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Alliance for Wild Rockies, Inc. v. U.S. Army Corps of Engineers

United States District Court, D. Oregon, Portland Division

April 18, 2019

ALLIANCE FOR THE WILD ROCKIES, INC., Plaintiff,
v.
U.S. ARMY CORPS OF ENGINEERS, U.S. BUREAU OF RECLAMATION, and BONNEVILLE POWER ADMINISTRATION, Defendants.

          Kristine M. Akland Akland Law Firm PLLC Timothy M. Bechtold Bechtold Law Firm Marianne G. Dugan Attorney at Law Attorneys for Plaintiff

          Coby Healy Howell U.S. Department of Justice Environment and Natural Resources Division c/o U.S. Attorney's Office for Defendants

          OPINION & ORDER

          MARCO A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE

         Plaintiff 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 [41] [57-1] in the amount of $201, 093.66.

         BACKGROUND

         On 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.

         On May 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.

         On 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.

         Plaintiff 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.

         STANDARDS

         Under 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.

         Once 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.

         The 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).

         DISCUSSION

         In a 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 proceedings.” Id.

         The 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.

         Even if 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.

         Now, 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.

         Defendants 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.

         Regardless, 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.” ...


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