United States District Court, D. Oregon, Portland Division
Kristine M. Akland Akland Law Firm PLLC Timothy M. Bechtold
Bechtold Law Firm Marianne G. Dugan Attorney at Law Attorneys
Healy Howell U.S. Department of Justice Environment and
Natural Resources Division c/o U.S. Attorney's Office for
OPINION & ORDER
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE
Alliance for the Wild Rockies seeks attorneys' fees and
costs amounting to $230, 676.79 from the United States Army
Corps of Engineers, Bureau of Reclamation, and Bonneville
Power Administration. The Court grants Plaintiff's
Motions for Attorneys' Fees  [57-1] in the amount of
October 18, 2010, the United States Fish and Wildlife Service
(“FWS”) designated several bull trout habitats as
“critical.” 75 Fed. Reg. 63898. As a result,
Defendants were required under the Endangered Species Act
(ESA) to initiate consultation on critical bull habitat in
the vicinity of their dams by submitting biological
assessments to the FWS. 16 U.S.C. § 1536.
6, 2016, Plaintiff sent Defendants a notice of intent to sue,
alleging that Defendants had not initiated consultation as
required. Mot. Dismiss Ex. 3, at 3-4. Defendants responded by
letter, indicating, in relevant part to this motion, that a
biological assessment for the Willamette River Basin Project
(“Willamette Project”) was scheduled for
completion in the fall of 2016. Mot. Dismiss Ex. 4, at 2. On
July 11, 2016, Plaintiff filed a complaint. ECF 1. On
September 27, 2016, Defendants submitted the Willamette
Project biological assessment to the FWS. Mem. in Opp'n
to Pl.'s Mot. for Atty's Fees (hereinafter
“Def. Resp.”) 12, ECF 62. On February 22, 2017,
this Court granted Defendants' motion to dismiss, finding
that Defendants had initiated consultation by submitting
biological assessments as required, thereby rendering the
case moot. Op. & Order 8, ECF 35.
April 17, 2017, Plaintiff filed a motion for attorneys'
fees on the theory that its lawsuit prompted Defendants to
initiate-or reinitiate-consultation on the identified dams.
Mot. Att'y Fees 6, ECF 41. The Court denied that motion,
and Plaintiff appealed. The Ninth Circuit affirmed in part
and reversed in part. Alliance for the Wild Rockies, Inc.
v. United States Army Corps of Engineers, 736 Fed.Appx.
160, 161 (9th Cir. 2018). The court distinguished between the
Defendants' actions on two different projects: the
Federal Columbia River Power System (“FCRPS”) and
the Willamette Project. Id. The court affirmed this
Court's conclusion that there was no “clear, causal
relationship” between the suit and Defendants'
actions on the FCRPS environmental assessment, but reversed
with regard to the Willamette Project. Id.
then filed a motion for attorneys' fees on appeal with
the Ninth Circuit, as well as a motion to transfer
consideration of that motion to the District Court. ECF 57.
The Court of Appeals granted the motion to transfer
consideration and remanded the case to this Court for further
proceedings. Id. On November 13, 2018, this Court
ordered Defendants to respond to both motions for district
and appellate attorneys' fees. ECF 59.
the ESA's citizen-suit provision, 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). Whether it is “appropriate” for a
plaintiff to receive an award absent a final judgment on the
merits is determined in the Ninth Circuit by a two-part
catalyst test. Ass'n of Cal. Water Agencies v.
Evans, 386 F.3d 879, 885-86 (9th Cir. 2004). The first
part of the test requires that the plaintiff show a
“clear, causal relationship between the
litigation brought and the practical outcome realized.”
Greater L.A. Council on Deafness v. Cmty.
Television, 813 F.2d 217, 220 (9th Cir. 1987) (quoting
Am. Const. Party v. Munro, 650 F.2d 184, 188 (9th
Cir. 1981)). Courts consider the order of events in
determining whether the plaintiff's suit was a material
factor in the defendant's conformity to law.
Wilderness Soc. v. Babbitt, 5 F.3d 383, 386 (9th
Cir. 1993). The second part of the test requires “that
the benefit achieved . . . [be] required by law.”
Greater L.A. Council, 813 F.2d at 220.
the court has determined that an award is appropriate, the
court must calculate what attorney fees are reasonable. The
calculation of a reasonable fee award usually involves two
steps. First, the court must calculate the “lodestar
figure” by taking the number of hours reasonably
expended on the litigation and multiplying it by a reasonable
hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433
(1983); Fischer v. SJB-P.D. Inc., 214 F.3d 1115,
1119 (9th Cir. 2000). The fee applicant bears the burden of
documenting the appropriate hours expended in the litigation
and must submit evidence in support of those hours worked.
