Citizens for Better v. U.S. Dept. of Agriculture

• Citation: 497 F.Supp.2d 1062
• Decision Date: 17 April 2007
• Docket Number: No. C01-00728 MJJ.,C01-00728 MJJ.
• Parties: CITIZENS FOR BETTER, et al, Plaintiff, v. US DEPT OF AGRICULTURE, et al, Defendant.
• Court: U.S. District Court — Northern District of California

497 F.Supp.2d 1062

CITIZENS FOR BETTER, et al, Plaintiff, v. US DEPT OF AGRICULTURE, et al, Defendant.

No. C01-00728 MJJ.

United States District Court, N.D. California.

April 17, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michael Axline, Peter M.K. Frost, Eugene, OR, Brent Plater, Environmental Law & Justice Clinic, San Francisco, CA, Marc D. Fink, Attorney at Law, Duluth, MN, for Plaintiff.

Andrew Smith, U.S. Dept of Justice c/o U.S. Attorney's Office, Environment and Natural Resources Div., Albuquerque, NM, Robert Swan Mueller, III, James A. Coda, United States Attorney, San Francisco, CA, for Defendant.

ORDER RE FEDERAL DEFENDANTS' MOTION FOR DE NOVO REVIEW OF OBJECTIONS TO THE MAGISTRATE'S JULY 24, 2006, AND NOVEMBER 3, 2006 REPORT AND RECOMMENDATION FOR ATTORNEYS' FEES AND COSTS

JENKINS, District Judge.

Before the Court is Federal Defendants' timely filed Motion for De Novo Review of Objections to Magistrate Chen's July 24, 2006 and November 3, 2006 Report and Recommendation for Attorneys' Fees and Costs. (Doc. Nos. 142 and 153) Plaintiffs responded to the Defendants objections.

The Court has read and considered Defendants' objections, reviewed the memoranda submitted by the parties and heard oral argument in this matter on March 13, 2007. Having fully considered the arguments of counsel and having reviewed, De Novo, the record in this matter, the Court overrules Defendant's objections to Magistrate Chen's Report and Recommendation dated July 24, 2006 and November 3, 2006, and adopts, without change, Judge Chen's recommendations regarding Plaintiff's request for attorneys fees and costs. 28 U.S.C. § 636(b)(1)(B) & (C) (2005) and Federal Rule of Civil Procedure 72(b).

Accordingly, the Court awards Plaintiffs attorneys fees and costs in the total amount of $67,823.18 as described below:

1) $45,631.12 in attorneys fees on the merits;

2) $15,768.76 for fees on the fees motion; and

3) $6,423.30 for costs.¹

IT IS SO ORDERED.

REPORT AND RECOMMENDATION RE PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS

EDWARD M. CHEN, United States Magistrate Judge.

I. INTRODUCTION

On February 16, 2001, Plaintiffs, a coalition of twelve environmental groups¹, sued Defendants, the United States Department of Agriculture ("USDA") and the United States Forest Service ("Forest Service"), alleging substantive violations under the National Forest Management Act ("NFMA") and procedural violations under the Endangered Species Act ("ESA") and the National Environmental Protection Act ("NEPA"). The suit stems from the USDA's promulgation of a new national forest management policy (the "2000 Final Rule") governing the Forest Service's administration and management of National Forest System lands.

After the suit was filed, the USDA suspended and reviewed the 2000 Final Rule, announcing in December 2001 that a new rule would replace the 2000 Rule. Plaintiffs agreed to stay the substantive claims herein and moved for partial summary judgment on their procedural claims. The USDA filed a cross-motion for summary judgment, alleging that Plaintiffs lacked standing to challenge the 2000 Final Rule and that the claims were not ripe for review. District Judge Martin J. Jenkins of this Court held that Plaintiffs lacked standing to sue and that the procedural challenge to the 2000 Final Rule was not ripe for review. Order of February 20, 2002. The Ninth Circuit reversed the District Court's decision and held that Plaintiffs did have standing to assert to NEPA and ESA claims and that the case was ripe. Citizens for Better Forestry v. U.S. Dept. of Agriculture, 341 F.3d 961 (9th Cir.2003). The USDA subsequently withdrew the 2000 Final Rule and issued a new final rule. Plaintiffs thus dismissed this case.

Plaintiffs subsequently filed for a motion for attorneys' fees pursuant to the ESA and the EAJA. That motion was referred to this Court for report and recommendation. A hearing was held on April 26, 2006. For the reasons stated below, this Court recommends that Plaintiffs' motion for attorneys' fees be granted as to the NEPA claim but not the ESA claim. It further orders Plaintiffs to submit supplemental briefing on the amount of reasonable attorneys' fees and costs attributable to the NEPA claim.

