Alliance for Wild Rockies v. Savage

          ORDER

          DANA L. CHRISTENSEN, CHIEF JUDGE.

         Before the Court are the Motion for Attorney Fees (Doc. 92) and Supplemental Motion for Attorney Fees (Doc. 112) of Plaintiff Alliance for the Wild Rockies ("Alliance"). Alliance seeks a total award of $215, 085.90 in fees and costs under the Endangered Species Act ("ESA") and/or the Equal Access to Justice Act ("EAJA"). The Federal Defendants, collectively referred to as "Forest Service" throughout this Order, oppose the motion, arguing that attorneys' fees are improper and, in the alternative, that Alliance should receive no more than $30, 282.77. The Court grants Alliance's motions in part, awarding a total of $163, 233.53.

         BACKGROUND

         Because the parties are familiar with the history of this case, the Court provides only a brief background summary. Alliance filed suit in 2015, bringing five claims for relief. Alliance withdrew one claim, and the Court granted summary judgment to the Forest Service and the Defendant-Intervenors on the remaining four claims. All for the Wild Rockies v. Savage, 375 F.Supp.3d 1152, 1154-55 (D. Mont. 2019). Alliance appealed from this Court's determinations that: (1) the Forest Service did not violate the ESA by not completing reconsultation regarding Canada lynx prior to proceeding with the challenged East Reservoir Project (the "Project"); and (2) the Forest Service did not violate the National Forest Management Act ("NFMA") when it authorized road construction within the Tobacco BORZ, an area outside of the grizzly bear recovery zone where grizzly bear activity is nonetheless significant. See All. for the Wild Rockies v. Savage, 897 F.3d 1025 (9th Cir. 2018).

         Solely on the basis of its ESA argument, Alliance moved for a preliminary injunction pending appeal, which the Ninth Circuit granted. All. for the Wild Rockies v. Savage, No. 16-35589, 2016 WL 4800870 (9th Cir. Sept. 13, 2016). While the injunction was in effect, the Forest Service completed the ESA reconsultation Alliance requested in this litigation. All. for the Wild Rockies, 897 F.3d at 1029-30. Because reconsultation was complete, Alliance's ESA claim was dismissed as moot, and the Ninth Circuit vacated this Court's prior determination that the Forest Service had not violated the ESA. Id.

         As for the single remaining claim, the Ninth Circuit sided with Alliance, holding that the Forest Service acted arbitrarily and capriciously by failing to first assess the baseline road mileage within the BORZ, in violation of NFMA. All for the Wild Rockies v. Savage, 897 F.3d 1025 (9th Cir. 2018). Following remand from the Ninth Circuit, this Court remanded the matter to the Forest Service without vacating the operative Record of Decision ("ROD"). All. for the Wild Rockies, 375 F.Supp.3d 1152.

         LEGAL STANDARD

         Alliance seeks fees under the EAJA and/or the ESA. Fee awards under the EAJA are nondiscretionary. 28 U.S.C. § 2412(d)(1)(A). "A court shall award to a prevailing party other than the United States fees and other expenses .. ., unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." Id, Under the ESA, in contrast, "[t]he 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). The standard is intentionally looser than the EAJA's "prevailing party" standard; it "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." Ruckelshaus v. Sierra Club, 463 U.S. 680, 688 (1983) (discussing the appropriate standard of the Clean Water Act); see Ass 'n of Cal. Water Agencies v. Evans, 386 F.3d 879, 884 (9th Cir. 2004) (explaining the application of Ruckelshaus to fee disputes brought under the ESA).

         Trial courts are best situated to decide fee disputes, and their decisions are reviewed for abuse of discretion. Cat Water, 386 F.3d at 883. "A district court abuses its discretion if its decision is based on an erroneous conclusion of law or if the record contains no evidence on which it rationally could have based its decision." Fischel v. Equitable Life Assurance Soc 'y, 307 F.3d 997, 1005 (9th Cir. 2002) (quotation omitted). "[T]rial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection." Fox v. Vice, 563 U.S. 826, 838(2011).

         DISCUSSION

         Before determining the appropriate award, the Court first considers the threshold issue of Alliance's entitlement to fees under both the ESA and the EAJA. An award is "appropriate" under the ESA, and Alliance is a "prevailing party" under the EAJA, and Alliance is accordingly entitled to a fee award. Ultimately, the Court adjusts the amount of the requested award to reflect Alliance's overall success.

         I. ENTITLEMENT TO FEES

         A. ESA

         The parties dispute whether Alliance is entitled to an award of fees under the ESA. Ultimately, Alliance did not receive a binding, final judgment on its ESA claim, which was dismissed as moot. The question here is whether the injunction issued by the Ninth Circuit, which precipitated the mootness determination, entitles Alliance to fees. It does.

         The ESA authorizes "any person" to "commence a civil suit on his own behalf... to enjoin any person, including the United States and any other governmental instrumentality or agency . .., who is alleged to be in violation of any provision of [the ESA] ... ." 16 U.S.C. § 1540(g)(1)(A). A court considering a citizen suit seeking enforcement of the ESA "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). Although it is not explicit in the text of the statute, "the Supreme Court has read a prevailing party requirement"-if somewhat loose-"into the ESA." Marbled Murrelet v. Babbitt, 182 F.3d 1091, 1095 (9th Cir. 1999) (citing Ruckelshaus, 463 U.S. at 682 & n. 1); see also Ctr. for Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794, 805 (9th Cir. 2009).

