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Conservation Force v. Salazar

United States District Court, District of Columbia

January 7, 2013

CONSERVATION FORCE, et al., Plaintiffs,
Kenneth SALAZAR, in his official capacity as Secretary of the United States Department of the Interior, et al., Defendants.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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John J. Jackson, III, Conservation Force, Metairie, LA, for Plaintiffs.

Hao-Chin Hubert Yang, U.S. Department of Justice, Washington, DC, for Defendants.


JOHN D. BATES, District Judge.

Plaintiffs, individuals and organizations that support sustainable hunting of the Canadian wood bison, seek attorney fees for their work in this case. In the underlying action, plaintiffs sued the Secretary of the Department of the Interior and the Fish and Wildlife Service (together " FWS" ), challenging FWS's conduct surrounding the wood bison's " endangered" classification and FWS's denial of plaintiffs' permit applications. The Court granted summary judgment to defendants on three claims, and granted summary judgment to plaintiffs on the remaining claim. Plaintiffs now seek $258,681.10 in fees and costs for their work on the merits and in the subsequent fee litigation. Defendants argue that a substantially smaller award is justified. For the reasons set forth below, the Court will award $39,740.40.


I. Factual Background

Counts I and II of plaintiffs' complaint challenged FWS's failure to conduct a mandatory 12-month finding and five-year review of the wood bison's endangered status under the Endangered Species Act of 1973 (" ESA" ), 16 U.S.C. § 1531 et seq. Count III alleged that FWS acted arbitrarily and capriciously in denying four individual plaintiffs' applications to import wood bison hunting trophies. Finally, Count IV alleged that FWS violated " a bundle of duties" under the ESA.

Because FWS completed a combined 12-month and five-year review before the Court issued a decision, the Court found the first two claims moot, and granted summary judgment to defendants. See Conservation Force v. Salazar, 851 F.Supp.2d 39, 45 (D.D.C.2012) (" Conservation Force II " ). The Court also rejected plaintiffs' Count IV arguments on the merits. See id. at 56. The Court, however, agreed with plaintiffs on their " primary claim," id. at 45, that denying the individual permit applications was arbitrary and capricious because FWS failed to articulate a satisfactory explanation for the denial, and hence remanded the case to the agency for further consideration of the permit applications. See id. at 54. Defendants filed a motion to vacate the remand instruction, which the Court denied on January 2, 2013. See Memorandum Opinion & Order [Docket Entry 63], 915 F.Supp.2d 1, 2013 WL 21734 (Jan. 2, 2013).

II. Statutory Background

Two statutes govern attorney fees in this case. The ESA allows a court to " 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). But this fee provision applies only to a " suit brought pursuant to paragraph (1) of this subsection." Id. Paragraph (1), in turn, allows citizen suits in narrow circumstances including " to enjoin any person ... who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof," 16 U.S.C. § 1540(g)(1)(A), and " 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

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Secretary," 16 U.S.C. § 1540(g)(1)(C). See also Bennett v. Spear, 520 U.S. 154, 171-74, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).

Where no specific fee provision applies, the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A), directs a court to " award to a prevailing party other than the United States fees and other expenses" in any non-tort civil action " including proceedings for judicial review of agency action, brought ... against the United States ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." Id.


I. Fees for Counts I and II Under the Catalyst Theory

Plaintiffs argue that they are entitled to attorney fees for work on Counts I and II of the complaint, even though the Court granted summary judgments to defendants on those two counts, " because Plaintiffs were the catalyst for Defendants' actions." Pls.' Am. Mot. for Att'y Fees & Costs [Docket Entry 52] at 7 (June 18, 2012) (" Pls.' Mot." ). Counts I and II— which challenged the Secretary's failure to make a required 12-month finding and to conduct a five-year review— were actions against the Secretary for failing to perform a non-discretionary act under section 1533. See 16 U.S.C. § 1533(b)(3)(B) ( " Within 12 months after receiving a petition ... the Secretary shall make one of the following findings...." ); 16 U.S.C. § 1533(c)(2) (" The Secretary shall ... conduct, at least once every five years, a review of all species included in [the endangered or threatened species] list...." ). Accordingly, these claims arose under the citizen suit provision of the ESA and are governed by ESA's fee provision. See 16 U.S.C. § 1540(g)(1)(C). Unlike statutes that authorize fee awards only to prevailing parties, ESA's fee provision— which allows fees " whenever ... appropriate," 16 U.S.C. § 1540(g)(4)— permits the Court to award fees under a catalyst theory. See Sierra Club v. EPA, 322 F.3d 718, 726 (D.C.Cir.2003) (holding that " the ‘ whenever ... appropriate’ standard authorizes recovery under a catalyst theory" (omission in original)).

