Opinion
No. C98-3129 MHP
August 20, 1999
ORDER RE ATTORNEYS' FEES
Plaintiffs Environmental Protection Information Center ("EPIC") and Sierra Club brought this action against defendants Pacific Lumber Company ("PALCO") and its subsidiaries Scotia Pacific Holding Company and Salmon Creek Corporation alleging violations of section 7(d) of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536(d), and seeking declaratory and injunctive relief. On March 15, 1999, this court issued a final order granting plaintiffs' motion for preliminary injunction prohibiting PALCO from conducting or allowing any logging activities of any kind within the boundaries of Timber Harvest Plans ("THP") Nos. 1-96-413 HUM, 1-96-307 HUM, and 1-97-286 HUM. On May 5, 1999, this court granted defendants' motion for summary judgment and dismissed the action as moot after finding that because the consultation period required by ESA section 7(d) had ended, PALCO's duty to refrain from making any further irretrievable commitment of resources had ceased. Now before this court is plaintiffs' application for attorneys' fees pursuant to section 11(g)(4) of the Endangered Species Act, 16 U.S.C. § 1540(g)(4). Having considered the parties' arguments and submissions, and for the reasons set forth below, the court now enters the following memorandum and order.
Unless otherwise noted, the summary comes from this court's March 15, 1999 and May 5, 1999 orders.
Underlying this dispute are lands which are subject to an agreement between PALCO and its parent company, MAXXAM, Inc., the federal government and the state of California to preserve a 7,500 acre tract of old growth redwood forest in Humboldt County, California. The agreement is commonly known as the "Headwaters Agreement." The Headwaters Agreement originally anticipated the exchange of the tract of old growth forest for federal and state assets with a value of $300 million and other properties. The Headwaters Agreement also called for, among other things, the development and submission by PALCO of an incidental take permit ("ITP") application pursuant to section 10(a)(1)(B) of the ESA, 16 U.S.C. § 1539(a)(1)(B).
On June 12, 1998, PALCO applied for an ITP to the U.S. Fish and Wildlife Service ("FWS") and National Marine Fisheries Service ("NMFS") (collectively, "the Services"). See 63 Fed. Reg. 37900 (July 14, 1998). The ITP sought would authorize PALCO to incidentally take 17 listed species and some species that are currently not but may become listed during a fifty-year period on approximately 211,000 acres of land owned by PALCO and its subsidiaries. These lands include areas within the Mattole River watershed and the Sulphur Creek and Bear Creek drainages, which according to plaintiffs, are the critical habitats of several species listed as threatened or endangered under the ESA, including the coho salmon ("coho"). In July 1998, in conjunction with its permit application, PALCO submitted a proposed Habitat Conservation Plan ("HCP") in accordance with the requirements of ESA section 10(a)(2)(A), 16 U.S.C. § 1539(a)(2)(A), and a proposed Implementation Agreement. 63 Fed. Reg. at 37900.
Meanwhile, because the California Department of Forestry approved the three PALCO THPs in question, PALCO began logging in these areas during the time that the Services were to be consulting on PALCO's ITP application. Therefore, on August 12, 1998, plaintiffs filed their complaint seeking a declaratory judgment that PALCO was violating section 7(d) of the ESA by continuing to log in the areas related to the ITP. Furthermore, plaintiffs sought a Temporary Restraining Order ("TRO"). On August 14, 1998, Judge Henderson issued the requested TRO and enjoined PALCO from logging within the three areas covered by above-mentioned THPs. This court later converted the TRO into a preliminary injunction and also prevented PALCO from removing logs from the forest floor in those areas. On March 15, 1999 this court issued its findings of facts and conclusions of law in relation to the preliminary injunction.
Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Award of Reasonable Attorneys' Fees at 4:8-4:14.