         The legal standard applicable to plaintiffs seeking fee awards under the ESA is somewhat unsettled. In 1984, the Ninth Circuit held that the touchstone is whether the party seeking fees "ma[d]e a substantial contribution to the goals of [the ESA]." Carson-Truckee Water Conservancy Dist. v. Sec 'y of the Interior, 748 F.2d 523, 526 (9th Cir. 1984) (quoting Sierra Club v. Gorsuch, 672 F.2d 33, 42 (D.C. Cir. 1982), rev'don other grounds by Ruckelshaus, 463 U.S. 680). The Court has since made it clear that the "substantial contribution" standard no longer applies to "prevailing defendants," who may be entitled to a fee award even if their litigation position does not advance the goals of the ESA.^[1] Marbled Murrelet, 182 F.3d at 1094 (emphasis added). Trial courts have, at times, continued to apply the substantial contribution standard to plaintiffs' fee requests. See All. for the Wild Rockies v. U.S. Dep'tof Ag, CV 11-76-M-CCL, 2016 WL 4766234, at *4 (D. Mont. Sept. 13, 2016); S. Yuba River Citizens League v. Nat'l Marine Fisheries Serv., No. CIV S-06-2845 LKK/JFM, 2012 WL 1038131, at *3 (E.D. Cal. March 27, 2012); see also Envtl. Prot. Info. Ctr. v. Pac. Lumber Co., 103 Fed.Appx. 627, 629 (9th Cir. 2004) ("We need not resolve this doctrinal dispute, because [the] motion for attorneys fees satisfied both standards.").

         In this instance, the precise standard is irrelevant, as Alliance is a prevailing party, and its lawsuit substantially contributed to the goals of the ESA.^[2] Thus, the Court will first explain why Alliance is a prevailing party before turning to whether this lawsuit advanced protections for an endangered or protected species.

         "[T]he term 'appropriate' modifies but does not completely reject the traditional rule that a fee claimant must 'prevail' before it may recover attorney's fees." Ruckelshaus, 463 U.S. at 686. In Ruckelshaus the Supreme Court, considering identical language within the Clean Air Act, held that the "whenever . .. appropriate" standard "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." Id. at 688. "Put differently, ... Congress intended to eliminate both . . . restrictive readings of prevailing party' ... and the necessity for case-by-case scrutiny by federal courts into whether plaintiffs prevailed 'essentially' on 'central issues."' Id. (citations omitted). The Court went on to explain that "Congress understood 'prevailing party' and 'partially prevailing party' as two quite different things. Id. at 689.

         Here, however, the Court need not parse the distinction too carefully, as Alliance satisfies the more demanding "prevailing party" standard.^[3] "[W]hen a plaintiff wins a preliminary injunction and the case is rendered moot before final judgment, either by the passage of time or other circumstances beyond the parties' control, the plaintiff is a prevailing party eligible for a fee award." Higher Taste, Inc. v. City of Tacoma, 111 F.3d 712, 717 (9th Cir. 2013). In that instance, "although the plaintiff never secured a final judgment granting permanent injunctive relief, the preliminary injunction ended up affording all the relief that proved necessary." Id.; see also Watson v. Cty. of Riverside, 300 F.3d 1092, 1095-96 (9th Cir. 2002) ("Having succeeded in winning a preliminary injunction Watson obtained significant, court-ordered relief that accomplished one of the main purposes of his lawsuit. This is so even though he failed to prevail on his other claims.").

         After this Court issued its decision on the merits, concluding that the Forest Service was entitled to summary judgment on all four of Alliance's claims, Alliance appealed to the Ninth Circuit and moved for an injunction pending appeal. The motion was grounded singularly in the ESA claim, with Alliance arguing that it was entitled to an injunction to avoid the irreparable harm likely to occur if the Forest Service's planned timber sale went forward without agency reconsultation. The Ninth Circuit agreed, granting the injunction and staying the Project.

         While the injunction was in force but before the Ninth Circuit issued its opinion on the merits, the Forest Service completed reconsultation. All. for the Wild Rockies, 897 F.3d at 1031. The Court therefore concluded that Alliance "obtained all that it sought with [its lynx ESA claim]," rendering the claim moot. Id. The Ninth Circuit remanded with instructions to vacate the portion of this Court's judgment addressing the reconsultation claim and to dismiss the claim as moot, which this Court did. Id.; All. for the Wild Rockies, 375 F.Supp.3d at 1155. These events are immediately analogous to those of Higher Taste and Watson; here, as there, "the plaintiff w[on] a preliminary injunction and the case [wa]s rendered moot before final judgment, either by the passage of time or other circumstances beyond the parties' control." Higher Taste, 717 F.3d at 717.

         The Forest Service recognizes that preliminary injunctive relief may be grounds for classifying a litigant as a prevailing party. (Doc. 118 at 11-12.) It nonetheless contends that the injunction issued pending appeal is insufficient because the Ninth Circuit did not make a "judicial determination that the claims on which the plaintiff obtain[ed] relief are potentially meritorious." (Doc. 118 at 12 (quoting Higher Taste, 717F.3dat715.) It is true that the Court did not explain its thinking in its order granting the injunction pending appeal. But it found the Winter test satisfied, meaning that-at minimum-the Court determined that Alliance raised "serious questions going to the merits." All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011). Thus, even if the Forest Service was correct that the Court should look beyond the functional effect of an injunction into the merits of arguments ...