Opinion
CV F 01-5722 AWI SMS.
June 25, 2004
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS' MOTION FOR ATTORNEY FEES AND COSTS [Document # 106]
INTRODUCTION
In this action for declaratory judgment and injunctive relief, plaintiffs Home Builders of Northern California, California Chamber of Commerce, Construction Materials Association of California, Building Industry Legal Defense Foundation, California Alliance for Jobs, Steven M. DeLucchi, and Mary O. DeLucchi (collectively, "Plaintiffs") partially prevailed in their action against defendant United States Fish and Wildlife Service ("Service"), and intervenor Center for Biological Diversity. Plaintiffs' motion for summary judgment was granted in part and denied in part. As a result, Service's final rule designating critical habitat for the Alameda Whipsnake ("Whipsnake") was vacated and remanded to the agency for further action to correct a number of identified deficiencies. In the instant motion, Plaintiffs request attorney fees pursuant to the citizen suits provisions of the Endangered Species Act, 16 U.S.C. § 1540(g).
All references to section numbers refer to sections of Title 16 of the United States Code unless otherwise specified.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The complaint in this action was filed on June 7, 2001. The Service; the Department of the Interior, Gale A. Norton, Secretary of the Interior; and Marshall P. Jones, Jr., Acting Director of the Service (collectively, "Defendants"), filed an answer on September 18, 2001. On October 19, 2001, the Center for Biological Diversity ("Intervenor") filed a motion to intervene, which the Magistrate Judge granted in an order entered December 4, 2001. The court filed Intervenor's previously-lodged answer on December 4, 2001.On February 22, 2002, Defendants filed a motion for voluntary remand in order to correct portions of the final rule that they had identified as non-conforming to the requirements set forth by the Endangered Species Act ("ESA"). Defendants' motion for voluntary remand was denied on July 2, 2002. On September 20, 2002, Defendants filed a renewed motion for voluntary remand, which was denied on November 6, 2002.
Plaintiffs filed their motion for summary judgment on December 20, 2002. Defendants filed their cross-motion for summary judgment on February 6, 2003. On May 9, 2004, the court granted in part and denied in part the motions for summary judgment of both Plaintiffs and Defendants, vacated the Service's final rule and remanded the final rule to the Service for further action consistent with the opinion. Intervenor filed notice of appeal to the Ninth Circuit on June 18, 2003. An order scheduling the Service to complete and publish a draft proposed final rule not later than October 1, 2004 was filed on January 14, 2004. An amended notice of appeal to include both the order granting in part Plaintiffs' motion for summary judgment and the court's order scheduling on remand was filed by Intervenor on February 18, 2004. Service filed an appeal on March 8, 2004.
The instant Motion for Attorney Fees was filed by Plaintiffs on February 13, 2004 and amended on February 18, 2004 to correct the hearing date only. Defendants filed their opposition to the Motion for Attorney Fees April 12, 2004. The matter was originally taken under submission and off calendar on April 14, 2004. The parties thereafter filed a Notice of Rescheduled Hearing and an Unopposed Request for Telephonic Hearing on April 15, 2004. It appears a telephonic hearing has been set for June 21, 2004.
LEGAL STANDARD
"In any citizen suit brought under the Endangered Species Act, the court `may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.'" Envtl. Prot. Info. Ctr., Inc. v. Pacific Lumber Co., 229 F. Supp.2d 993, 998 (N.D. Cal. 2002) (quoting § 1540(g)(4)). For an award of attorney fees to be appropriate, the party requesting the award must have had "some degree of success on the merits" of the underlying claim.Ruckelshaus v. Sierra Club, 463 U.S. 680, 694 (1983). The fee-shifting provisions of section 1540(g)(4) are to be applied so as to carry out Congress' intent to promote citizen enforcement of important federal policies under the ESA. See Marbled Murrelet v. Babbitt, 182 F.3d 1091, 1095 (9th Cir. 1999); (overruling the holding in Carson-Truckee Water Conservancy Dist. v. Secretary of the Interior, 748 F.2d 523, 525-526 (9th Cir. 1984), which required the citizen's action "substantially contribute" to the goals of the ESA); Klamath Siskiyou Wildlands Center v. Babbitt, 105 F. Supp.2d 1132, 1141-1142 (D. Oregon 2000) (recognizing the applicability of the holding in Marbled Murrelet to citizen plaintiffs as well as defendants).
