United States District Court, D. Montana, Missoula Division
L. CHRISTENSEN, CHIEF JUDGE.
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.
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).
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.
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.
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).
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).
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.
ENTITLEMENT TO FEES
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.
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).
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. 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
instance, the precise standard is irrelevant, as Alliance is
a prevailing party, and its lawsuit substantially contributed
to the goals of the ESA. 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
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.
however, the Court need not parse the distinction too
carefully, as Alliance satisfies the more demanding
"prevailing party" standard. "[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
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.
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.
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