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SAVE OUR CUMBERLAND MOUNTAINS, INC. v. HODEL

December 23, 1986

SAVE OUR CUMBERLAND MOUNTAINS, INC., et al., Plaintiffs,
v.
DONALD P. HODEL, et al., Defendants



The opinion of the court was delivered by: PARKER

 Barrington D. Parker, Senior District Judge:

 The Surface Mining Control and Reclamation Act of 1977 ("Surface Mining Act" or "Act"), 30 U.S.C. §§ 1201-1328, is a comprehensive statute designed, inter alia, to control and remedy adverse social, economic and environmental effects of surface coal mining operations, to minimize damages and risks affecting productivity of the soil arising from such operations, to protect the health and safety of the public, and to prevent or mitigate adverse effects of present and future surface coal mining operations. The Secretary, Department of the Interior ("Secretary") is primarily responsible for administering and implementing the Act and is obligated to take enforcement action against strip mining operators who have violated provisions of the Act.

 In September 1981, counsel for two Appalachian environmental groups, Save Our Cumberland Mountains, Inc. and Council of Southern Mountains, joined forces and filed this citizens' suit against the Secretary of Interior and the Director of the Office of Surface Mining ("OSM") of the Interior Department. They sought to enjoin those officials from further failing to recognize and to perform their statutory enforcement duties under the Surface Mining Act.

 At an early stage of the litigation the plaintiffs were granted summary judgment relief and on December 28, 1982, defendants were directed to assess mandatory, statutory, civil penalties against surface mine operators who had been previously cited for violations and issued cease and desist orders, but who nonetheless had never been fined and subject to the final relief prescribed under the Surface Mining Act. The Secretary was also ordered to pursue mandatory enforcement action against operators who ignored failure-to-abate, and cease and desist orders as required under relevant regulations. Save Our Cumberland Mountains, Inc. v. Watt, 550 F. Supp. 979 (D.D.C. 1982). Meanwhile, Congress specifically appropriated $1.1 million to implement this Court's 1982 ruling and on November 4, 1983, President Reagan signed into law H.R. 3069, the Department of Interior and Related Agencies Appropriations Act for 1984, Pub. L. No. 98-146, 97 Stat. 919 (Nov. 4, 1983).

 The government successfully appealed the December 1982 summary judgment decision, and on January 20, 1984, this Court's ruling was reversed on procedural grounds. Save Our Cumberland Mountains, Inc. v. Clark, 233 U.S. App. D.C. 328, 725 F.2d 1434 (D.C. Cir. 1984). The Circuit Court held that venue did not lie in the District of Columbia to review the Interior Secretary's failure to seek enforcement of the Act. Thereafter, the plaintiffs sought a rehearing en banc. On April 2, 1984, the rehearing petition was granted and the Circuit Court's opinion and judgment were vacated.

 Following these developments, the parties to this litigation pursued negotiations which resulted in a settlement, the provisions of which were embodied in an amended order entered by this Court on January 31, 1985. That order expressly provided that plaintiffs could apply for an award of attorneys' fees and costs for legal services undertaken and completed through January 31, 1985.

 Section 520 of the Surface Mining Act, 30 U.S.C. § 1270, expressly recognizes citizen suits and provides in part that persons having an interest which is adversely affected may commence a civil proceeding to compel compliance with the Act and authorizes the Court to award costs and attorneys' fees. Plaintiffs rely on this provision to request an award of attorneys' fees and costs totaling $463,497 as the prevailing party in this major litigation. Defendants concede, as they must, to plaintiffs' entitlement to fees and costs. However, they contest plaintiffs' petition arguing that the amount claimed is excessive, reflects unnecessary monitoring efforts by attorneys, inflated hourly rates and improper and undeserved application of multipliers.

 After considering the factual submissions and representations of counsel and their legal memoranda, the Court determines that the sum of $383,273.00 in fees and $9,697.19 in costs is a fair and reasonable amount.

 DISCUSSION

 The Court's determination of a reasonable fee award follows the market value methodology approved recently by the Supreme Court in Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 106 S. Ct. 3088, 92 L. Ed. 2d 439 (1986) and Blum v. Stenson, 465 U.S. 886, 890, 79 L. Ed. 2d 891, 104 S. Ct. 1541, (1984). The determination of an appropriate award begins with the calculation of a "lodestar" -- the number of hours reasonably expended multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). And as Justice Powell noted -- "This calculation provides an objective basis by which to judge the value of a lawyer's services." Id. at 433. In certain circumstances, the court may then adjust the "lodestar" upward or downward through the use of multipliers if merited. Blum, 465 U.S. 886.

 A. Hours Reasonably Expended

 The starting point of a "lodestar" analysis is a determination of the number of hours reasonably expended by the attorneys for the prevailing parties in the litigation. Billing judgment is an important element of the fee request. Excessive or unproductive time must be subtracted from the calculation. Copeland v. Marshall, 205 U.S. App. D.C. 390, 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc). Where the petitioner has omitted unproductive time from its request, the application should identify the nature of the work and the number of hours involved. National Association of Concerned Veterans v. Secretary of Defense ("NACV"), 219 U.S. App. D.C. 94, 675 F.2d 1319, 1327-28 (D.C. Cir. 1982). Petitioning attorneys must document the number of hours claimed with sufficient detail to permit both the court and opposing counsel to conduct an informed appraisal of the merits of the application. Id. at 1323.

 In this action, plaintiffs have requested compensation for a total of 2,508.20 hours claimed by attorneys and a total of 644.45 hours claimed by paralegals. Their request includes demands for work performed on the following discrete segments of this litigation:

 
Category 1 -- Proceedings on the merits before the District Court
 
Category 2 -- Appellate proceedings and petition for en banc rehearing
 
Category 3 -- Settlement negotiations
 
Category 4 -- Monitoring of 1982 order and 1985 amended order
 
Category 5 -- Fee Petitions before this Court in ...

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