The Services did issue a notice of receipt and availability for public comment for PALCO's permit application, HCP, and proposed Implementation Agreement pursuant to the notice and public comment requirement of section 10(c) of the ESA. 63 Fed. Reg., at 37900-01. On November 16, 1998, the FWS and NMFS initiated "formal consultation" on the Services' proposal to issue an ITP to PALCO pursuant to section 10(a)(1)(B) and its implementing regulations at 50 C.F.R. Parts 17 and 222, respectively. See Letter dated November 16, 1998 from the Services to John Campbell. The Services also stated:
Based on the initiation of formal consultation, the provisions of section 7(d) of the Act and 50 C.F.R. § 402.09 now apply. Under Section 7(d) PALCO may make no irreversible or irretrievable commitment of resources that would have the effect of foreclosing the formulation or implementation of any reasonable or prudent alternatives which would avoid violating section 7(a)(2) of the Act.
Id.
On January 22, 1999, the Services issued a notice of availability of the joint final Environmental Impact Statement/Environmental Impact Report ("EIS/EIR") and Habitat Conservation Plan ("HCP")/Sustained Yield Plan ("SYP") relating to the issuance of the ITPs. 64 Fed.Reg. 3483 (Jan. 22, 1999). The notice of availability states that decisions on the action for which the EIS/EIR was prepared "will occur no sooner than February 22, 1999." Id. In part, the final EIS/EIR is intended to "indicate any irreversible commitment of resources that would result from implementation of the final proposed action." Id. at 3485. On February 24, 1999, the Services issued a Biological/Conference Opinion ("BO") on PALCO's request for the ITPs. On February 25, 1999, the Services also finalized their Record of Decision ("ROD") supporting the issuance of the ITP and related actions. The ITP was issued on February 26, 1999, to be effective on March 1, 1999, upon finalization of the Headwaters Agreement. On March 1, 1999, the Headwaters Agreement was finalized and both the BO and the ITPs were released.
In its BO, the NMFS determined that the issuance of the ITP is neither "likely to jeopardize the continued existence" of the Southern Oregon/Northern California Coast ("SONCC") Evolutionary Significant Unit ("ESU") coho, nor "likely to destroy or adversely modify proposed critical habitat" of the SONCC ESU coho. ROD, App. B at 12. The BO also states in closing:
This concludes formal consultation and conference on the action outlined in the request.
As provided in 50 C.F.R. § 402.16, reinitiation of formal consultation is required where discretionary Federal agency involvement or control over the action has been retained (or is authorized by law) and if: (1) the amount or extent of incidental take is exceeded; (2) new information reveals effects of the agency action that may affect listed species or critical habitat in a manner or to an extent not considered in this opinion; (3) the agency action is subsequently modified in a manner that causes an effect to the listed species or critical habitat not considered in this opinion; or (4) a new species is listed or critical habitat designated that may be affected by the action. In instances where the amount or extent of incidental take is exceeded, any operations causing such take must cease pending reinitiation. BO at 416-17.
Prior to the release of the BO and the ITP, plaintiffs filed a motion for partial summary judgment asking this court to declare PALCO subject to the provisions of ESA section 7(d).
Subsequently, PALCO filed a cross motion for summary judgment and motion for dismissal arguing that the action was mooted by the completion of consultation required by ESA section 7(d). On May 5, 1999, this court issued an order granting defendants' motion for summary judgment and/or motion to dismiss as moot and denying plaintiffs' motion for partial summary judgment. Plaintiffs now argue that they are entitled to attorneys' fees in the amount of $223,130 and costs of $8,935.42 because the litigation substantially contributed to the goals of the ESA.
DISCUSSION I. Attorneys' Fees May be Awarded in Appropriate Cases A. Legal Standard
In any citizen suit brought under the Endangered Species Act, a district 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). Thus, a court's discretion to award attorneys' fees is restricted to "appropriate" cases. Although the Supreme Court has not explicitly considered the contours of "appropriateness" in the context of the Endangered Species Act, the Court did consider an identical attorneys' fees provision of the Clean Air Act in Ruckelshaus v. Sierra Club, 463 U.S. ¶ 80 (1982). In that case the Court held that a party need only prevail in part, i.e., achieve "some degree of success on the merits," before a district court may determine that an award of attorneys' fees is appropriate. Id. at ¶ 94. The Court interpreted the attorneys' fees provision of the Clean Air Act as creating a less stringent standard than that of civil rights statutes. Under 42 U.S.C. § 1988, for example, only "prevailing parties" may recover attorneys' fees. In order to be considered a prevailing party, one must prevail "on a significant issue in the litigation" and obtain some of the relief sought. Texas Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 793 (1989).
