Opinion
2:21-cv-01033-HL
12-12-2023
BLUE MOUNTAINS BIODIVERSITY PROJECT, an Oregon nonprofit corporation, Plaintiff, v. CRAIG P. TRULOCK, Forest Supervisor, Malheur National Forest, in his official capacity; and UNITED STATES FOREST SERVICE, an agency of the United States Department of Agriculture, Defendants.
FINDINGS AND RECOMMENDATION
ANDREW HALLMAN UNITED STATES MAGISTRATE JUDGE
Plaintiff, Blue Mountains Biodiversity Project (“Blue Mountains”), brought this case against Defendants, Craig Trulock and the United States Forest Service (“Forest Service”), challenging a 40,000-acre project in the Malheur National Forest under the Administrative Procedure Act (“APA”), the National Forest Management Act (“NFMA”), and the National Environmental Policy Act (“NEPA”). The parties filed cross motions for summary judgment, and this Court granted summary judgment for the Forest Service on all of Blue Mountains' claims. Opinion and Order, ECF 63.
The Forest Service timely filed a bill of costs pursuant to Federal Rule of Civil Procedure 54(d) and 28 U.S.C. § 1920. Bill of Costs, ECF 65. The Service seeks costs in the amount of $3,232.20 for preparing and formatting documents for the Administrative Record and producing records in electronic form. Id. Blue Mountains objects and asks this Court to exercise its discretion and disallow award costs completely. Obj. Bill of Costs 2, ECF 67. In the alternative, Blue Mountains asks this Court to limit costs to $288.00, which was the actual cost to produce the administrative record. Id. at 6.
For the reasons discussed below, Blue Mountains' objections to the Bill of Costs should be overruled, and the Forest Service should be awarded $3,232.20 in costs.
DISCUSSION
I. The Court's Equitable Discretion to Deny Costs.
A. Legal Standards
Rule 54(d)(1) provides, in relevant part: “Unless 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)(1). Rule 54 “creates a presumption in favor of awarding costs to a prevailing party, but vests in the district court discretion to refuse to award costs.” Assoc. of Mex.-Am. Educators v. California, 231 F.3d 572, 591 (9th Cir. 2000). The burden is ultimately “incumbent upon the losing party to demonstrate why the costs should not be awarded.” Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1079 (9th Cir. 1999).
If a district court decides to disallow costs, it must “specify reasons for its refusal to award costs.” Id. A district court does not need to give affirmative reasons for awarding costs; only that the reasons for denying costs are not sufficiently persuasive to overcome the presumption in favor of an award. Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003).
“A district court may consider equitable justifications when deciding whether to deny costs to a prevailing party.” Wild v. United States Forest Serv., No. 1:22-CV-01007-MC, 2023 WL 7545769, at *2 (D. Or. Nov. 14, 2023) (citing Escriba v. Foster Poultry Farms, Inc. 743 F.3d 1236, 1247-48 (9th Cir. 2014)). In determining whether an award of costs should be denied, the Ninth Circuit considers: “(1) The substantial public importance of the case, (2) the closeness and difficulty of the issues in the case, (3) the chilling effects of future similar actions, (4) the plaintiff's limited financial resources, and (5) the economic disparity between the parties.” Escriba, 743 F.3d at 1247-48. A district court only abuses its discretion in denying costs “in the rare occasion where severe injustice will result from an award of costs.” Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003) (citing Stanley, 178 F.3d at 1079).
B. Application
1. Public interest
While this case may have been brought in the public interest, “NEPA plaintiff[s] are not immune from costs of prevailing parties.” BARK v. Northrop, No. 3:13-CV-00828-AA, 2019 WL 1331731, at *2 (D. Or. Mar. 22, 2019). “[J]ust because a case is brought in the public interest does not mean it is one of substantial public importance. Because costs are awarded in the ordinary case under Rule 54(d), Plaintiffs must articulate why their case is extraordinary and has such public importance that the Court should rebut the Rule's presumption.” Wild, 2023 WL 7545769, at *2 (emphasis in original).
Here, Blue Mountains challenged a 40,000-acre site-specific project and argues that “the health of our National Forests, including the Malheur National Forest, has direct implications on the health of local populations and humanity in general.” Obj. Bill of Costs 5. Blue Mountains' generalized public interest arguments do not demonstrate that this particular site-specific challenge has some extraordinary public importance. And, while the specific legal claims raised by Blue Mountains could impact other site-specific challenges, “general subject matter arguments are not cases of substantial public importance.” Wild, 2023 WL 7545769, at *2 (collecting cases from other districts). Thus, the public interest factor does not weigh in favor of disallowing costs.
