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American Lands Alliance v. Norton

November 30, 2007

AMERICAN LANDS ALLIANCE, ET AL. PLAINTIFFS,
v.
NORTON, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

Legal action was initially brought by the plaintiffs pursuant to the citizen suit provision of the Endangered Species Act ("ESA"), 16 U.S.C. § 1540(g)(1)(C) (2000), and the Administrative Procedures Act ("APA"), 5 U.S.C. § 702 (2000), against the Secretary of the Interior and the Director of the United States Fish and Wildlife Service ("FWS"). The parties have now reached a stipulated settlement agreement and are currently before the Court on the Plaintiffs' Motion for an Award of Attorney's Fees and Costs ("Pls.' Mot.") [D.E. # 60]. The plaintiffs request an award of fees and costs in the amount of $114,883.18 under section 1540(g)(4) of the ESA.*fn1 The amount requested is challenged by the defendants. For the reasons explained herein, the plaintiffs' motion is granted in part and denied in part, and fees and costs are awarded to the plaintiffs in the amount of $107,722.63.

I. Background

The plaintiffs, the American Lands Alliance, the Center for Native Ecosystems, the Forest Guardians, The Larch Company, and Sinapu, filed the four count Amended Complaint ("Am. Compl.") in this action alleging that the defendants violated both the ESA and the APA when it determined that "listing the Gunnison sage-grouse as 'endangered' under the ESA was 'warranted but precluded,'" Am. Compl. ¶ 1, and in "fail[ing] to carry out their mandatory duty to 'make prompt use' of their authority to issue an 'emergency rule' listing the sage grouse . . . as endangered." Id.

Under the ESA, the Secretary of the Interior and the FWS must "conserve species by 'listing' imperiled species as either 'threatened' or 'endangered' . . . ." Am. Compl. ¶ 28 (citing 16 U.S.C. §§ 1533, 1536, 1538 (2000)). The process of listing a species may begin either through the Secretary's own initiative, or through the submission of a public petition to the Secretary. Id. ¶ 29 (citing 16 U.S.C. § 1533(a), (b)(3)). In considering whether a species should be listed, the FWS must then, based on an analysis of five factors,*fn2 decide whether to list the species as either threatened or endangered. 16 U.S.C. § 1533(a)(1). In the listing process initiated by public petition, the FWS, "to the maximum extent practicable," must make a determination within a period of 90 days as to whether a listing "may be warranted." 16 U.S.C. § 1533(b)(3)(A). Within 12 months of receipt of the petition, the FWS must also make one of three determinations: (1) that the listing is "warranted," (2) that the listing is "not warranted," or (3) that the listing is "warranted, but . . . precluded" by other listing priorities. 16 U.S.C. § 1533(b)(3)(B). A "warranted but precluded" determination is treated as a "resubmitted" petition as of the date of the finding, which triggers the same requirements mandated for the processing of original public petitions. 16 U.S.C. § 1533(b)(3)(C)(i). The FWS may bypass the above process by complying with the requirements for issuing an emergency listing, which takes effect immediately upon its publication in the Federal Register. 16 U.S.C. § 1533(b)(7). The foregoing represents the basic framework for listing determinations issued by the FWS.

An alternative "internal 'track' for addressing species that may warrant listing" "not provided for in the ESA" and which brought about the filing of the present action, involves the FWS deferring a final listing of a species "by placing the species on what is called the 'candidate' list." Am. Compl. ¶ 32. Species placed on this list are "species for which [the] FWS has sufficient information to issue a proposed rule to list the species, but issuance of the proposed rule is precluded by other higher listing priorities." Id. This candidate list is published periodically in the Federal Register as the Candidate Notice of Review ("CNOR"), and is itself a final decision even though no individualized determination as to each species on the list has been made apart from assigning each species a priority listing number. Id. ¶ 33.

