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Cascadia Wildlands v. Bureau of Land Management

United States District Court, D. Oregon

December 12, 2013

BUREAU OF LAND MANAGEMENT, an administrative agency of the United States Department of Interior, Defendant,
FRERES LUMBER COMPANY, INC., an Oregon corporation, Defendant-Intervenor

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[Copyrighted Material Omitted]

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For Plaintiffs: Nicholas S. Cady, Cascadia Wildlands, Eugene, Oregon; Peter M.K. Frost, John R. Mellgren, Western Environmental Law Center, Eugene, Oregon.

For Defendant: Robert G. Dreher, Acting Assistant Attorney General, Brian M. Collins, U.S. Department of Justice, Environmental and Natural Resources Division, Washington, District of Columbia; S. Amanda Marshall, United States Attorney, Stephen J. Odell, Assistant United States Attorney, Portland, Oregon.

For Defendant-Intervenor: Scott W. Horngren, American Forest Resource Council, Portland, Oregon.


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Ann Aiken, United States District Judge.

Plaintiffs Cascadia Wildlands, Oregon Wild, and the Benton Forest Coalition move for attorney fees and costs pursuant to the Equal Access to Justice Act (" EAJA" ), 28 U.S.C. § 2412, after prevailing on one of their claims against defendant the Bureau of Land Management (" BLM" ). The BLM opposes plaintiffs' motion on the basis that its position was

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substantially justified; alternatively, the BLM asserts that plaintiffs' request for fees is unreasonable and not supported by the relief obtained. For the reasons set forth below, plaintiffs' motion is granted in part, in that attorney fees are awarded in the reduced sum of $75,035, and costs are awarded in full in the amount of $1,042.05.


The history of this matter is well known to the parties. It will therefore only be repeated to the extent necessary to provide context for the present motion.

In relevant part, The Alsea River Watershed Restoration project authorized commercial thinning on public lands, resulting in the North Fork Overlook (" Overlook Project" ) timber sale. The Overlook Project consisted of four forest stands, designated as 17A, 17B, 17C, and 19A. On January 18, 2011, after exhausting their administrative remedies, plaintiffs filed a complaint in this Court, alleging that the 2010 environmental assessment (" EA" ), approving the Overlook Project and confirming that it complied with the applicable land-use plans, violated the Federal Land Policy and Management Act (" FLPMA" ) and the National Environmental Policy Act (" NEPA" ) because it failed to analyze whether the proposed thinning would harm the red tree vole in stands 17A and 17B.

On August 10, 2012, plaintiffs moved for summary judgment. On August 30, 2012, defendant-intervenor Freres Lumber Company (" Freres" ) filed a cross-motion for summary judgment. On August 31, 2012, the BLM filed a cross-motion for summary judgment. On December 21, 2012, this Court granted summary judgment in favor of the BLM and Freres on two of plaintiff's claims; however, the Court ruled in favor of plaintiffs on their final claim, thereby enjoining the BLM from going forward with the Overlook Project until a supplemental EA was conducted in light of significant new information. See generally Cascadia Wildlands v. Bureau of Land Mgmt., 2012 WL 6738275 (D.Or. Dec. 21, 2012).

On September 23, 2013, after the parties engaged in further settlement negotiations and ultimately reached an agreement providing for buffers around certain known vole sites, plaintiffs filed the present motion seeking $99,918.45[1] for legal work performed by Peter Frost, Nicholas Cady, and John Mellgren.


A party that prevails against the United States government in a civil action is entitled, in certain circumstances, to an award of attorney fees, court costs, and other expenses under the EAJA. See 28 U.S.C. § 2412; see also Wilderness Soc'y v. Babbitt, 5 F.3d 383, 385 (9th Cir. 1993). In pertinent part, the EAJA provides:

[e]xcept as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially

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justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A).

Thus, the EAJA establishes a two-part test for determining whether an award of attorney fees is appropriate. The court must first ascertain if the plaintiff was a prevailing party; if so, the court must then evaluate whether the government was substantially justified in its position and that no other special circumstances exist for making an award of attorney fees unjust. See Thomas v. ...

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