See, e.g., Gates v. Deukmejian, 987 F.2d
1392, 1397 (9th Cir. 1993). In determining the lodestar
figure, the court may consider the factors set forth in
Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70
(9th Cir. 1975). These factors include the novelty or
difficulty of the case, the preclusion of other employment,
time limitations, the amount at stake, the results obtained,
and the undesirability of the case. Id.
court must review the petition for reasonableness, even if no
objection has been raised to the number of hours billed or
the hourly rate used. Gates, 987 F.2d at 1401. The
district court possesses “considerable
discretion” in determining the reasonableness of a fee
award. Webb v. Ada County, 195 F.3d 524, 526 (9th
Cir. 1999). While there is a strong presumption that the
lodestar figure represents a reasonable fee, see,
e.g., Miller v. Los Angeles County Bd. of
Educ., 827 F.2d 617, 621 (9th Cir. 1987), the court may
adjust the lodestar upward in “rare” and
“exceptional” cases. See
Pennsylvania v. Citizens' Council for Clean Air
Delaware Valley, 478 U.S. 546, 565 (1986).
Memorandum Disposition issued August 30, 2018, the Ninth
Circuit affirmed in part and reversed in part this
Court's denial of attorneys' fees. Alliance for
the Wild Rockies, Inc., 736 Fed.Appx. at 161.
Specifically, it concluded that while there was no
“clear causal relationship” between
Plaintiff's suit and the FRCPS environmental assessment,
Defendants' arguments did “little to dispel the
strong inference from the chronology that . . . it was
Alliance's suit which prompted the Defendants'
action” on the Willamette Project. Id. at 161.
The court went on to concluded that, “[i]n the absence
of any indication that Defendants were actively working to
proceed on the Willamette Project environmental assessment
absent the suit, we reverse the court's determination of
no clear causal relationship and remand for further
parties now dispute whether the Ninth Circuit's remand
for “further proceedings” contemplates only the
calculation of attorneys' fees or an opportunity for
Defendants to provide the Court with new evidence to show
they were actively working to proceed on the Willamette
Project environmental assessment absent suit. The Court
agrees with Plaintiff and interprets the Ninth Circuit's
order as directing the calculation of attorneys' fees.
the Ninth Circuit intended for this Court to conduct further
proceedings on the merits of the causal relationship, the
Court finds that Defendants have again failed to
“dispel the strong inference from the chronology that,
after four years of inaction on a ‘near final
draft,' it was Alliance's suit which prompted the
Defendants' action on the Willamette Project.”
See Alliance for the Wild Rockies, Inc.,
736 Fed.Appx. at 161. As noted by the Ninth Circuit, “a
‘near final draft' [of the biological assessment]
was developed and distributed between 2011 and 2012, but no
further action appears to have been taken until after
Alliance filed suit in 2016, when the Defendants were
apparently ‘able to provide the necessary staffing in
order to complete the near final SBA and submit to FWS to
initiate formal consultation.'” Id.
Defendants simply reiterate the same timeline of events
reviewed by the Ninth Circuit: agencies worked on an
assessment in 2011 and 2012, and they responded to
Plaintiff's 60-day notice in 2016 by explaining that they
expected “to initiate formal consultation by submitting
a supplemental [biological assessment] for the Willamette
dams ‘in fall 2016.'” Def. Resp. 10. On July
11, 2016, Plaintiff filed a complaint. On September 27, 2016,
agencies submitted a supplemental biological assessment for
the Willamette Project. In fact, Defendants appear to offer
only two “new” pieces of evidence-a more detailed
explanation of the timeline via declaration (which includes
the conclusory statement that “work was well underway
prior to the Plaintiff's complaint being filed”)
and an email from June 20, 2016. This email states only:
Greg Smith has generously agreed to bring this BA across the
finish line for the Corps. I spoke with Greg today and he is
going to come over and get some files he needs to do the
work. First step is for him to give us a schedule, then he
believes he can complete the BA in 30 to 45 days. If I ask
for the schedule by the end of this week, that should be
enough time for our reply to the court, yes?
Decl. Matthew Bradford Eppard, ECF 63, Ex. 3.
argue this evidence shows they began working on the project
after they received Plaintiff's 60-day notice of
intent but before Plaintiff filed the complaint.
Therefore, Defendants' actions were not motivated by the
litigation, but, at most, by the 60-day notice of intent to
sue. Defendants argue that, as a matter of law, actual
litigation-“not simply threatened litigation as with a
60-day notice of intent to sue”-must trigger a
defendant's decision to act. Def. Resp. 9. Defendants do
not cite any cases that discuss, let alone support, this very
narrow- and necessarily fact dependent-contention. Moreover,
this same argument was raised on appeal without success.
See 9th Cir. Def. Answer 11, ECF 17.
a single new email does not, in fact, “dispel the
strong inference from the chronology that . . . that it was
Alliance's suit which prompted the Defendants'
action” on the Willamette Project. In other words, even
accepting Defendants' arguments, one email sent after
receipt of the 60-day notice but before a lawsuit was filed
does not overcome the inference that it was the suit itself
that prompted Defendants' actions on the Willamette
Project. Defendants have identified no evidence that anyone
actually began working on the biological assessment
until after the complaint was filed. Indeed, while the email
estimates the biological assessment would be complete in 30
to 45 days, it was not submitted to FWS until September 27,
2016-100 days after the email was sent, and more than two
months after the complaint was filed. As noted by Defendants,
“[t]he purpose of [the 60-day] notice is to give the
federal government and any alleged violators an opportunity
to comply, and thus render a citizen suit unnecessary.”