The events leading up to the dispute between the parties in this matter commenced in January, 2000, when the plaintiffs submitted a petition to the FWS proposing that the Gunnison sage grouse be listed as endangered. Id. ¶ 55. In February, 2000, the FWS responded by declaring the Gunnison sage grouse a "candidate" species, id. ¶ 58, and declining to issue an emergency rule listing the bird as threatened or endangered, id. ¶ 55. The FWS then relied on a 1996 Petition Management Guidance ("PMG") policy to refrain from issuing any rulings on the petition, since the species had been placed on the candidate list.*fn3 The FWS's 90-day window for issuing a preliminary finding that a listing may be warranted then elapsed, prompting the plaintiffs to file suit against the defendants on September 29, 2000. Am. Compl. ¶ 61. After the parties filed cross-motions for summary judgment, this Court invalidated the PMG policy and ordered the FWS to issue its 12-month finding on the January 2000 petition submitted by the plaintiffs. See Am. Lands Alliance v. Norton, 242 F. Supp. 2d 1, 19 (D.D.C. 2003). In requesting reconsideration of the Court's ruling, the defendants claimed that their December 28, 2000 "Notice of Designation of the Gunnison Sage Grouse as a Candidate Species" was the "functional equivalent" of a "warranted but precluded" finding, which satisfied both the 90-day and 12-month statutory mandates of the ESA. Am. Compl. ¶ 67. Ruling on the defendants' motion for reconsideration, this Court vacated its order that the FWS publish findings in the Federal Register in compliance with the ESA, but upheld its holding that the PMG policy was invalid. Am. Lands Alliance v. Norton, 360 F. Supp. 2d 1, 3 (D.D.C. 2003).

In filing this current action, the plaintiffs alleged that the FWS had continued to avoid its statutory duties under the ESA by relying on the PMG policy this Court had earlier found unlawful. Am. Compl. ¶ 70. Counts I and II of the amended complaint assert that the FWS's "warranted but precluded" determination for the Gunnison sage grouse did not satisfy the requirements of the ESA, and was "arbitrary, capricious, and contrary to law," and therefore in violation of the APA. Id. ¶ 73. In Counts III and IV, the plaintiffs contend that the FWS had violated the ESA and the APA by failing to issue an emergency rule listing the Gunnison sage grouse as endangered. Id. In an attempt to settle this matter, in October, 2004, the defendants offered "to submit for publication in the Federal Register a draft rule for the Gunnison sage grouse on or by September 1, 2005," and "[a] final listing rule on or by September 1, 2006."

Pls.' Mem., Exhibit ("Ex.") J (October 19, 2004 letter from Mauricia M.M. Baca, counsel for the Environmental and Natural Resources Division of the U.S. Department of Justice, to Amy Atwood, counsel for the plaintiffs). The plaintiffs responded to the offer on January 5, 2005, with a counteroffer proposing an emergency rule that would list the Gunnison sage grouse as either threatened or endangered as a condition of any settlement agreement. Pls.' Mem., Ex. M (January 5, 2005 letter from Amy Atwood to Lisa Russell, counsel for the U.S. Department of Justice) at 3-4. The plaintiffs explained that an emergency listing was warranted due to the possibly imminent threat of the West Nile Virus infecting the Gunnison sage grouse population. Id. The FWS declined the counteroffer, and both parties began preparing cross-motions for summary judgment. Pls.' Mem. at 9. These motions were submitted to the Court by April 1, 2005. Id. However, on May 11, 2005, before this Court could rule on the merits of the parties' motions, the FWS issued a new CNOR, which apparently prompted the plaintiffs to resume settlement discussions, id., and on November 14, 2005, a Stipulated Settlement Agreement was submitted to this Court. Pls.' Mem., Ex. P ("Settlement Agreement").

The terms of the Settlement Agreement are substantially similar to the terms of the defendants' first settlement offer. Specifically, the Settlement Agreement provided that the FWS would "submit for publication in the Federal Register a proposed listing determination as to the prudence of listing the Gunnison sage grouse [as either threatened or endangered] pursuant to Section 4(b)(6)(A) of the ESA, on or by March 31, 2006," and "a final listing determination on or by March 31, 2007." Settlement Agreement at 3. The terms of the agreement also stated that the plaintiffs were entitled to reasonable attorneys' fees for work performed in connection with Counts I and II of the amended complaint, however, no agreement was reached with regard to attorneys' fees for work performed as to Counts III and IV and the defendants dispute in the Settlement Agreement the plaintiffs' right to fees for work performed in connection with these emergency listing claims since these claims were not part of the settlement agreement. Id. at 4. The parties subsequently attempted to negotiate their attorneys' fees dispute, but were unable to reach an agreement as to work performed with respect to Counts III and IV of the amended complaint. The defendants then presented a final offer of settlement in the amount of $40,000 pursuant to Federal Rule of Procedure 68.*fn4 Pls.' Mem., Ex. X (Nov. 4, 2005 letter from James Maysonett, counsel for the U.S. Department of Justice, to David Bahr, counsel for the plaintiffs). The plaintiffs disputed the applicability of Rule 68 to citizen suits brought under the ESA, and declined to accept the offer. Pls.' Mem., Ex. W (Nov. 8, 2005 Letter from David Bahr to James Maysonett). Consequently, the plaintiffs filed their motion for attorneys' fees and costs, which is opposed by the defendants.