DISCUSSION
Broadly, Defendants allege first that Plaintiffs are not due any attorney fees pursuant to section 1540(g)(4) because the case did not involve issues that fell within the scope of issues that may be addressed through citizen actions. Second, Defendants contend that if an award of attorney fees is authorized, the court should stay the matter pending the outcome of appellate proceedings. Third, Defendants allege Plaintiffs have overstated both their time and rate of compensation. The court will first determine whether any attorney fees are due, and if so upon what basis. If attorney fees are due, the court will stay the determination of the amount of fees pending the outcome of the any appeals.
I. The Court Has Discretion to Award Attorney Fees in this Case
Defendants' arguments regarding the court's discretion to award attorney fees break down into two related propositions. First, Defendants argue that the complaint did not allege acts or omissions on the part of the Service that could provide the basis for a citizen suit. Specifically, Defendants contend there can be no award of Attorney fees because the complaint alleged maladministration by Service, and the judicial review of agency maladministration is not authorized by the citizen suit provisions of the ESA. Second, Defendants contend that the first through fourth claims for relief, the claims that are based on the ESA, are actually claims under the APA because they utilize the legal standard set forth in the APA. Defendants then argue that, because the claims for relief are APA claims, the fee shifting provisions of section 1540(g)(4) do not apply. The court addresses each contention in turn.
A. Issues Raised in this Case Fall Within Provisions of Section 1540(g)
The ESA, in subdivision (g)(1) of section 1540 provides that "any person may commence a civil suit on his own behalf —
(A) to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof; or
(B) to compel the Secretary to apply, pursuant to section 1535(g)(2)(B)(ii) of this title, the prohibitions set forth in or authorized pursuant to section 1533(d) or 1538(a)(1)(B) of this title with respect to the taking of any resident endangered species or threatened species within any State; or
(C) against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary."
Thus section 1540(g)(1) authorizes citizen suits for, inter alia, injunctive relief for violations of any provision of the ESA and for equitable relief for any failure to perform a non-discretionary function.
Defendants argue is that the case at hand does not involve issues that are included within the ambit of section 1540(g). Defendant contend that issues included within the ambit of the citizen suit provision of the ESA are only those that "compel an agency to take a nondiscretionary action mandated by statute, but cannot be used to challenge the content or adequacy of the decision made." Defendants' Response at 2. Defendants essentially contend that Service discharged its duty to complete a final rule that incorporated the required elements, including a designation of the critical habitat for the Whipsnake, and the Service may not be challenged under the ESA on the basis of how well or poorly they performed that duty.
Defendants misconstrue the nature of the suit as well as the breadth of issues that may be addressed by way of citizen suits under the ESA. The three cases cited by Defendants serve to illustrate the error of their argument. Defendants citeKennecott Copper Corp v. Costile, 572 F.2d 1349, 1355 (9th Cir. 1978) and City of Las Vegas v. Clark County, 755 F.2d 697, 704 (9th Cir. 1984), for the collective proposition that "Citizen suits are `intended to provide relief only in a narrowly-defined class of situations in which the Administrator failed to perform a mandatory function; [they are] not designed to permit review of the performance of those functions.'" Defendants' Response at 2.Kennecott and City of Las Vegas are cases involving the citizen suit provisions of the Clean Air and Clean Water Acts, respectively. Kennecott, 572 F.2d at 1353; City of Las Vegas, 755 F.2d at 704. The Clean Water Act and the Clean Air Act have citizen suit provisions that are virtually identical with each other and that differ in important respects from the citizen suit provisions set forth in the ESA. The citizen suit provision contained in the Clean Water Act provides that:
Except as provided in subsection (b) of this section and section 1319(g)(6) of this title, any citizen may commence a civil action on his own behalf —
(1) against any person including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) in effluent standard or limitation under this chapter or (B) an order issued by the Administrator of a State with respect to such a standard or limitation, or
(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator. 33 U.S.C. § 1365(a). The corresponding wording in the Clean Air Act is identical except that the term "emission standard" is used in place of the term "effluent standard" in the Clean Water Act. 42 U.S.C. § 7604(a).