Section 307(f) of the Clean Air Act provides that: "The court in issuing any final order in any action brought pursuant to subsection (a), may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate." 42 U.S.C. § 7604(d).
However, the Court in Ruckelshaus stated that the Clean Air Act "was meant to expand the class of parties eligible for fee awards from prevailing parties to partially prevailing parties — parties achieving some success, even if not major success." Ruckelshaus, 463 U.S. at ¶ 88.
Subsequently the Ninth Circuit considered attorneys' fees standards under the ESA, noting that in determining whether to award fees in these types of environmental actions, courts should consider whether the party has substantially contributed to the goals of the statute. In an action brought pursuant to the ESA, the Ninth Circuit stated that "[t]he cases `made clear that whether the party claiming costs or fees has prevailed does not control the inquiry on appropriateness, and that the dominant consideration is whether litigation by the party has served the public interest by assisting the interpretation or implementation of the . . . Act.'" Carson-Truckee Water Conservancy Dist. v. Secretary of the Interior, 748 F.2d 523, 525 (9th Cir. 1984), cert. denied, 471 U.S. 1065 (1985) (quoting Alabama Power Company v. Gorsuch, 672 F.2d 1, 3 (D.C. Cir. 1982)). Thus, reasonable attorneys' fees may be awarded to a partially prevailing party whose litigation contributed to the goals of the act, and fees may be denied to a prevailing party whose case did not advance those goals. See Carpenter v. Andrus, 499 F. Supp. 976, 979 (D.Del. 1980) (denying attorneys' fees for a prevailing plaintiff whose suit "does not advance the statutory purpose either in intent or in result").
The Ninth Circuit's recent decision Marbled Murrelet v. Babbit, 99 C.D.O.S. 5408 (9th Cir. July 7, 1999) addressed the proper standard for an award of attorneys' fees to an ESA defendant. There the court changed the standard for prevailing ESA defendants from that outlined in Carson-Truckee to the standard laid down in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), for prevailing civil rights defendants. Id. at 5409. Since the instant request for fees comes from ESA plaintiffs, rather than defendants, the proper test for whether to make a fee award is whether the plaintiffs prevailed as outlined in Ruckelshaus. Id.
B. Discussion
Plaintiffs instituted this action to prevent PALCO from irreversibly committing resources during the time when the services were consulting about PALCO's ITP. Plaintiffs sought to keep PALCO from logging in the three THP areas and from retrieving logs which already had been felled thus protecting the coho and its habitat. Plaintiffs efforts resulted in court orders that established the application of section 7(d) of the ESA to private ITP applications as well as clarification that section 7 of the ESA applied to ITP applications under section 10. Furthermore, plaintiffs' TRO and preliminary injunction prevented logging while the services were reviewing the ITP and HCP. The injunctive relief also gave the state court time to review two of PALCO's THPs and the state court ordered CDF to revoke both approvals. Whether or not plaintiffs actually prevailed on every issue, it is clear that they essentially achieved the results they sought.Because plaintiffs achieved some success in this case, the court may award reasonable attorneys' fees if it finds that they furthered the goals of the ESA by bringing this suit. While conservation is the primary goal of the ESA, Carpenter, 499 F. Supp. at 980, the Carson-Truckee court noted that if the litigation "involved important, complex or novel issues . . . aided in interpreting the Act, and . . . the [plaintiffs'] efforts substantially contributed to the goals of the ESA" an award of attorneys' fees would be appropriate. Carson-Truckee, 748 F.2d at 525. With regard to conservation, plaintiffs' action arguably prevented harm to the endangered coho and thus substantially contributed to the goals of the ESA. Furthermore, the issues of interpreting and applying section 7(d) of the act and 7(d)'s interactions with section 10 were novel, important and complex and the efforts of plaintiffs did aid in interpreting the ESA. While PALCO argues that plaintiffs' efforts merely duplicated the efforts of the government agencies involved in the process, this court does not find them to be duplicative since if plaintiffs had not acted, PALCO could have logged and removed already felled logs in a manner adversely affecting the coho. As a direct result of their efforts in this suit EPIC and Sierra Club secured time in which the services could fully review and modify the ITP and the HCP without loss of coho or coho habitat.
