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3 UNITED STATES DISTRICT COURT 4 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 5 WILD FISH CONSERVANCY, CASE NO. 21-cv-169 6 Plaintiff, ORDER GRANTING, IN PART, WILD 7 FISH CONSERVANCY’S MOTION v. FOR AN AWARD OF LITIGATION 8 EXPENSES WASHINGTON DEPARTMENT OF 9 FISH & WILDLIFE; KELLY SUSEWIND, in his official capacity as the 10 Director of the Washington Department of Fish & Wildlife; BARBARA BAKER, in 11 her official capacity as Chair of the Washington Fish & Wildlife Commission; 12 MOLLY LINVILLE, in her official capacity as Vice Chair of the Washington 13 Fish & Wildlife Commission; JAMES ANDERSON, in his official capacity as a 14 member of the Washington Fish & Wildlife Commission; LORNA SMITH, in 15 her official capacity as a member of the Washington Fish & Wildlife Commission; 16 JOHN LEHMKUHL, in his official capacity as a member of the Washington 17 Fish & Wildlife Commission; TIM RAGEN, in his official capacity as a 18 member of the Washington Fish & Wildlife Commission; MELANIE 19 ROWLAND, in her official capacity as a member of the Washington Fish & 20 Wildlife Commission; and KIM THORNBURN, in her official capacity as 21 a member of the Washington Fish & Wildlife Commission, 22 Defendants. 23 1 1. INTRODUCTION 2 Before the Court is Plaintiff Wild Fish Conservancy’s (“Wild Fish”) Motion 3 For An Award of Litigation Expenses under Rule 54(d) and section 11(g) of the 4 Endangered Species Act of 1973 (“ESA”), 16 U.S.C. § 1540(g). Dkt. No. 83 at 1. Wild 5 Fish seeks $456,721.45 in attorneys’ fees and costs. See Dkt. Nos. 92 at 9; 93 at 4. 6 For the reasons explained below, the Court GRANTS Wild Fish’s motion in part. 7 2. BACKGROUND 8 Wild Fish sued Defendants Washington Department of Fish and Wildlife 9 (WDFW), its Director, and its Commissioners (collectively, “WDFW Officials”) in 10 2021, alleging 14 hatchery programs, including WDFW’s new steelhead hatchery 11 program on the South Fork of Skykomish River (“Skykomish Program”), violated 12 section 9 of the ESA for “take” of ESA-listed species. Dkt. No. 1. 13 There have been many filings in this matter, but the Court focuses on the 14 relevant filings for the purpose of this motion. On March 5, 2021, the Court entered 15 a Stipulation and Order (“Stipulated Order”). Dkt. No. 7. The Stipulated Order 16 prohibited WDFW from (1) collecting broodstock for the program from Washington 17 waterbodies, and (2) releasing hatchery fish from the program into any waterbody 18 where fish could migrate to the Puget Sound and thereby impact Puget Sound 19 salmonids. Dkt. No. 7 at 3. 20 On September 9, 2021, the Washington State Department of Fish and 21 Wildlife and the named Commissioners moved to dismiss, and the Honorable Robert 22 S. Lasnik granted the motion on February 7, 2023, as well as Wild Fish’s motion to 23 1 file a first amended and supplemental complaint. Dkt. Nos. 16, 18, 41. On February 2 22, 2023, Wild Fish filed its First Amended and Supplemental Complaint (“First
3 Amended Complaint”). Dkt. No. 44. On April 12, 2023, Wild Fish filed its Second 4 Amended and Supplemental Complaint which removed WDFW as a Defendant. 5 Dkt. No. 49. 6 On August 3, 2023, the Court approved a Consent Decree between the 7 parties. Dkt. No. 81. The Consent Decree requires WDFW Officials to facilitate and 8 fund joint WDFW/Wild Fish snorkel surveys for four years and to create and
9 maintain a new compliance review and public disclosure program. Id. 10 Wild Fish now seeks its fees and costs for its work on this matter. 11 3. DISCUSSION 12 3.1 Legal standard. 13 Under the ESA, the Court “may award costs of litigation (including 14 reasonable attorney and expert witness fees) to any party whenever the court 15 determines such award is appropriate.” 16 U.S.C. § 1540(g)(4). Whether an award of 16 attorney’s fees is “appropriate” is measured by whether a party “achiev[ed] some 17 success, even if not major success.” Ruckelshaus v. Sierra Club, 463 U.S. 680, 688 18 (1983). This standard is intended to “expand the class of parties eligible for fee 19 awards” and “to permit awards of fees to all partially prevailing parties.” Id. at 691. 