Conservation Congress v. United States Forest Service

          MEMORANDUM AND ORDER RE: MOTION FOR ATTORNEY'S FEES

          WILLIAM B. SHUBB, District Judge.

         Plaintiff Conservation Congress brought this action against the United States Forest Service ("Forest Service") and the United States Fish and Wildlife Service ("FWS"), alleging that defendants violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4347, the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544, the National Forest Management Act of 1976 ("NFMA"), 16 U.S.C. §§ 1600-1614, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, in approving the Harris Vegetation Management Project ("Harris Project") in the Shasta-Trinity National Forest. In October 2015, after plaintiff had initiated its lawsuit, the Forest Service voluntarily reinitiated ESA section 7 consultation on the potential impacts of the Harris Project on the gray wolf and prepared a BA Addendum finding the Harris Project "may affect, but is not likely to adversely affect" the gray wolf, and the FWS concurred. (Myers Decl. ¶ 18 (Docket No. 54).) Both parties agreed that plaintiff's gray wolf ESA claims were mooted by this voluntary action and, as a result, the court dismissed the two ESA claims as moot. (Pl.'s Reply to Mot. for Summ. J. at 2 (Docket No. 27); Defs.' Mot. for Summ. J. at 13 (Docket No. 41-1); Feb. 23, 2016 Order at 15-16 (Docket No. 49).) The court granted summary judgment in favor of defendants on the remaining claims. (Feb. 23, 2016 Order.)

         Plaintiff now argues it was successful on its ESA claims regarding the gray wolf under the catalyst theory and requests attorney's fees and costs pursuant to section 11(g)(4) of the ESA, 16 U.S.C. § 1540(g)(4). (Pl.'s Notice of Mot. & Mot. for Att'y's Fees ("Pl.'s Mot.") (Docket No. 51).)

         The ESA citizen suit provision 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). This "whenever appropriate" language "was meant to expand the class of parties eligible for fee awards from prevailing parties to partially prevailing parties-parties achieving some success, even if not major success.'" Ass'n of Cal. Water Agencies v. Evans, 386 F.3d 879, 885 (9th Cir. 2004) (quoting Ruckelhaus v. Sierra Club, 463 U.S. 680, 688 (1983) (interpreting the Clean Air Act's identical fee-shifting provision)). In statutes that provide for fee shifting "whenever appropriate, " Congress intended for a plaintiff to be able to recover attorney's fees if its suit furthered the goals of the statute or forced a defendant to abandon illegal conduct, even if there was no formal court order. See Ass'n of Cal. Water Agencies, 386 F.3d at 885.

         When a plaintiff does not win a final judgment on the merits, the two-part "catalyst theory" test determines whether that plaintiff nonetheless prevailed for the purpose of receiving attorney's fees. The district court must determine that (1) the lawsuit accomplished, at least in part, what it sought to accomplish and there was a "clear, causal relationship between the litigation brought and the practical outcome realized, '" and (2) "the benefit achieved was required by law and was not a gratuitous act of the defendant.'" Id. at 885-86 & n.3 (citation omitted).

         In this case, plaintiff achieved some success even though its ESA claims regarding the gray wolf were dismissed as moot. In its Second Amended Complaint ("SAC"), plaintiff alleged that the Forest Service failed to adequately analyze the potential for adverse effects of the Harris Project on the gray wolf and that its finding of "no effect" was arbitrary and capricious. (SAC ¶¶ 92-97 (Docket No. 10).) Plaintiff also claimed the FWS improperly concurred in the Forest Service's analysis. (Id. ¶¶ 104-09.) Plaintiff requested that the court declare that defendants violated the ESA, vacate and remand the BA and FWS Concurrence Letter, and enjoin timber harvest in the Harris Project until defendants complied with the ESA. (Id. ¶¶ 115-16.)

         In its voluntarily prepared BA Addendum, the Forest Service conducted a more detailed analysis of the potential effects on the gray wolf and changed its finding of "no effect" to "may affect, but is not likely to adversely affect." (Myers Decl. ¶ 18.) It, in essence, vacated its prior BA with respect to the gray wolf by preparing this supplemental analysis. Further, the Forest Service reinitiated consultation with the FWS and the FWS issued a new letter of concurrence. While plaintiff did not receive a judgment finding defendants had violated the ESA, plaintiff received most of the benefits it was seeking in its ESA claims as to the gray wolf. See Greater L.A. Council on Deafness v. Cmty. Television of S. Cal., 813 F.3d 217, 220 (9th Cir. 1987) (finding that "[p]laintiffs need only have received some of the benefits they sought in the suit" to be a prevailing party for the purpose of receiving attorney's fees under the Rehabilitation Act). Accordingly, the lawsuit accomplished, at least in part, what it sought to accomplish.