II What Constitutes a Reasonable Fee Award A. Legal Standard
In this circuit, reasonable attorneys' fees are determined by first calculating the "lodestar." Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th Cir. 1987). The lodestar is found "by multiplying the number of hours reasonably expended on litigation by a reasonable hourly rate." Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986), amended by 808 F.2d 1373 (1987); accord Keith v. Volpe, 833 F.2d 850, 859 (9th Cir. 1987). There is a strong presumption that the lodestar figure represents a reasonable fee. Jordan, 815 F.2d at 1262. In calculating the lodestar, the court must determine both a reasonable number of hours and a reasonable hourly rate for each attorney. Chalmers, 796 F.2d at 1210.
B. Discussion 1. Reasonable Hours
After a thorough review of the declarations and exhibits submitted by plaintiffs, the court finds that the number of hours expended on the merits of this case and the fee application are reasonable. There is no question that EPIC and Sierra Club's counsels spent an enormous amount of time on this case, and the court is persuaded that these hours were necessitated by the complexities of the factual situation and the questions of law presented.
A district court must base a finding of reasonable hours on evidence and sound documentation. "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." Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992) (citing Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). The court may adjust these hours downward if it believes the documentation to be inadequate, if the hours were duplicative, or if the hours were either excessive or unnecessary. Chalmers, 796 F.2d at 1210.
The declarations submitted by plaintiffs' counsel chronicle the extensive research and briefing that led to the successful resolution of this case. The declarations demonstrate that the long hours spent on research, court filings and witness preparation were necessary to achieve the swift relief necessitated by PALCO's intent to log or remove downed logs. Plaintiffs' declarations and exhibits support their claim that the hours spent on the case were reasonable in light of the complexities involved.
Once the fee applicant has provided evidence which supports the hours worked, then "[t]he party opposing the fee application has a burden of rebuttal that requires submission of evidence to the district court challenging the accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in its submitted affidavits." Gates, 987 F.2d at 1397-98 (citing Blum v. Stenson, 465 U.S. 886, 892 n. 5 (1984)). While the court does find certain mathematical errors in plaintiffs' submissions which will be detailed below, the court received no declarations or other evidence which tends to show that plaintiffs' counsels worked an unreasonable number of hours or misrepresented the complexities of the case.
PALCO does contend in its opposition papers that if this court intends to award attorneys' fees, plaintiffs' attorneys should not be awarded the full fee award requested.
PALCO argues that work done by plaintiffs counsel after the September 3, 1998 injunction should not be compensated because the substantive rights of the parties were not affected by work undertaken by plaintiffs' counsel after that date. PALCO also presents two alternatives for reducing fees to plaintiffs, one eliminates compensation for work done after formal consultation commenced and the second fails to compensate plaintiffs for work done after PALCO filed its motion to dismiss on grounds of mootness.
However, given the fact that the relief obtained by plaintiffs not only protected the coho but also furthered the interpretation of the ESA, this court finds it inappropriate to create cut off dates after which plaintiffs should not be compensated. The action taken as a whole furthered the goals of the ESA and therefore plaintiffs are entitled to attorneys' fees for the entire action.
Although PALCO offers no probative evidence that plaintiffs' counsels' efforts were duplicative or frivolous, plaintiffs did delete a total of at least 18.8 hours of work expended on the merits of the case from its lodestar calculation, which resulted in a reduction of $4,510 from the total lodestar. Since the remaining hours were reasonable expended, EPIC and Sierra Club's counsels shall be compensated for all of the hours that they claim in the fee application.
