United States District Court, D. Montana, Missoula Division
NATIVE ECOSYSTEMS COUNCIL, and ALLIANCE FOR THE WILD ROCKIES, Plaintiffs,
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.
L. CHRISTENSEN, CHIEF ISTRICT JUDGE.
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,
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.
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.)
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.
[ ] .. . 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).
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.)
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
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
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).
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 ...