In the third case cited by Defendants, Bennett v. Spear, 520 U.S. 154 (1997), the Supreme Court recognized that the ESA's civil suit provision is "an authorization of remarkable breadth when compared to the language Congress normally uses." Id. at 164. The Court held that the "`any person' formulation applies to all the causes of action authorized by § 1540(g) — not only actions against private violators of environmental restrictions, and not only to actions against the secretary asserting underenforcement under § 1533, but also to actions against the Secretary asserting overenforcement under § 1533."Id. at 166. Thus, to the extend the more restrictive language of the statutes authorizing citizen suits under the Clean Air and Clean Water acts may have restricted the rights of plaintiffs inKennedcott and City of Las Vegas, those cases are not useful to determine the scope of allowable citizen suits under the ESA.
Section 1533 is the portion of the ESA that directs the Secretary to determine whether any species is an endangered or threatened species and to concurrently designate critical habitat for any listed species. This is the section that was the basis for most of Plaintiffs' ESA claims in the underlying suit.
In Bennett, the plaintiff claimed, inter alia that the Service had issued a Biological Opinion calling for changes in established water diversion practices in order to avoid jeopardizing two endangered species. The plaintiff claimed the issuance of the Biological Opinion amounted to the issuance of a critical habitat determination in violation of the requirement contained in section 1533(b)(2) requiring that the designation's economic impact be considered. Id. at 154. The Bennett Court concluded that plaintiffs' section 1533 claims (challenging the determination of an endangered species and designation of critical habitat) could be considered under section 1540(g)(1)(C) because it involved failure to perform a non-discretionary duty.Id. at 171-172. However, the court determined that the plaintiffs' claim under section 1536 (requiring interagency cooperation) was not the sort of claim that could be reviewed under section 1540(g)(1), subdivisions (A) or (C).
The Supreme Court interpreted the provisions of section 1540(g)(1)(A) in the context of subsection (1)(C) and determined that the broadly stated language of subsection (1)(A) that authorizes citizen suite for any violation of the ESA must be held to not include suits for maladministration because to hold otherwise would effectively render the provisions in subsection (1)(C) superfluous. Id. at 173. Thus, the Court in Bennett has interpreted the citizen suit provision of the ESA to grant broader authority for citizen actions that was available to plaintiffs in either Kennecott or City of Las Vegas but has held that citizen suits may not incorporate claims of agency maladministration.
Notwithstanding any uncertainties that may arise from attempting to distinguish between "maladministration" and failure to perform a nondiscretionary function, this court may rely on the Supreme Court's specific holding that alleged failure to properly perform a critical habitat determination under section 1533 is reviewable under section 1540(g)(1)(C). This holding is directly applicable to the present case logically as well as legally.
Although Defendants attempt to characterize the failure of the Service to formulate a final plan that complies with the requirements in section 1533 as "maladministration," the claims for relief that are based on the ESA clearly allege the failure of the Service to carry out some act or analysis that is required by the ESA in the formulation of a final plan. These alleged failures include, inter alia, the failure to designate specific areas occupied by the Whipsnake in the formulation of the critical habitat determination in the first claim, the failure to quantify the economic impact of the critical habitat determination in the second claim, the failure to provide adequate notice of the scope of the critical habitat determination in the third claim, and the failure to adequately respond to public comment in the fourth claim.
