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Native Ecosystems Council v. Krueger

United States District Court, D. Montana, Missoula Division

April 4, 2019

FAYE KRUEGER, Regional Forester of Region One of the United States Forest Service, UNITED STATES FOREST SERVICE, an agency of the United States Department of Agriculture, and UNITED STATES FISH AND WILDLIFE SERVICE, an agency of the United States Department of Interior. Defendants.



         Plaintiffs seek $29, 707.50 in attorneys' fees under the Endangered Species Act ("ESA"). (Docs. 77; 78 at 13.) Defendants oppose Plaintiffs' requested amount, arguing that the Court should (1) reduce the total hours to reflect recovery only on Plaintiffs' ESA claim; (2) reduce the hourly rates to accord with similar practices within the District; and (3) reduce the number of hours on account that they are vague, improperly billed, and excessive. (Doc. 87 at 5.) The Court agrees only in part. Because it concludes that Plaintiffs' requested annual hourly rate increase of $25 per year is not "reasonable" per se, the Court will reduce the requested hourly rate and award Plaintiffs $26, 904.61.


          In 2012, Plaintiffs sought judicial review of the U.S. Forest Service's authorization of the Fleecer Mountains Project on the Beaverhead-Deerlodge National Forest and revision to the Beaverhead-Deerlodge National Forest Plan. Plaintiffs complained that the Project and Plan violated the ESA, the National Environmental Protection Act ("NEPA"), and the National Forest Management Act ("NFMA"). On May 24, 2013, the Court partially granted Plaintiffs' motion for summary judgment, enjoining the Project until the federal agencies: (1) supplemented the Project Environmental Assessment; (2) supplemented the Forest Service's Environmental Impact Statement for the Forest Plan; (3) prepared a new biological assessment addressing whether the Project "may affect" grizzly bears; and (4) considered whether lynx "may be present" in the forest and take all necessary action related to that finding.

         On February 27, 2018, believing it had complied with the Court's remand order, Defendants filed a motion under Federal Rule of Civil Procedure 60(b)(5) to dissolve the injunction. Plaintiffs opposed the motion, arguing that dissolution was improper because Defendants had not fulfilled the Court's remand instructions in various ways. Particularly, Plaintiffs argued that the Fish and Wildlife Service's disclosure that lynx "may be present" across the forest triggered a need for the Forest Service to conduct a biological assessment to determine what affects, if any, the Forest Plan may have on lynx. (Doc. 73 at 3.)

         The Court held oral argument on this matter on August 13, 2018. Counsel for both parties demonstrated exemplary oral advocacy which aided the Court in making a correct decision on a complex issue of law and fact. The Court issued its written decision on October 15, 2018. (Doc. 73.) Evaluating the parties arguments under Rule 60, the Court denied Defendants' motion to dissolve the injunction because it agreed with Plaintiffs that the Forest Service had not completed everything required to comply with the remand order. On October 29, 2018, Plaintiffs filed a motion for attorneys' fees requesting $29, 707.50 under the ESA's fee-shifting provision.


         "Ideally [ ] .. . litigants will settle the amount of a fee." Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). Where settlement is impossible, the fee applicant bears the burden to prove the requested amount is reasonable. Id. The district court has discretion to determine the amount awarded but must "clearly and concisely explain the grounds for its decision." Jordan v. Multnomah Cty., 815 F.2d 1258, 1261 (9th Cir. 1987).

         Having failed to reach settlement, Plaintiffs move the Court to award reasonable attorneys' fees under 16 U.S.C. § 1540(g)(4). In total, Plaintiffs ask for $29, 707.50 which represents a fee of $355 per hour for 67.2 hours of work performed by attorney Rebecca K. Smith and $415 per hour for 14.1 hours of work performed by attorney Timothy Bechtold. Plaintiffs assert that these fees are appropriate because it was the prevailing party, its rates are comparable to "similar work performed by attorneys of comparable skill, experience and reputations" and that its hours "were reasonable and necessary and not excessive." (Doc. 78 at 2-9.)

         I. Fee Award

         Under the ESA, a court "may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate." 16 U.S.C. § 1540(g)(4). An award is "appropriate" when the plaintiff has achieved some degree of success on the merits. Ruckelshaus v. Sierra Club, 463 U.S. 680, 688 (1983). The use of the word "appropriate" in the ESA's fee-shifting statute, as opposed to the term "prevailing party" (which is used in numerous other federal statutes that authorize fee-shifting provisions, ) "was meant to expand the class of parties eligible for fee awards from prevailing parties to partially prevailing parties-parties achieving some success, even if not major success." Ass 'n of California Water Agencies v. Evans, 386 F.3d 879, 884 (9th Cir. 2004) (quoting Ruckelshaus, 463 U.S. at 688). When a party is a "prevailing party"-that is, when it "(1) 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 plaintiffs[, ]" UFO Chuting of Hawaii, Inc. v. Smith, 508 F.3d 1189, 1197 (9th Cir. 2007)-the party has necessarily achieved "some success on the merits" making a fee award under the ESA appropriate.

         Plaintiffs argue that fees are appropriate because they were the prevailing party, having "secured an enforceable judgment[ ] on the merits." (Doc. 78 at 3 (quoting Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d 1152, 1158 (9th Cir. 2018)).) Defendants do not dispute that fees should be awarded for Plaintiffs' ESA claim, but argue that fees are not appropriate for work done on the NEPA and NFMA claims. This argument misconstrues the result Plaintiffs obtained.

         Defendants sought to dissolve the injunction granted against the Fleecer Project under Rule 60(b)(5). To prevail, Defendants needed to show that the injunction was no longer necessary because there was a "significant change either in factual conditions or in law." (Doc. 73 at 2-3 (citing All. for the Wild Rockies v. Weldon, 2011 WL 3348000, at *2 (D. Mont. Aug. 3, 2011)).) In other words, Defendants needed to show that they had fully complied with the Court's remand order. Sharp v. Weston, 233 F.3d 1167, 1170 (9th Cir. 2000).

         In opposition to Defendants' Rule 60 motion, Plaintiffs asserted four theories. To defeat Defendants' motion, Plaintiffs needed to prevail on only one-which is what happened in this case. While the Court disagreed with three of Plaintiffs' arguments-specifically, that the Forest Service failed to (1) supplement the Environmental Assessment to clarify its treatment of permitted and administrative roads, (2) justify its decision to exclude temporary roads from road density calculations, and (3) provide a "full and fair" discussion of the impact of temporary roads on elk-the Court sided with Plaintiffs' first argument that the Forest Service had failed to discharge its duties with respect to the effects of the Forest Plan on lynx. Defendants asked the Court to permit the ...

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