20 The Ninth Circuit has held that courts should “apply to the ESA the civil rights 21 standard for awarding fees to prevailing defendants.” Marbled Murrelet v. Babbitt, 22 182 F.3d 1091, 1095 (9th Cir. 1999). 23 1 3.2 Wild Fish is the prevailing party. “Litigation that results in an enforceable settlement agreement can confer 2 ‘prevailing party’ status on a plaintiff.” La Asociacion de Trabajadores de Lake 3 Forest v. City of Lake Forest, 624 F.3d 1083, 1089 (9th Cir. 2010). “In determining 4 whether a settlement agreement confers prevailing party status on a plaintiff, [the 5 Ninth Circuit has] used a three-part test, looking at: ‘(1) judicial enforcement; (2) 6 material alteration of the legal relationship between the parties; and (3) actual 7 relief on the merits of [the plaintiff’s] claims.”’ Id.1 8 Here, the parties reached two agreements that were then made enforceable 9 by court order. The first, the Stipulated Order, provides some of the preliminary 10 relief sought in the initial complaint. Dkt. No. 7. Namely, it prevented WDFW from 11 taking certain actions until the National Marine Fisheries Service and the U.S. Fish 12 and Wildlife Service each provide exemptions for liability under section 9 of the 13 ESA. Id. at 3. The second, the Consent Decree, created enforceable obligations for 14 WDFW to further the goals of the ESA. Dkt. No. 81. Specifically, under the Consent 15 Decree, WDFW must conduct multiple systemic snorkel surveys in partnership with 16 Wild Fish, develop and implement a Compliance Review and Disclosure Program 17 18
19 1 Because the Court entered a Stipulated Order and Consent Decree, it need not evaluate Wild Fish’s motion for fees and costs under the “catalyst theory” which 20 allows such an award only when there is no judicially sanctioned change in the legal relationship of the parties. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t 21 of Health & Human Res., 532 U.S. 598, 600 (2001) (“[E]nforceable judgments on the merits and court-ordered consent decrees created the material alteration of the legal 22 relationship of the parties necessary to permit a fee award, whereas the catalyst theory would allow awards where there was no judicially sanctioned change in that 23 relationship[.]”). The parties agree. Dkt. Nos. 83 at 8-9; 90 at 2. 1 within six months, and submit Hatchery and Genetic Management Plans (HGMPs) 2 for all remaining hatchery programs listed in Appendix A of the decree within a set
3 timeframe. Id. at 6–8. 4 Wild Fish is a prevailing party per the Ninth Circuit’s three-part test: 5 First, the terms of the Stipulated Order and Consent Decree are judicially 6 enforceable. See Saint John’s Organic Farm v. Gem Cnty. Mosquito Abatement Dist., 7 574 F.3d 1054, 1059 (9th Cir. 2009) (“Binding settlement agreements over which the 8 district court retains jurisdiction to enforce are judicially enforceable.”).
9 Second, the Stipulated Order and the Consent Decree effected a material 10 alteration in the legal relationship between the parties. See Buckhannon Bd. and 11 Care Home, Inc., 532 U.S. at 600 (“[E]nforceable judgments on the merits and court- 12 ordered consent decrees create[] the material alteration of the legal relationship of 13 the parties necessary to permit [an award of attorney’s .”). “A settlement 14 agreement meaningfully alters the legal relationship beftewese]en parties if it allows 15 one party to require the other party ‘to do something it otherwise would not be 16 required to do.”’ Jankey v. Poop Deck, 537 F.3d 1122, 1130 (9th Cir. 2008) (internal 17 citation omitted). 18 As described above, under the Stipulated Order, WDFW agreed to forgo 19 certain actions, and under the Consent Decree, WDFW agreed to take certain 20 actions. Dkt. Nos. 7, 81. Both documents allow for court enforcement and create 21 obligations that WDFW must meet. See id. Even if these agreements required
22 WDFW to do some of what it was already doing or planning to do, its behavior is 23 1 now legally required rather than voluntary. See Saint John’s Organic Farm, 574 2 F.3d at 1059.