To establish an entitlement to fees under a catalyst theory, a plaintiff must satisfy the " so-called three thresholds test," by showing " that the defendant provided some of the benefit sought by the lawsuit," that the claim " was at least colorable, not frivolous, unreasonable, or groundless," and that the suit " was a substantial or significant cause of defendant's action providing relief." Id. at 726-27 (internal quotation marks omitted).

Defendants never dispute that the first two requirements are satisfied, and with good reason. As to the first, Counts I and II asked the Court to " compel [ ]" defendants " to reach a conclusion regarding the de-listing of the wood bison" by " issu[ing] a 12-month finding," Compl. Claim I ¶¶ 2, 10 [Docket Entry 1] (June 23, 2010), and " to undertake the five-year review." Compl. Claim II ¶ 4. On January 31, 2011, while the suit was pending, defendants completed the 12-month finding and five-year review. Accordingly, defendants provided some of the benefits sought by the lawsuit. The second factor is also satisfied because the claim was at least colorable— indeed, it was undisputed that neither action was conducted within the prescribed statutory time limit. See Conservation Force II, 851 F.Supp.2d at 45.

The third requirement, that the suit was a substantial cause of defendant's actions, presents a closer question. To establish causation, " the claimant must show that it is more probable than not that

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the government would not have performed the desired act absent the lawsuit." Pub. Citizen Health Research Grp. v. Young, 909 F.2d 546, 550 (D.C.Cir.1990). More specifically, the Court must find that, absent plaintiffs' filing this particular lawsuit, the agency would not have completed the 12-month finding and the five-year review by January 31, 2011. See id. at 549-50. In other words, even if the agency would have eventually completed the finding and review, plaintiffs are entitled to fees if this lawsuit was a substantial cause of the agency completing the actions by the date that it did. Additionally, to " make this causation showing, plaintiff ha[s] to satisfy the trial court that the suit achieved results by threat of victory, not by dint of nuisance and threat of expense." Sierra Club, 322 F.3d at 726 (internal quotation marks omitted).

Plaintiffs filed this suit on June 23, 2010, and the agency took the desired actions on January 31, 2011. At first glance, this chronology supports an inference of causation. The D.C. Circuit, however, has " caution[ed] against the post hoc ergo propter hoc fallacy." Pub. Citizen, 909 F.2d at 551. That caution is well taken in this case: the full timeline persuades the Court that this suit in no way accelerated the agency's actions.

The relevant events began in 2009. On February 3, 2009, FWS announced that it was initiating a status review of the wood bison, a condition precedent to issuing either a 12-month finding or a five-year review, see 16 U.S.C. § 1533(b)(3)(A), (c)(2). See 74 Fed.Reg. 5908, 5910 (Feb. 3, 2009). In March 2009, the same group of plaintiffs filed a predecessor lawsuit, Conservation Force v. Salazar, 715 F.Supp.2d 99 (D.D.C.2010) ( " Conservation Force I " ), challenging the Secretary's failure to issue the 12-month finding. The Court ultimately dismissed the claim because plaintiffs had failed to comply with ESA's notice requirement before filing suit. See id. at 104. During that litigation, FWS submitted a declaration stating that it had initiated a status review and requested information from interested parties, and that a certain FWS branch " is now responsible for processing" the petition for reclassifying the wood bison " as part of [its] Fiscal Year (FY) 2010 work plan." Frazer Decl. 3, Conservation Force I, 715 F.Supp.2d 99 (2009) (No. 09-496), ECF No. 19-3. It further stated that " the Service anticipates that it will take approximately nine months to complete the status review and prepare a 12-month finding." Id. Accordingly, the declaration stated that the Service " can complete work on the status review and the 12-month finding for the wood bison and submit the 12-month finding to the Federal Register by September 15, 2010." Id. at 6.

By the time plaintiffs filed this suit on June 23, 2010, the agency was just a few months short of its anticipated completion date. And although the agency ended up missing its own deadline by several months, there is no evidence that it hurried the review because of this suit. Early in this litigation, defendants represented to the Court that the process for completing the 12-month finding and the five-year review was underway, that a particular step of the process was likely to be completed in " early November," and that the entire process would be completed by January 31, 2011. See Frazer Decl. [Docket Entry 25-2] at 6 (Nov. 2, 2010). Consistent with these representations, on January 31, 2011, the agency completed the 12-month finding and the five-year review. The agency's actions occurred 11 days after defendants submitted their cross-motion for summary judgment and opposition to plaintiffs' motion. Briefing was set to conclude on March 3, 2011. See Order

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[Docket Entry 32] (Dec. 10, 2010). Due to further extensions, the briefing concluded in May 2011, and the Court issued its Memorandum Opinion on March 30, 2012, fourteen months after the agency completed ...

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