II. BACKGROUND

A. Historical Overview

National forests and grasslands are managed by the Forest Service, an agency within the USDA. This agency utilizes a three-tiered approach to forest management, prescribed by the Forest and Rangeland Renewable Resources Planning Act of 1974 and the NFMA of 1976. Citizens for Better Forestry, 341 F.3d at 966. National uniform regulations promulgated by the Secretary of Agriculture constitute the highest tier of regulatory oversight of the forest management system and govern the development and revision of the regional and local plans. Id. (citing 16 U.S.C. § 1604(g)(1)). They also set broad guidelines, that are followed when preparing regional and site-specific plans, regarding plant and animal species conservation, timber management, and water management. Id.

The USDA promulgated the first national forest-management plan development rule in 1979, accompanied by a full Environmental Impact Statement ("EIS") which analyzed the environmental impact of the regulation. Id. at 966. This rule was short-lived arid was substantially revised in 1982. Citizens, 341 F.3d at 966. When initially published in the Federal Register as a draft rule, the 1982 Plan Development Rule was accompanied by a brief Environmental Assessment ("EA"), but not a full EIS.² Id. The 1982 Plan Development Rule set out a comprehensive approach to forest management, implementing the statutory directive. Id. (citing 47 Fed.Reg. 43,026, 43,038, Sept. 30, 1982). The 1982 Rule required that "fish and wildlife habitat shall be managed to maintain viable populations [there-of]," further defining a "viable" population as "one which has estimated numbers and distribution ... is the [relevant] area." Id. (citing 47 Fed. Reg. at 43,048). It also required the development of "regional guides" which "provided standards and guidelines for addressing major issues and management concerns which need to be considered at the regional level to facilitate forest planning." Id. (citing 47 Fed.Reg. 43,042). In addition, the Rule contained "minimum specific management requirements," setting forth mandatory directives which all regional "land and resource management plans" ("LRMP") must follow, and specific, quantifiable baselines below which no LRMP or site-specific plan can fall. Id. (citing 47 Fed.Reg. 43,050).

B. The 2000 Plan Development Rule

The USDA unsuccessfully attempted to amend the 1982 Rule. That effort culminated in 1995 with a draft rule that was never finalized. Citizens, 341 F.3d at 967. Subsequently, the Secretary of Agriculture convened a 13-member scientist committee under 16 U.S.C. § 1604(h), to offer recommendations for revising the plan development rules. After conducting public meetings and conferences, the USDA published a proposed rule in late 1999, soliciting further public comment. Id. (citing 64 Fed.Reg. 54,074 (Oct. 5, 1999)). The public comment period ran from October 5, 1999 through February 10, 2000. Id. (citing 65 Fed.Reg. 67,514, 67,517 (Nov. 9, 2000)).

Unlike previous draft development rules, the proposed rule did not include an environmental impact analysis nor did it solicit specific comments regarding its environmental impact. The USDA stated that it would complete an "environmental review" at some point before the adoption of a final rule. Citizens, 341 F.3d at 967 (citing 64 Fed.Reg. at 54,094). It claimed that it complied with NEPA by preparing an EA and Finding of No Significant Impact ("FONSI") dated July 21, 2000 — over five months after the close of the commend period for the proposed rule. The documents were never published in the Federal Register. Id. The USDA also never completed any "biological assessment" of the Rule's impact on endangered species under the ESA, nor did it engage in formal consultation with the Secretaries of the Interior or Commerce.³ Id. The final version of the 2000 Plan Development Rule was published on November 9, 2000. Id. at 968. The published version was not accompanied by any environmental or endangered-species analysis, although it did note the existence of the EA and FONSI. Id.

The 2000 Rule modified 1982 NFMA regulations in several ways: changing the species viability requirement by providing that "`[p]lan decisions affecting species diversity must provide for ecological conditions that ... provide a high likelihood that those conditions are capable of supporting over time the viability of ... species well distributed throughout their ranges within the plan area." Id. at 967-68 (quoting 65 Fed.Reg. 67, 575 (Nov. 9, 2000)) (emphasis added by Ninth Circuit). The 1982 Rule had a more stringent requirement that the USDA "insure" the conditions are capable of supporting viability. The 2000 Rule also eliminated the requirement of developing and issuing "regional guides" to maintain regional consistency in forest management and many "specific management requirements." Id. at 968. In addition, the Rule eliminated the post-decision appeal process of 36 C.F.R. § 217 and replaced it with a predecision "objection" process. Id. at 968. Under this new process, members of the public wishing to object to an amendment or revision of a LRMP have 30 days from the date an EIS is made available to do so. Hence, the process can occur before the finalization of the planned amendment only if the EIS is published more than 30 days before the amended LRMP becomes final. Id.

The 2000 Rule contained a transitional provision designed to facilitate the move from the requirements of the 1982 Rule: USDA officials were permitted to comply with either the 1982 Rule or the 2000 Rule for plans that were under revision at the time and for which final or draft EISs would be completed by May 9,...