The terms of sections 1532(5) and 1533, upon which the first through fourth claims for relief are based, are plainly terms of obligation rather than discretion. See Bennett, 520 U.S. at 172 ("terms of section 1533(b)(2) are plainly those of obligation rather than discretion"). Stated another way, the failure of the Service, for example, to specifically designate areas occupied by the Whipsnake when such a determination is required by section 1532(5) is matter of failure to perform a nondiscretionary function since the Administrator does not have the option to not include such specificity. Likewise, the failure of the Service to quantify economic impacts is the failure to perform a non-discretionary function since those impacts are required by statute. In all, the failures alleged in the complaint with respect to the first four claims for relief are failures to perform nondiscretionary functions, not maladministration. B. The Terms of Section 1540(g)(4) Govern the Eligibility of Plaintiffs for an Award of Attorney Fees
By its terms, the language of section 1540(g)(1) authorizes a citizen to bring a suit in federal court. Thus, the terms of that section are basically jurisdictional and are only related to the issue of attorney fees insofar as the right to bring a citizen suit and the discretion of the court to award attorney fees are coextensive. Even if there were some question as to whether the underlying case was authorized by the citizen suit provisions of the ESA, Defendants have not challenged the jurisdiction of this court to review the case in the first instance. To the extent any argument challenging either jurisdiction or Plaintiffs' standing can be inferred from Defendants' argument, the court finds that argument unpersuasive for the above-stated reasons.
Defendants also attempt to avoid the fee-shifting provisions of section 1540(g)(4) by characterizing the instant action as being based on the APA rather than on the ESA. Defendants note that, for the first four claims for relief in the Complaint, the individual issues that comprised the claims were decided according to the arbitrary and capricious standard set forth in the APA at 5 U.S.C. § 706(2)(A). From this, Defendants assert that the first four claims for relief, which were plead under the ESA and the APA, were APA claims, not ESA claims and therefore not subject to attorney fees under the citizen suit provisions of the ESA.
Defendants are attempting to conflate the jurisdictional basis for this action with the statutory bases for the standard of review. It is well understood that the ESA does not articulate a standard of review and that, in the absence of an internal judicial standard, courts look to the APA. See Defenders of Wildlife v. Ballard, 73 F. Supp.2d 1094, 1101 (D.Ariz. 1999) (recognizing ESA and other environmental statutes contain no internal standard of review); Aluminum Co. of America v. Bonneville Power Admin., 175 F.3d 1156 1160 (9th Cir. 1999) (APA "governs judicial review of administrative decisions involving the [ESA]"). In particular, the listing of endangered species is reviewed by courts under the standard provided by the APA. Idaho Farm Bureau Fed. v. Babbitt, 58 F.3d 1392, 1401 (9th Cir. 1995). "The APA provides that final agency action shall be held unlawful and set aside if it is `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' or if it was taken `without observance of procedure required by law.'"Id. (quoting 5 U.S.C. § 706(2)(A), (D)).
As discussed previously, the citizen suit provision of the ESA were cited as providing the jurisdictional basis for an action against the Service, at least with regard to the first four claims for relief. Where it is possible that both the ESA and the APA might provide the basis for jurisdiction and standing, the terms of the ESA trump because the ESA "may permit petitioners to recover their litigation costs, see 16 U.S.C. § 1540(g)(4), and because the APA by its terms independently authorizes review only when `there is no other adequate remedy in a court,' 5 U.S.C. § 704." Bennett, 520 U.S. at 1160-1161.
As Defendants point out, the remaining claims for relief in the Complaint were plead under statutory schemes other than the ESA.
