Cascadia Wildlands v. Bureau of Land Management

987 F. Supp. 2d 1085, 2013 WL 6576125, 2013 U.S. Dist. LEXIS 174553
CourtDistrict Court, D. Oregon
DecidedDecember 12, 2013
DocketCase No. 6:12-cv-00095-AA
StatusPublished
Cited by6 cases

This text of 987 F. Supp. 2d 1085 (Cascadia Wildlands v. Bureau of Land Management) is published on Counsel Stack Legal Research, covering District Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cascadia Wildlands v. Bureau of Land Management, 987 F. Supp. 2d 1085, 2013 WL 6576125, 2013 U.S. Dist. LEXIS 174553 (D. Or. 2013).

Opinion

OPINION AND ORDER

AIKEN, Chief Judge:

Plaintiffs Cascadia Wildlands, Oregon Wild, and the Benton Forest Coalition move for attorney fees and costs pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, after prevailing on one of their claims against defendant the Bureau of Land Management (“BLM”). The BLM opposes plaintiffs’ motion on the basis that its position was [1089]*1089substantially justified; alternatively, the BLM asserts that plaintiffs’ request for fees is unreasonable and not supported by the relief obtained. For the reasons set forth below, plaintiffs’ motion is granted in part, in that attorney fees are awarded in the reduced sum of $75,035, and costs are awarded in full in the amount of $1,042.05.

BACKGROUND

The history of this matter is well known to the parties. It will therefore only be repeated to the extent necessary to-provide context for the present motion.

In relevant part, The Alsea River Watershed Restoration project authorized commercial thinning on public lands, resulting in the North Fork Overlook (“Overlook Project”) timber sale. The Overlook Project consisted of four forest stands, designated as 17A, 17B, 17C, and 19A. On January 18, 2011, after exhausting their administrative remedies, plaintiffs filed a complaint in this Court, alleging that the 2010 environmental' assessment (“EA”), approving the Overlook Project and confirming that it complied with the applicable land-use plans, violated the Federal Land Policy and Management Act (“FLPMA”) and the National Environmental Policy Act (“NEPA”) because it failed to analyze whether the proposed thinning would harm the red tree vole in stands 17A and 17B.

On August 10, 2012, plaintiffs moved for summary judgment. On August 30, 2012, defendant-intervenor Freres Lumber Company (“Freres”) filed a cross-motion for summary judgment. On August 31, 2012, the BLM filed a cross-motion for summary judgment. On December 21, 2012, this Court granted summary judgment in favor of the BLM and Freres on two of plaintiff’s claims; however, the Court ruled in favor of plaintiffs on their final claim, thereby enjoining the BLM from going forward with the Overlook Project until a supplemental EA was conducted in light of significant new information. See generally Cascadia Wildlands v. Bureau of Land Mgmt., 2012 WL 6738275 (D.Or. Dec. 21, 2012).

On September 23, 2013, after the parties engaged in further settlement negotiations and ultimately reached an agreement providing for buffers around certain known vole sites, plaintiffs filed the present motion seeking $99,918.451 for legal work performed by Peter Frost, Nicholas Cady, and John Mellgren.

STANDARD

A party that prevails against the United States government in a civil action is entitled, in certain circumstances, to an award of attorney fees, court costs, and other expenses under the EAJA. See 28 U.S.C. § 2412; see also Wilderness Soc’y v. Babbitt, 5 F.3d 383, 385 (9th Cir.1993). In pertinent part, the EAJA provides:

[ejxcept as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially [1090]*1090justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A).

Thus, the EAJA establishes a two-part test for determining whether an award of attorney fees is appropriate. The court must first ascertain if the plaintiff was a prevailing party; if so, the court must then evaluate whether the government was substantially justified in its position and that no other special circumstances exist for making an award of attorney fees unjust. See Thomas v. Peterson, 841 F.2d 332, 335 (9th Cir.1988); see also Flores v. Shalala, 49 F.3d 562, 567 (9th Cir.1995).

DISCUSSION

It is undisputed that plaintiffs are prevailing parties and therefore satisfy the first requirement for an award of attorney fees under 28 U.S.C. § 2412(d)(1)(A). See United States v. Real Prop. Known as 22249 Dolorosa St., Woodland Hills, Cal., 190 F.3d 977, 981 (9th Cir.1999); see also Pls.’ Mem. in Supp. of Mot. Att’y Fees 2; Def.’s Resp. to Mot. Att’y Fees 1. It is also undisputed that no special circumstances are present in this case. See Pls.’ Mem. in Supp. of Mot. Att’y Fees 3-4; Def.’s Resp. to Mot. Att’y Fees 1-2. The BLM argues, however, that plaintiffs’ request for fees should be denied because its position was substantially justified. In the alternative, the BLM objects to the requested hourly rate and amount of hours expended as being unreasonable.

I. Substantial Justification

In order to demonstrate substantial justification, the government bears the burden of demonstrating that its conduct had “a reasonable basis in both law and fact.” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). As such, the government is substantially justified if its position meets “the traditional reasonableness standard—that is justified in substance or in the main, or to a degree that could satisfy a reasonable person.” Id. (internal quotations omitted). The government’s failure to prevail in the underlying litigation is therefore not dis-positive. Id. at 569, 108 S.Ct. 2541 (“the Government could take a position ... that is substantially justified, yet lose”).

Here, plaintiffs challenged the BLM’s 2010 EA in three respects. First, plaintiffs asserted that the BLM violated the FLMPA by failing to conduct a predisturbance survey for red tree vole sites in stands 17A and 17B prior to authorizing the Overlook Project. See Pls.’ Mem. in Supp. of Mot. Sum. J. 10-12. Plaintiffs also argued that the BLM violated NEPA by neglecting to take the requisite hard look at the project’s effects on the vole and by ignoring new information that emerged after the 2010 EA. Id. at 13-17. This Court found that the BLM did not act arbitrarily or capriciously concerning the first two issues; however, the United States Fish and Wildlife Service’s (“FWS”) “12-Month finding on a Petition to List a Distinct Population Segment of the Red Tree Vole as Endangered or Threatened” (“Finding”) constituted significant new information under NEPA. See Cascadia, 2012 WL 6738275 at *3-11.

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987 F. Supp. 2d 1085, 2013 WL 6576125, 2013 U.S. Dist. LEXIS 174553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cascadia-wildlands-v-bureau-of-land-management-ord-2013.