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California Native Plant Society v. United States Environmental Protection Agency

United States District Court, Ninth Circuit

December 19, 2013



PHYLLIS J. HAMILTON, District Judge.

Now before the court is the motion of plaintiffs California Native Plant Society, Defenders of Wildlife, and Butte Environmental Council for attorneys' fees and costs incurred as a result of a civil action brought against defendants United States Environmental Protection Agency, United States Fish and Wildlife Service and United States Army Corps of Engineers (the "Corps"). Having carefully reviewed the papers and considered the relevant legal authority, and good cause appearing, the court hereby GRANTS plaintiffs' motion for the reasons set forth below.


On June 7, 2006, plaintiffs filed an initial complaint against defendants for conduct concerning application approvals of residential developments that would affect vernal pools outside Sacramento (the "area"). Specifically, in June 2004, defendants consulted with landowners, developers, and local agencies to create a conceptual strategy for development in the area. The conceptual strategy outlined development principles and specified that defendants would "use the strategy to aid in the review of proposed development" applications - even as defendants would continue to evaluate permit applications on a case-by-case basis. Over the next three years, defendants awarded a number of development permits after conducting Environmental Assessments (EAs) with Findings of No Significant Impacts (FONSIs).

Plaintiffs' complaint alleged that (1) defendants violated the National Environmental Protection Act (NEPA) by failing to subject the conceptual strategy to NEPA analysis; (2) defendants failed to follow proper NEPA procedures in its EAs; (3) defendants violated the Endangered Species Act (ESA) by creating the conceptual strategy without following ESA's consultation requirements; and (4) defendants violated the ESA by issuing permits without using the best science available to consider impacts on endangered species.

On November 3, 2006, the court denied plaintiffs' motion for a temporary restraining order (TRO).[1] The court evaluated all four claims. As for the first and third claims (the direct challenges to the conceptual strategy), the court found plaintiffs had failed to show the requisite likelihood of success on the merits because the conceptual strategy was not a final agency action, and thus not reviewable under the Administrative Procedures Act (APA). On the fourth claim, the court found plaintiffs had failed to comply with the ESA's notice requirements and failed to properly plead the claim. Finally, as for the second claim, the court found that "based on the materials before the Court, Plaintiffs have failed to raise a serious question that the Federal Defendants failed to comply with NEPA's procedural requirements." Doc. no. 73 at 9.

Plaintiffs subsequently filed a motion for a preliminary injunction (PI), and on July 10, 2007, the court issued an order granting that motion. The court found that plaintiffs still failed to show that they were likely to succeed on their first claim, and still failed to raise serious questions on their third and fourth claims.

With respect to the second claim, however, based on a supplemented record, the court found that (1) plaintiffs "have raised a serious question as to whether the Corps took the requisite hard look' at the cumulative impacts of the proposed development projects, " and that (2) "the EAs do not reflect the requisite hard look' at potential alternative preserve configurations, nor do they contain adequate discussion...." Doc. no. 128 at 26-7. The court then weighed the balance of hardships and found "it is beyond dispute that vernal pool habitat will be permanently destroyed in the development process" and "[t]he risk of such permanent destruction absent the benefit of an adequate cumulative impacts or alternatives analysis under NEPA tips the balance of the hardships in Plaintiffs' favor." Id. at 34. The court accordingly ordered a suspension of further permitting and groundbreaking activities until resolution of the case on the merits.

After the PI was issued, the parties engaged in jurisdictional discovery on the first claim and the government filed administrative records. In May 2008, the Corps announced that it would prepare an Environmental Impact Statement (EIS) to address the cumulative impacts of the projects it had formerly approved individually with EAs. After this announcement, the parties jointly moved for a stay of the litigation, which the court granted in December 2008. The stay lasted until September 10, 2011, while the government prepared the EIS. Ultimately, under the EIS and tiered supplemental EAs for the specific permit applications, direct vernal pool impacts fell 2.6 acres - from 48.95 acres at the beginning of the litigation to 46.35 acres at the end of the litigation. After the stay expired, the parties engaged in settlement talks before finally entering a non-enforceable joint stipulation to dismiss the case in March 2013.

In June 2013, plaintiffs filed this motion for award of attorneys' fees and costs. They request $721, 008.56 in attorneys' fees and $3, 523.72 in costs under the Equal Access to Justice Act (EAJA).


A. Legal Standard

The EAJA provides that "a court shall award [fees] to a prevailing party other than the United States... incurred by that party in any civil action... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C § 2412(d)(1)(A). Fees are thus awardable if (1) plaintiffs are a prevailing party, (2) the government was not substantially justified and there are no special circumstances that would make an award unjust, and (3) the fees are reasonable.

To qualify as a prevailing party, a plaintiff must achieve "a material alteration in the legal relationship of the parties" that is "judicially sanctioned." Buckhannon Bd. & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources , 532 U.S. 598, 605 (2001). Material alteration occurs when a plaintiff wins sought-after relief that benefits the plaintiff and alters the defendant's behavior. Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt. , 589 F.3d 1027, 1030 (9th Cir. 2009); Fischer v. SJB-P.D., Inc. , 214 F.3d 115 (9th Cir. 2000). A preliminary injunction order suffices to constitute judicial sanction. Watson v. County of Riverside , 300 F.3d 1092, 1093 (9th Cir. 2002).

A court determines whether the position of the United States was substantially justified by examining both the government's litigation position and underlying agency decision. Andrew v. Bowen , 837 F.2d 875, 880 (9th Cir. 1988). Substantial justification requires "a reasonable basis in law and fact." Pierce v. Underwood , 487 U.S. 552, 565 (1988). The government bears the burden of showing substantial justification. ORNC v. Marsh, 52 F.2d 1485, 1492 (9th Cir. 1995).

Special circumstances exist when equitable factors dictate that fees should not be shifted - for instance, when the United States advances novel arguments in good faith. Abela v. Gustafson , 888 F.2d 1258, 1266 (9th Cir. 1989).

Under the EAJA, the court has discretion to determine what fees are reasonable to award. Commissioner, INS v. Jean , 496 U.S. 154, 160-61 (1990). The starting point for determining reasonable fees is by multiplying a reasonable hourly rate by the reasonable hours of work expended on the case. Hensley v. Eckerhart , 461 U.S. 424, 433 (1983). Further, the court should consider "the relationship between the amount of fees awarded and the results obtained." Jean , 496 U.S. at 163 n. 10. This requires two determinations: (1) whether the claims that plaintiff prevailed on and failed to prevail on were related, and (2) whether the plaintiff achieved "excellent results, " or merely "partial or limited success." Hensley , 461 U.S. at 434-36.

The default fee rate for attorneys under EAJA is $125 per hour. 28 U.S.C. § 2412(d)(2)(A). This rate applies "unless the court determines that an increase in cost of living or a special factor... justifies a higher rate. Id . An attorney's specialization in environmental law can be a special factor. Love v. Reilly , 924 F.2d 1492, 1496 (9th Cir. 1991).

B. Fee Award Warranted Under EAJA

Plaintiffs have demonstrated that they are entitled to an award of reasonable fees because they are the prevailing party and the government has failed to show its position was substantially ...

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