The parties' submissions address four areas of dispute. First, the defendants challenge any award of attorneys' fees for work performed subsequent to the defendants' settlement offer of October, 2004. Defs.' Mem. at 4-7. They contend that any compensation for work performed after the initial settlement offer would be unreasonable because the terms of the Settlement Agreement were substantially similar to the subsequent October, 2004 offer, thereby rendering the additional work unnecessary. Id. at 5-6. Second, the defendants contest any award of fees for work performed as to Counts III and IV of the amended complaint because the plaintiffs' attorneys should only be awarded fees for issues on which the plaintiffs prevailed, and the emergency listing claims were not part of the Settlement Agreement. Id. at 7-13. Third, the parties dispute the hourly rate at which each of the plaintiffs' two attorneys should be compensated. Id. at 13-15. Finally, the parties dispute the applicability of the defendants' Rule 68 offer of judgment. Id. at 15-20. The plaintiffs argue that making a Rule 68 offer applicable in this case would frustrate the policy goals underlying the citizen suit provision of the ESA, Pls.' Mem. at 28-32, while the defendants contend that Rule 68 offers of judgment are allowed in cases brought under the citizen suit provision of the ESA. Defs.' Mem. at 17. Each of these issues will be discussed in turn.

II. Standard of Review

The ESA provides that 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) (2000). The appropriateness of attorney fee awards in citizen suit cases brought under the ESA and other "appropriateness" fee-shifting statutes is measured by whether a party "achiev[ed] some success, even if not major success." Ruckelshaus v. Sierra Club, 463 U.S. 680, 688 (1983); see also Sierra Club v. EPA 322 F.3d 718, 727 (D.C. Cir. 2003) (awarding fees where "[p]etitioners unquestionably received some of the relief they sought"). Hours expended on unsuccessful claims are not compensable, to the extent that they are unrelated to the plaintiff's successful claims. Hensley v. Eckerheart, 461 U.S. 424, 435 (1983); Sierra Club v. EPA, 769 F.2d 796, 801 (D.C. Cir. 1985).

When an award of attorney's fees is appropriate, the proper measure of the fee awarded is "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley, 461 U.S. at 433. This figure, then, is the result of two determinations: (1) the reasonable number of hours expended, and (2) the reasonable hourly rate. Id. A reasonable hourly rate determination involves three factors: (1) "the attorneys' billing practices;" (2) "the attorneys' skill, experience, and reputation;" and (3) "the prevailing market rates in the relevant community." Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995). In Laffey v. Northwest Airlines, Inc., 746 F.2d 4 (D.C. Cir. 1984), the District of Columbia Circuit affirmed the District Court's reasonableness assessment for measuring reasonable hourly rates, now commonly known as the "Laffey Matrix." Id. at 30. The Laffey Matrix designates what are reasonable hourly rates for attorneys of varying experience, and is adjusted annually based on cost of living increases. Falica v. Advanced Tenant Servs., Inc., 384 F. Supp. 2d 75, 78 (D.D.C. 2005). As this Court previously reiterated, "[u]sing this matrix as a guide, the Court must then exercise its discretion to adjust this sum upward or downward to arrive at a final fee award that reflects 'the characteristics of the particular case (and counsel) for which the award is sought.'" Id. (quoting Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354, 361 (D.D.C. 1983)).Additionally, parties "may point to such evidence as an updated version of the Laffey matrix or the [United States] Attorney's Office matrix, or their own survey of prevailing market rates in the community."Covington, 57 F.3d at 1109.In ...


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