3 Third, Wild Fish achieved actual relief on the merits of its claims. La 4 Asociacion, 624 F.3d at 1089. WDFW argues that neither the Stipulated Order nor 5 the Consent Decree awarded Wild Fish the relief it sought in this action, and 6 therefore it is not a prevailing party. Dkt. No. 90 at 3-8. But “a plaintiff must [only] 7 receive some actual relief that serves the goals of the claim in his or her complaint . 8 . . the relief achieved need not be of precisely the same character as the relief sought
9 in the complaint, but it must require defendants to do something they otherwise 10 would not have been required to do.” Saint John’s Organic Farm, 574 F.3d at 1059; 11 see also La Asociacion, 624 F.3d at 1090 (“While some relief is required, ‘an 12 extremely small amount of relief is sufficient to confer prevailing party status.”’) 13 (internal citation omitted). 14 In its initial complaint, Wild Fish asked the Court to “[e]njoin WDFW from 15 implementing . . . the South Fork Skykomish River summer steelhead hatchery
16 program, unless and until compliance with the ESA is achieved.” Dkt. No. 1 at 19. 17 Wild Fish achieved some of its requested relief through the Stipulated Order. See 18 Dkt. No. 7. For example, WDFW agreed not to “[c]ollect, trap, or otherwise remove 19 steelhead from the South Fork Skykomish River” or “[r]elease any steelhead that 20 were produced through the Hatchery Program into the South Fork Skykomish 21 River.” Id. at 3.
22 In its amended complaints, Wild Fish asked the Court to “[i]ssue a 23 mandatory injunction requiring WDFW officials to comply with the ESA.” Dkt. Nos. 1 49 at 24, 44 at 25. The relief in the Consent Decree supports this goal. See Dkt. No. 2 81. For example, the Consent Decree obligates WDFW to undertake multiple
3 systemic snorkel surveys per year with Wild Fish and to create a Compliance 4 Review and Disclosure Program that outlines the “applicable authorization, permit, 5 and/or approval requirements under Section 9 of the ESA” for “each salmon and/or 6 steelhead hatchery program that WDFW and/or the State of Washington owns 7 and/or operates in Puget Sound.” Id. at 6–7. 8 In sum, Wild Fish is the prevailing party here.
9 3.3 The Eleventh Amendment does not bar an award of litigation expenses. 10 The Court turns to WDFW’s argument that Wild Fish’s request for litigation 11 expenses and fees should be denied under the Eleventh Amendment. 12 The ESA provides that “any person may commence a civil suit . . . to enjoin 13 any person, including . . . any . . . governmental instrumentality or agency (to the 14 extent permitted by the eleventh amendment to the Constitution), who is alleged to 15 be in violation of any provision of” the statute. 16 U.S.C.A. § 1540(g)(1)(A). The 16 Eleventh Amendment states that the power of the federal judiciary “shall not be 17 construed to extend to any suit in law or equity, commenced or prosecuted against 18 one of the United States by Citizens of another State, or by Citizens or Subjects of 19 any Foreign State.” U.S. Const. amend. XI. The Supreme Court has explained that 20 this provision “stand[s]” for the “presupposition” that “each State is a sovereign 21 entity in our federal system” and “that ‘it is inherent in the nature of sovereignty 22 not to be amenable to the suit of an individual without its consent.”’ Seminole Tribe 23 1 of Fla. v. Florida, 517 U.S. 44, 54 (1996) (quoting Hans v. Louisiana, 134 U.S. 1, 13 2 (1890)) (alterations omitted). “[T]he Eleventh Amendment generally prevents a