         The question remaining is whether there is a "clear, causal relationship between the litigation brought and the practical outcome realized.'" See Ass'n of Cal. Water Agencies, 386 F.3d at 886 (citation omitted) (emphasis omitted). The Ninth Circuit has found that the test "inquires whether the suit was at least a material factor or played a catalytic role in bringing about the desired result." Or. Envtl. Council v. Kunzman, 817 F.2d 484, 497 (9th Cir. 1987) (citation and internal quotation marks omitted).

         "[C]hronological events are important, although not a definitive factor, in determining whether or not a defendant can be reasonably inferred to have guided his actions in response to a plaintiff's lawsuit." Braafladt v. Bd. of Governors of Or. State Bar Ass'n, 778 F.2d 1442, 1444 (9th Cir. 1985) (affirming the district court's finding of no causal connection where an earlier suit had already raised similar constitutional questions and prompted the Oregon Supreme Court to act). "Clues to the provocative effects of the plaintiffs' legal efforts are often best gleaned from the chronology of events" given that "defendants, on the whole, are usually rather reluctant to concede that the litigation prompted them to mend their ways." Sablan v. Dep't of Fin. of the Commonwealth of the N. Mariana Islands, 856 F.2d 1317, 1326 (9th Cir. 1988) (citation omitted).

         "Whether a litigant has shown a sufficient causal relationship between the lawsuit and the practical outcome realized is a pragmatic factual inquiry for the district court.'" Sw. Ctr. for Biological Diversity, Cal. Native Plant Soc., 182 F.Supp.2d at 950 (citation omitted). "[C]redibility choices in the resolution of conflicting testimony are the district court's province as fact finder." Sablan, 865 F.2d at 1326 (citation omitted).

         For example, in Association of California Water Agencies, the Ninth Circuit affirmed the district court's award of attorney's fees to the plaintiffs even though the case was rendered moot when the government settled a separate but related case and voluntarily remanded the critical habitat designations plaintiffs were challenging under the ESA. Id. at 881-82. The Ninth Circuit concluded that it was reasonable for the district court to find that the plaintiffs' complaint and imminent summary judgment proceedings were a catalyst, especially considering that the plaintiffs' action was the first to challenge this approach to critical habitat designations. Id. at 886. The chronology established a causal relationship because the government began considering a voluntary remand after the district court set the filing date for cross-motions for summary judgment. The government decided to go forward with the voluntary remand only two weeks before the summary judgment deadline and after the district court found the plaintiffs' had standing and suggested that the evidence supported the plaintiffs' claim.

         Likewise, in Southwest Center for Biological Diversity, California Native Plant Society v. Carroll, 182 F.Supp.2d 944 (C.D. Cal. 2001), the court found that the evidence indicated that the plaintiffs' ESA claims regarding two endangered plant species "played an active role in the process that culminated in" the BA. Id. at 951. The government relied exclusively on a declaration that glossed over critical facts from the chronology and made no reference to the administrative record to argue that plaintiffs' suit had no impact on its decision to create a BA. Id . The court found that, despite the government's representations, it was clear from the full record that the government agreed to a date for the issuance of the BA, included an analysis of the two endangered plant species in its BA, and even adopted the environmental baselines that the plaintiffs had argued were appropriate only after several rounds of settlement discussions with the plaintiffs. Id . The court thus found that the plaintiffs' suit and subsequent settlement discussions were the catalyst and the plaintiffs were the prevailing party for the purposes of attorney's fees.

         In this case, plaintiff relies on the chronology of events to argue that defendants reinitiated informal consultation and issued a BA Addendum because of its pending lawsuit. (Pl.'s Mot. at 5-8; Pl.'s Reply at 6-8 (Docket No. 58).) Plaintiff filed its SAC, adding the ESA gray wolf claims, on May 5, 2015. This was, according to plaintiff, the first suit to challenge a Forest Service project in California for failing to fully analyze a project's effects on the gray wolf. On May 18, 2015, this court issued a Status (Pretrial Scheduling) Order setting August 17, 2015 as the deadline for plaintiff's summary judgment motion (although the parties later stipulated to extend the deadline to November 6, 2015). Plaintiff filed its motion to admit extra-record evidence regarding the ESA wolf claims on August 31, 2015. In October 2015, the Forest Service finalized its BA Addendum and the FWS concurred, effectively mooting plaintiff's ESA claims. Plaintiff argues that, as in Association of California Water Agencies, defendants voluntarily reinitiated consultation because the deadline for plaintiff's summary judgment motion was approaching and plaintiff's motion to admit extra-record evidence related to the gray wolf was pending.

         Defendants, however, offer a different explanation for this same sequence of events. David R. Myers, the Forest Supervisor for the Shasta-Trinity National Forest who is responsible for assuring compliance with section 7 of the ESA and for the decision authorizing the Harris Project, represents that plaintiff's lawsuit "did not influence the Forest Service's decision to prepare a BA Addendum and reinitiate informal consultation with the FWS on the Harris Project's anticipated effects on the gray wolf." (Myers Decl. ¶ 5.) Instead, he explains that the Forest Service ...