2. Closeness and difficulty of issues
Many NEPA cases present close and difficult issues, and this case was no exception. As Blue Mountains notes, this case was litigated for two years through cross-motions for summary judgment. But the complexity and difficulty of NEPA cases, standing alone, is not sufficient to overcome the presumption that costs should be awarded to the prevailing party.
In addition, Blue Mountains asserts that the issues in this case were close and difficult because its “claims were in part, based on prior successful litigation [it] filed in League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Connaughton, 2014 WL 6977611 (D. Or. Dec 9, 2014).” Obj. Bill of Costs 5. However, that decision “did not-in contravention of NFMA, the APA, and first principles of administrative law-impose a freestanding uniqueness requirement on the Forest Service.” Opinion and Order 6. Blue Mountains' contrary interpretation of Connaughton is not a basis to disallow costs.
3. Chilling effects on future similar actions
Blue Mountains asserts that if it “is required to pay the Bill of Costs, doing so will severely chill [its] ability and willingness to continue to engage in environmental advocacy work involving the federal management of our National Forests.” Hood Second Decl. ¶6, ECF 68. This conclusory allegation is surprising considering Blue Mountain's lengthy history of litigation in this District, some of which has been highly successful. It is also surprising considering that the costs sought are minimal in light of the length and scope of this litigation. Blue Mountain's conclusory allegation of a chilling effect is therefore insufficient to overcome the presumption that it should pay costs. See Wild, 2023 WL 7545769, at *2 (“Plaintiffs have not demonstrated that a severe injustice will result from an award of costs, and the relatively small sum requested by Defendants would not chill future public interest litigation”); Northrop, 2019 WL 1331731, at *2 (rejecting argument that imposition of costs will have a chilling effect where plaintiffs brought and continue to bring similar lawsuits in light of the entire length and scope of the litigation).
4. Plaintiff's limited financial resources and economic disparity
Finally, Blue Mountains asserts that costs should not be awarded based on its limited financial resources as a donation-supported nonprofit and the large economic disparity between it and the Forest Service. Hood Second Decl. ¶¶5-6. Blue Mountains is not indigent, however. Id. ¶4. “Limited financial resources alone are insufficient to deny costs to a prevailing party.” Los Padres Forestwatch v. United States Forest Serv., No. 219CV05925VAPKSX, 2021 WL 761731, at *3 (C.D. Cal. Feb. 25, 2021). Moreover, requiring Blue Mountains to pay the costs in this case would not result in a severe injustice, even in light of the resource disparity between the parties. Accordingly, Blue Mountains has failed to meet its burden to demonstrate that costs should not be awarded.
C. Exemplification Costs
In the alternative, Blue Mountains argues that the Forest Service cannot recover most of their claimed expenses under 28 U.S.C. § 1920. Obj. Bill of Costs 6. Specifically, Blue Mountains asserts that the costs for preparing and formatting documents for the Administrative Record, and producing records in electronic form, were for the convenience of counsel and therefore not compensable. Id. 7-8. Blue Mountains ask the Court to limit costs to the $288.00 that Forest Service incurred in copying the record and paying the docket fee. Id. Blue Mountains is incorrect.
Blue Mountains initially objected to the payment of any costs because the Forest Service failed to file a receipt for the claimed exemplification costs. Obj. 8-9. In reply, the Forest Service acknowledged the error and filed the invoice. Brubacher Second Decl. Att., ECF 69-1. The invoice was consistent with the Forest Service's detailed declarations and, as such, the error was harmless.
District courts “may not tax costs beyond those authorized by 28 U.S.C. § 1920.” Mata v. Oregon Health Auth., Civ. No. 6:13-cv-485-MC, 2017 WL 11726361, at *1 (D. Or. Mar. 6, 2017) (quotation and citation omitted). This includes “[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case[.]” 28 U.S.C. § 1920(4). Courts within this district have held that “costs associated with the formatting and preparing of the administrative record are proper and necessarily incurred to produce electronic copies.” Wild v. United States Forest Serv., No. 1:14-cv-00981-PA, 2015 WL 4609975, at *2 (D. Or. July 31, 2015); see also Wild, 2023 WL 7545769, at *1-3 (same); Bark v. Northrop, 607 Fed.Appx. 652, 655 (9th Cir. 2015) (affirming district court's award of costs for TIFF conversion, Bates stamping, and coding the administrative record). Based on this precedent, Blue Mountains is obligated to pay all the requested costs of preparing the record.
RECOMMENDATION
Blue Mountains' objections to the Bill of Costs, ECF 67, should be overruled, and the Forest Service should be awarded $3,232.20 in costs.
SCHEDULING ORDER
The Findings and Recommendation will be referred to United States District Judge Karin Immergut. Objections, if any, are due fourteen (14) days from Service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.