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Bark v. Northrop

United States District Court, D. Oregon, Portland Division

March 22, 2019

BARK, an Oregon non-profit corporation, FRIENDS OF MOUNT HOOD, an Oregon non-profit corporation, NORTHWEST ENVIRONMENTAL DEFENSE CENTER, an Oregon non-profit corporation, and SIERRA CLUB, a California non-profit corporation, Plaintiffs,
v.
LISA NORTHROP, Acting Forest Supervisor of the Mt. Hood National Forest, BILL WESTBROOK, Zigzag District Ranger, KENT CONNAUGHTON, Regional Forester for Region 6, and the UNITED STA TES FOREST SERVICE, a federal Agency; WILLIAM STELLE, Regional Director of the West Coast Region, and the NATIONAL MARINE FISHERIES SERVICE, Defendants, RLK AND COMPANY, an Oregon corporation, Defendant-Intervenor.

          OPINION AND ORDER

          ANN AIKEN UNITED STATES DISTRICT JUDGE

         Plaintiffs filed suit under the Administrative Procedures Act ("APA"), alleging violations of the National Environmental Policy Act ("NEPA"), the National Forest Management Act ("NFMA"), and the Endangered Species Act ("ESA") by federal defendants United States Forest Service ("the Forest Service") and National Marine Fisheries Service ("NMFS"). Previously, the Court denied plaintiffs' Motions for Summary Judgment and granted federal defendants' and defendant-intervenor, RLK's, Cross Motions for Summary Judgment, (docs. 192 and 230) On March 31, 2018, the Court entered a Final Judgment, formally dismissing this action. As prevailing parties, federal defendants and defendant-intervener have timely sought costs pursuant Federal Rule of Civil Procedure 54(d) and 28 U.S.C. § 1920. (docs. 233 and 234) Plaintiffs object to both Bills of Costs on the basis of individual line-items and equitable grounds. I conclude that plaintiffs have not met their burden to overcome the presumption of awarding costs to the prevailing party. Accordingly, I GRANT federal defendants costs in the amount of $7, 030.41 and defendant-intervenor costs in the amount of $591.75.

         LEGAL STANDARD

         Federal Rule of Civil Procedure 54(d) provides that, "[u]nless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney's fees-should be allowed to the prevailing party." Fed.R.Civ.P. 54(d). "Costs" taxable under Rule 54(d) "are limited to those set forth in 28 U.S.C. §§ 1920 and 1821." Twentieth Century Fox Film Corp. v. Entm't Distrib., 429 F.3d 869, 885 (9th Cir. 2005), (citing Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 445 (1987)). 28 U.S.C. § 1920, provides that the court may tax as costs:

(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.

28 U.S.C. § 1920.

         Rule 54 creates a presumption in favor of awarding costs to the prevailing party. See e.g., Ass'n of Mex.-Am. Educators v. California, 231 F.3d 572, 592-93 (9th Cir. 2000). "[I]f a district court wishes to depart from that presumption, it must explain why so that the appellate court will be able to determine whether or not the trial court abused its discretion, ..[and] explain why a case is not ordinary." Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003) (quotation marks and citation omitted). When exercising its discretion in to deny costs, Courts should consider the following factors: (1) whether the suit was brought in the public interest, (2) the limited financial resources of the losing party, (3) whether the suit was brought in good faith and whether the claims had merit, and (4) the chilling effect that imposing costs may have on future litigants. Ass'n of Mex.-Am. Educators, 231 F.3d at 591-593.

         The district court, however, "needs no affirmatively expressed reason to tax costs. Rather, it need only conclude that the reasons advanced by the party bearing the burden-the losing party-are not sufficiently persuasive to overcome the presumption," Id. at 946. Courts are free to construe the meaning and scope of the items enumerated as taxable costs in 28 U.S.C. § 1920. Alflex Corp. v. Underwriters Lab., Inc.,914 F.2d 175, 177 (9th Cir. 1990). The district court retains broad discretion to decide how much to award, if anything. Padgett v. Loventhal,706 F.3d 1205, 1209 (9th Cir. 2013). Ultimately, it is "incumbent upon the ...


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