Section 1540(g)(4) authorizes a court to award reasonable costs of litigation "in any suit brought pursuant to paragraph (1) of this subsection. Since paragraph (1) sets forth the entire scope of courts' jurisdiction over citizen claims, the only reasonable interpretation of the provision in paragraph (4) is that it grants judicial discretion to award litigation costs coextensively with the grant of jurisdictional authority. In other words, courts may award litigation costs pursuant to section 1540(g)(4) in any case where jurisdiction has been found pursuant to Section 1540(g)(1) whether or not the jurisdictional provisions of the APA could apply and regardless of the fact that the legal standards of the APA must be applied.
Defendants attempt to characterize Plaintiffs' actions as being "APA actions" on the basis of the judicial standard applied is baseless and their argument that the cost-shifting provision of section 1540(g)(4) is therefore inapplicable is without merit.
II. An Award of Attorney Fees is Appropriate in this Case
The first criterion to be assessed in the determination of whether an award of attorney fees is appropriate is the extent to which the claimant has had some measure of success on the merits of the underlying suit. Ruckelshaus, 463 U.S. at 694. Here, Plaintiffs' first four claims for relief requested that the court declare Defendants did not meet statutory requirement pertaining to: (1) the designation of the Whipsnake's critical habitat; (2) the adequacy of the economic analysis; (3) the adequacy of notice of the proposed rule, and; (4) the adequacy of Services' response to public comment. Plaintiffs were granted summary judgment on the first, second, and third claims for relief, but not the fourth. Given that Plaintiffs' acknowledged overall goal was to invalidate the final rule and force Service to redraft a final rule to include a more specific (and presumably more limited) determination of the Whipsnake's critical habitat, the court must conclude Plaintiffs achieved a substantial degree of success on the merits of their suit and so have satisfied the first criterion.
There is some disagreement among courts of this circuit as to whether the holding in Carson-Truckee Water Conservancy Dist., 748 F.2d at 525-526 requiring that the citizen's action "substantially contribute" to the goals of the ESA still constitutes a valid additional requirement in cases where the plaintiff prevails. In Marbled Murrelet, 182 F.3d at 1095, the Ninth Circuit held the Carson-Truckee analysis was no longer appropriate in a case where the defendant prevailed in an ESA suit and requested attorney fees from the plaintiff. Id. at 1094-1095. Rather the Marbled Murrelet court adopted the civil rights standard set forth in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978), which allowed attorney's fees to a prevailing defendant only if the plaintiff's action was frivolous. The Marbled Murrelet court did not directly address the issue of whether, as a result of their holding, the converse was also true — that prevailing plaintiffs were due an award of attorney fees except where their suits were frivolous.
In Environmental Protection Information Center, Inc. v. Pacific Lumber Co., 229 F. Supp.2d 993 (N.D. Cal. 2002) ("EPIC"), the district court acknowledged the holding inMarbled Murrelet but concluded that since that case dealt specifically with the issue of an award of attorney fees to a defendant, the Carson-Truckee analysis was still appropriate where the issue was the appropriateness of an award of attorney fees to a prevailing plaintiff. Id. at 998-999. The same district applied the Carson-Truckee standard without discussion in Federation of Fly Fishers v. Daley, 200 F. Supp.2d 1181, 1187 (N.D. Cal. 2002). The District Court of Southern California applied the same analysis in Building Industry Legal Defense Foundation v. Norton, 259 F. Supp.2d 108 (S.D. Cal. 2003) by acknowledging the decision inEPIC, but without further analysis. Id. at 1087 fn4.
In contrast, the District Court of Oregon, in Klamath Siskiyou Wildlands Center, 105 F. Supp.2d at 1141-1142, examined the holding in Marbled Murrelet in the context of the prevailing plaintiff and concluded that Marbled Murrelet effectively overruled Carson-Truckee as applied to both prevailing defendants and prevailing plaintiffs leaving only the requirement that the plaintiff need only satisfy the requirement inRuckelshaus to be awarded attorney fees pursuant to section 1540(g)(4).