3 state and state government actors from being sued in federal court without the 4 state’s consent.” Koala v. Khosla, 931 F.3d 887, 894 (9th Cir. 2019) (citation 5 omitted). 6 But there are exceptions to Eleventh Amendment immunity. “[U]nder the 7 principle established in Ex parte Young . . . private individuals may sue state 8 officials in federal court for prospective relief from ongoing violations of federal law,
9 as opposed to money damages, without running afoul of the doctrine of sovereign 10 immunity.” Id. at 895 (internal citation omitted). “In determining whether the 11 doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need 12 only conduct a ‘straightforward inquiry into whether [the] complaint alleges an 13 ongoing violation of federal law and seeks relief properly characterized as 14 prospective.”’ Id. Injunctive relief is allowed against state officers in their individual 15 capacities when ‘“a plaintiff seeks prospective relief to end a state officer’s ongoing
16 violation of federal law.’” Yakama Indian Nation v. State of Wash. Dep’t of Revenue, 17 176 F.3d 1241, 1246 (9th Cir. 1999) (quoting Idaho v. Coeur d’Alene Tribe of Idaho, 18 521 U.S. 261, 288 (1997) (O’Connor, J., concurring)). 19 Wild Fish’s lawsuit, and specifically, its Second Amended Complaint, seeks 20 the type of prospective relief that falls under the exception to Ex parte Young. Wild 21 Fish alleged the WDFW Officials’ Hatchery Programs violated section 9 of the ESA
22 and regulations, failed to demonstrate compliance to the ESA for programs the 23 officials had authorizations or exemptions for. Dkt. No. 49 at 24. Wild Fish alleged 1 that the WDFW Officials’ violations of the ESA and “regulations promulgated under 2 section 4(d) of the ESA” are “ongoing.” Id. As relief, Wild Fish sought a declaratory
3 judgment that WDFW Officials violated the ESA and injunctive relief commanding 4 WDFW Officials to (1) comply with the ESA, (2) stop implementing or funding the 5 Hatchery programs until they comply with the ESA, (3) and provide other 6 injunctive relief to ensure WDFW Officials no longer violate the ESA. Id. at 24-25. 7 The Court is satisfied the relief sought by Wild Fish is consistent with the Ex parte 8 Young doctrine and not barred by the Eleventh Amendment.
9 Finally, Wild Fish also requested its litigation expenses under Section 10 11(g)(4) of the ESA. Awards of reasonable attorney’s fees, costs, and litigation 11 expenses, are “not subject to the strictures of the Eleventh Amendment.” Missouri v. 12 Jenkins by Agyei, 491 U.S. 274, 279 (1989). WDFW’s argument that Wild Fish seeks 13 retroactive fees is unavailing—Wild Fish is eligible for fees because they sought and 14 received injunctive relief. See, e.g., Conservation Nw. v. Sherman, 715 F.3d 1181, 15 1185 (9th Cir. 2013) (“A consent decree is a hybrid; it is both a settlement and an
16 injunction.”). 17 3.4 The Court awards litigation costs to Wild Fish. 18 The Court has determined that Wild Fish is eligible for fees as the prevailing 19 party. The Court must now determine whether the requested attorneys’ fees are 20 reasonable. Wild Fish’s Motion sought a lodestar of $446,467 for 1,013.8 hours of 21 work on this case. Dkt. No. 92 at 9. It calculated its lodestar based on the time spent 22 23 1 on the instant ligation by each attorney and multiplied by the hourly rate for each 2 attorney. Dkt. No. 83 at 10.
3 To determine the appropriate lodestar, the Court multiples the number of 4 hours reasonably expended on the litigation times a reasonable hourly rate. 5 Schwarz v. Sec’y of Health & Hum. Servs., 73 F.3d 895, 901 (9th Cir. 1995). The 6 Court may then “increase or reduce the presumptively reasonable lodestar fee” 7 based on various factors. Cunningham v. Cnty. Of L.A., 879 F.2d 481, 484 (9th Cir. 8 1988). The Court should exclude hours that were “not reasonably expended.”