Only two of the attorneys specifically note that they have reduced their hours. Duggan eliminated 10 hours for a savings of $2,750. See Duggan Dec. ¶ 15. Gaffney cut 8.8 hours saving $1,760. Gaffney Dec. Exh. A. The other counsel simply state that they have eliminated duplicative hours. See Cummings Dec. ¶ 8, Mueller Dec. ¶ 12 and Supplemental Pearl Dec. ¶ 2. PALCO has not challenged the number of hours as unreasonable.
2. Reasonable Hourly Rate
The last issue before the court is whether the hourly rates requested by plaintiffs, ranging from $145.00 to $350.00 an hour, are reasonable. Determining a reasonable hourly rate is a critical inquiry. Jordan, 815 F.2d at 1262 (citing Blum, 464 U.S. at 895 n. 11). The court must consider several factors including the experience, skill and reputation of the applicant. Chalmers, 796 F.2d at 1210. The court must look to the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience and reputation; it may not refer to the rates actually charged to the prevailing party. Id. at 1210-11. It is the applicant's burden to produce evidence, other than the declarations of interested counsel, that "the requested rates are in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation." Jordan, 815 F.2d at 1263. In addition, in figuring a reasonable fee, the court should consider the outcome of the action, the customary fees and whether a contingent fee arrangement is involved, and the novelty or difficulty of the issues presented. Chalmers, 796 F.2d at 1211 (citing Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976); Hamner v. Rios, 769 F.2d 1404, 1407-09 (9th Cir. 1985)).
Plaintiffs' counsel Brendan Cummings charges $145 an hour, Sharon E. Duggan charges $225 per hour, Brian Gaffney charges $200 an hour, Tara Mueller charges $210 an hour, and Richard Pearl charges $350 an hour.
In Jordan, the Ninth Circuit declined to consider the sufficiency of the evidence required to support a claimed fee. Jordan, 815 F.2d at 1263 n. 9. The court was inscrutable on the issue of whether a declaration stating the rate requested was comparable to the declarant's own rates would be sufficient. Id.
Plaintiffs have provided declarations from disinterested attorneys who attest to the complexity of environmental litigation, the skill required to litigate issues similar to those in this case, the experience, ability and quality of work of plaintiffs' counsels, and the rates charged by attorneys in San Francisco with similar expertise and experience. See Brecher Dec., Pearl Dec. and Rosen Dec. These declarations and the declarations of plaintiffs' attorneys all support the reasonableness of the hourly rates requested.
PALCO responds to this evidence with arguments that plaintiffs are not entitled to fees because they did not achieve sufficient success on the merits. No declarations or exhibits were submitted by PALCO to counter plaintiffs' evidence that the requested rates are reasonable.
The court therefore finds that the hourly rates requested by plaintiffs are reasonable.
3. Corrected Lodestar
In their reply brief, plaintiffs submitted a revised lodestar. While the corrections addressed some of the court's concerns about mathematical errors, some relatively minor problems remain. The following table represents this court's calculation of plaintiffs' counsels' hours based on the documentation submitted:
Attorneys Hours Rate Total for Fees Costs Submitted
Sharon Duggan 256.10 $275 $70,427.50 $1,459.98 Brian Gaffney 289.10 $200 $57,820.00 $1,020.80 + $5,528.28 Tara Mueller 194.10 $210 $40,761.00 $272.08 Brendan Cummings 219.40 $145 $31,813.00 $571.17 Richard Pearl 62.35 $350 $21,822.50 $233.11
SUBTOTAL $222,644.00 $9,085.42
Since defendants raised certain concerns about costs and plaintiffs are requesting $8,935.42, this court will assume that plaintiffs have reduced their cost request by $150 in response to those concerns. As to the fee request, this court has merely corrected mathematical or typographical errors.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that plaintiffs' application for attorneys' fees and costs is GRANTED in the amount $231,579.42. The defendants are hereby ordered to pay to plaintiffs the above amount within sixty (60) days of the date of this order.
IT IS SO ORDERED.