So far as can be determined, this court has made no determination of the applicability of the Carson-Truckee standard to prevailing plaintiffs in light of the decision inMarbled Murrelet to this point. Upon reflection, this court now concludes that the decision in Klamath Siskiyou Wildlands Center reaches the more well-reasoned conclusion. As the court in Klamath Siskiyou pointed out, the Ninth Circuit invalidated the Carson-Truckee standard following the Supreme Court's decision in Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. 546 (1986), which indicated that attorney fees awards in environmental cases should follow the same standards as are applicable to civil rights cases because the attorney fees statutes in both cases serve the same purpose — to encourage citizen enforcement of important legal rights. See Klamath Siskiyou Wildlands Center 105 F. Supp.2d at 1141. The court inKlamath Siskiyou also noted that the Ninth Circuit, in supporting their decision in Marbled Murrelet, heavily cited cases that applied the same standard whether the prevailing party was plaintiff or defendant.
In Marbled Murrelet, the Ninth Circuit recognized and approved of the asymmetrical nature of the standard they had adopted by recognizing that the standard served to encourage citizen participation in the vindication of important rights by only awarding fees to defendants only where the plaintiffs suit was frivolous or meritless. Marbled Murrelet, 182 F.3d at 1095. Thus, the court in Marbled Murrelet recognized implicitly, if not explicitly, that serving the overall goal of citizen enforcement of important environmental rights necessarily implies an asymmetric standard that uses fee shifting in favor of the plaintiff in any instance where the suit has some merit, but only shifts fee awards to the defendant where the citizen suits have no merit or are frivolous. Obviously, "some success on the merits" almost always implies non-frivolousness, therefore the standard for fee shifting in favor of plaintiffs can be shortened simply to some success on the merits as set forth in Rucklehaus.
The court finds that, in light of the Ninth Circuit court's decision in Marbled Murrelet, the standard for award of attorney fees to plaintiffs now requires only that the plaintiff has had some success on the merits of his or her case. Nothing more is required. Because Plaintiffs in this case have satisfied the standard, an award of attorney fees in Plaintiffs favor is appropriate.
III. Computation of the Actual Award Amount Should be Stayed
Apparently both Service and Intervenor have appealed this court's order of May 9, 2003, granting in part Plaintiffs motion for summary judgment. The Ninth Circuit ordered the appeals consolidated on April 14, 2004.
Attorney fee awards pursuant to section 1540(g)(4) have been held appropriate where costs are incurred in the successful defense of an appeal on the merits of claims brought under the ESA. Palila (Psittirostra Bailleui) v. Hawaii Dep't Land and Nat. Res., 512 F. Supp. 1006, 1009 (D. Ha. 1981). Although courts may award attorney fees separately for work connected with successful prosecution of a claim at the trial level and successful defense of the judgment on appeal, id. at 1009-1010, the facts of this case give good reasons to stay the computation of the award amount pending resolution of the case at the appellate level. First, staying the computation of the award amount pending outcome of the appeal will prevent an award of fees that may subsequently have to be partially or fully recovered if Defendants are successful in their appeal. Second, Defendants may wish to join to the existing appeals an appeal from this order. The court feels Defendants should have the opportunity to appeal this order and consolidate the appeal of this order with the existing appeals should Defendants choose to do so. Third, staying the computation of the amount of the fee award serves the interest of conservation of judicial resources by allowing all claims for fees to be submitted and argued at once. Finally, the issuance of this order, coupled by a stay as to the computation of the amount of the award, may allow the parties to reach agreement that would negate the need for appeal or in some other way reduce additional litigation expenses.
THEREFORE, in consideration of the above discussion, it is HEREBY ORDERED that Plaintiffs' Motion for Attorney Fees and Costs is hereby GRANTED. The computation of actual costs is ordered STAYED pending judgment in the consolidated appeal from cases numbered 03-16204 and 04-15548 now before the Ninth Circuit Court of Appeals, and as may be further modified or consolidated by the parties.
IT IS SO ORDERED.