9 Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (citation omitted). The Court may 10 also reduce hours if the time claimed is “excessive, redundant, or otherwise 11 unnecessary.” Id. Other factors that may reduce the hours “deemed reasonable” 12 include: “(1) the overstaffing of a case or a demonstration of exceptional skill and 13 efficiency; and (2) the relative novelty and complexity of the issued raised.” 14 Cunningham, 879 F.2d at 485 (citing Hensley, 461 U.S. at 434). Additionally, 15 “where a plaintiff has only achieved limited success, not all hours expended on the
16 litigation are eligible for inclusion in the lodestar, and even those that are eligible 17 may be subject to a discretionary reduction.” Ibrahim v. U.S. Dep’t of Homeland 18 Sec., 835 F.3d 1048, 1060 (9th Cir. 2016). “The party opposing the fee application 19 has a burden of rebuttal that requires submission of evidence to the district court 20 challenging the accuracy and reasonableness of the hours charged.” Gates v. 21 Deukmejian, 987 F.2d 1392, 1397–98 (9th Cir. 1992).
22 23 1 3.4.1 Reasonableness of hourly rate. WDFW did not challenge any of the requested rates. “To inform and assist 2 the court in the exercise of its discretion, the burden is on the fee applicant to 3 produce satisfactory evidence--in addition to the attorney’s own affidavits--that the 4 requested rates are in line with those prevailing in the community for similar 5 services by lawyers of reasonably comparable skill, experience and reputation.” 6 Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). In determining hourly rates, the 7 Court looks to “prevailing market r[a]tes in the relevant community.” Bell v. 8 Clackamas Cnty., 341 F.3d 858, 868 (9th Cir. 2003). “Affidavits of the plaintiffs’ 9 attorney and other attorneys regarding prevailing fees in the community, and rate 10 determinations in other cases, particularly those setting a rate for the plaintiffs’ 11 attorney, are satisfactory evidence of the prevailing market rate.” United 12 Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). 13 The attorney’s requested rates vary with experience level and range from 14 $290 to $700. See Dkt. No. 83 at 15. Based on Wild Fish’s supporting materials and 15 the Court’s own local knowledge, and Defendants’ failure to contest the proposed 16 rates, the Court finds that the requested rates are reasonable. See Dkt. Nos. 84–86, 17 89. 18 19 3.4.2 Reasonableness of hours worked. 20 To determine the reasonable number of hours to be compensated, the Court 21 must consider “whether, in light of the circumstances the time could reasonably 22 have been billed to a private client.” Moreno v. City of Sacramento, 534 F.3d 1106, 23 1 1111 (9th Cir. 2008). The hours may be reduced by the Court if the “documentation 2 of the hours is inadequate”; “if the case was overstaffed and hours are duplicated”;
3 or “if the hours expended are deemed excessive or otherwise unnecessary.” 4 Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986). The Court has 5 the “authority to make across-the-board percentage cuts either in the number of 6 hours claimed or in the final lodestar figure ‘as a practical means of trimming the 7 fat from a fee application.’” Gates v. Deukmejian, 987 F.2d 1392, 1399 (9th Cir. 8 1992) (internal citation omitted).
9 The Court questions Wild Fish’s decision to utilize Brian Knutsen to work on 10 tasks such as motions to extend deadlines, which could have been delegated to a 11 more junior associate with a lower billing rate. See Asset Mktg. Sys., Inc. v. Gagnon, 12 No. 03-CV-2234-B (CAB), 2009 WL 10720557, at *6 (S.D. Cal. May 7, 2009) (“By 13 contrast, a senior attorney should delegate appropriate tasks to associates, for 14 example, legal research.”); Northon v. Rule, 494 F. Supp. 2d 1183, 1187 (D. Or. 15 2007) (reducing fee award where, among other things, when senior attorney failed
16 to delegate relatively simple tasks to junior associates). The same is true for tasks 17 performed by associate attorneys, such as preparing tables for briefs, filing briefs, or 18 preparing mailings, that could have been performed by legal staff. Thus, the Court 19 will reduce the overall fee award by 2.5% due to the team’s failure to properly 20 delegate certain tasks to more junior associates or legal staff. 21 A reduction is also warranted for excessive conferencing time between the
22 Kampmeier & Knutsen attorneys. The Court acknowledges that conferences 23 between members of the same legal team are an important part of litigation and can 1 sometimes promote efficiencies. There is a point, however, at which conferences can 2 become excessive, redundant, or unnecessary. Here, there are too many “strategy”
3 conferences between the attorneys, so another 2.5% reduction is justified. 4 WDFW argues the requested fee is unreasonable based on Wild Fish’s limited 5 success and its inclusion of fees related to the original complaint and the motion to 6 intervene by the tribes. The Court will not accept WDFW’s proposal to exclude all 7 fees incurred before the date that Wild Fish filed its First Amended Complaint. 8 Wild Fish achieved some relief in the Stipulated Order, which was entered before
9 Wild Fish amended its complaint. 10 The Court agrees with WDFW’s contention that they are not responsible for 11 the attorney’s fees attributable to the motions to intervene by tribes who asserted 12 their treaty rights could be impacted Plaintiff’s lawsuit. See Dkt. 90 at 8; Love v. 13 Reilly, 924 F.2d 1492, 1496 (9th Cir. 1991) (denying attorney fees that are not 14 “incurred in opposing government resistance”). WDFW alleges that $23,960 of the 15 attorneys’ fees are attributable to time spent on the motions to intervene. See Dkt.
