
claim that this Court's ruling on May 19, 2015, is
essentially a ruling on the merits because when it granted
Defendants' motion to continue the stay in this case, the
order also included the following language: "IT IS
FURTHER ORDERED that Defendants shall file a notice in this
case at least sixty (60) days prior to the commencement of
any grazing activities in the Summer West Range. This
includes any form of construction, habitation, or other
on-site preparation activities." (Doc. 50 at 2-3.)
Plaintiffs contend that this 60-day notice requirement
equates to success on the merits because Defendants were
ordered to discontinue future sheep grazing unless notice was
provided to the Court and the Plaintiffs. Defendants argue
that this was purely a procedural victory and that, under a
prevailing party standard, the United States Supreme Court
has found that such a procedural victory does not justify an
award of fees. Ruckelshaus, 463 U.S. at 688 n. 9.
The Court agrees with Defendants that this procedural ruling
falls short of a successful decision on the merits because
the Court was merely providing "Plaintiffs with a safety
mechanism" should the Defendants go back on their word
that they would cease sheep grazing at the USSES near Dubois,
Idaho. (Doc. 50 at 2.)
even though there is no specific judgment on the merits in
this case that Plaintiffs can point to establishing success
on the merits, the Court finds that the Plaintiffs'
lawsuit did indeed promote and expedite Defendants'
decision to end sheep grazing at the USSES, which allows them
to recover fees under the catalyst theory. Specifically, in
the USDA's congressional report dated November 10, 2014,
which suggested permanent closure of the USSES, multiple
lawsuits filed against the USSES are described as having
created a general atmosphere of uncertainty as to the
viability of the USSES. At page 2 of the report the USD A
explained the following to Congress: