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Cottonwood Environmental Law Center v. U.S. Sheep Experiment Station

United States District Court, D. Montana, Missoula Division

December 5, 2016



          Dana L. Christensen, Chief Judge.

         Before 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 part.


         On June 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 in Idaho.

         Plaintiffs 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.

         One day 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.)

         Subsequently, 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.)

         On 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. (Doc. 61-1.)[1]

         Thus, 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.


         Under 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).

         If, 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.

         Hours 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.


         I. Prevailing Party Under the Catalyst Theory

         The 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.

         In 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.)

         Nonetheless, 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:

         Impact to ...

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