16 Nos. 85 at 12–44; 90 at 8. Wild Fish does not contest this figure and the Court’s 17 review of the time records supports this reduction. The Court excludes $23,960 from 18 the recoverable attorney’s fees. 19 Next, the Court considers the “extent of [Wild Fish’s] success” in 20 “determining the proper amount of an award of attorney’s fees.” Hensley, 461 U.S. 21 at 440. First, the Court must consider whether “‘the plaintiff failed to prevail on
22 claims that were unrelated to the claims on which he succeeded.’” Webb v. Sloan, 23 1 330 F.3d 1158, 1168 (9th Cir. 2003) (internal citation omitted). It did not. Wild Fish 2 brought only one claim—violation of Section 9 of the ESA.
3 The Court next assesses whether Wild Fish “achieved a level of success that 4 makes the hours reasonably expended a satisfactory basis for making a fee award.” 5 Sorenson v. Mink, 239 F.3d 1140, 1147 (9th Cir. 2001) (internal citation omitted). 6 “[W]here the plaintiff achieved only limited success, the district court should award 7 only the amount that is reasonable in relation to the results obtained.” Hensley, 461 8 U.S. at 440. “[T]he product of hours reasonably expended on the litigation as a
9 whole times a reasonable hourly rate may be an excessive amount.” Id. at 436. 10 Through the Stipulated Order and Consent Decree, Wild Fish bound WDFW 11 to take specific actions towards the litigation’s goals. But Wild Fish did not receive 12 all the relief that it sought. Given Wild Fish’s partial success, the Court exercises its 13 discretion to reduce the fee award by 10%. Moreno v. City of Sacramento, 534 F.3d 14 1106, 1112 (9th Cir. 2008) (“[T]he district court can impose a small reduction, no 15 greater than 10 percent—a ‘haircut’—based on its exercise of discretion and without
16 a more specific explanation.”). The Court awards Wild Fish $342,442.90 in 17 attorneys’ fees.2 18 3.4.3 Costs and fees. 19 The citizen suit provision of the ESA allows the Court to “award costs of 20 litigation (including reasonable attorney and expert witness fees).” 16 U.S.C. § 21 1540(g)(4). Wild Fish requests $10,254.45 in expert witness fees and costs. These 22
23 2 The math breaks down as follows: ($446,467.00-$23,960) * .85 = $359,131. 1 costs and fees were for experts that provided declarations and consultation in the 2 case. Dkt. No. 83 at 12, 15. WDFW did not challenge any of these costs. The Court
3 finds that the expert fees and litigation costs sought by Wild Fish are properly 4 supported and reasonable. The Court concludes that Wild Fish is entitled to recover 5 an award of $9,510 for expert costs and $744.45 for litigation costs. 6 4. CONCLUSION 7 The Court GRANTS, in part, Wild Fish’s motion for attorney’s fees and costs. 8 Dkt. No. 83. The Court awards Wild Fish $359,131 in attorneys’ fees, $9,510 for
9 expert costs, and $744.45 for litigation costs. 10 Dated this 30th day of March, 2024. 11 A 12 Jamal N. Whitehead United States District Judge 13
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