Natural Res. Def. Council v. Locke, C 01–0421 JL.

• Decision Date: 14 February 2011
• Docket Number: No. C 01–0421 JL.,C 01–0421 JL.
• Citation: 771 F.Supp.2d 1203
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs,v.Gary LOCKE, et al., Defendants.
• Court: U.S. District Court — Northern District of California

771 F.Supp.2d 1203

NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs,

v.Gary LOCKE, et al., Defendants.

No. C 01–0421 JL.

United States District Court, N.D. California.

Feb. 14, 2011.

Eric A. Bilsky, Oceana Inc., Aaron Colangelo, Attorney at Law, Washington, DC, Selena Katherine Kyle, Natural Resources Defense Council, San Francisco, CA, for Plaintiffs.Erik Edward Petersen, Kristen Byrnes Floom, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER AWARDING ATTORNEY FEES AND EXPENSES (Granting Docket # 349)

JAMES LARSON, United States Magistrate Judge.I. Introduction

Plaintiffs' motion for attorney fees and expenses (Docket # 349) under 28 U.S.C. § 2412, the Equal Access to Justice Act (“EAJA”), in the amount of $505,841.41, came on for hearing. Selena Kyle, Natural Resources Defense Council, appeared for Plaintiffs. Kristen Floom, U.S. Department of Justice, appeared for Defendants (by telephone). The Court carefully considered the moving and opposing pleadings and the arguments of counsel and hereby grants the motion. The Court concludes that Plaintiffs substantially prevailed, and finds also that each claim and issue NRDC lost is nevertheless closely related to a claim or issue on which the Court awarded relief to NRDC. The Court finds that Plaintiffs exercised billing judgment and did not bill for 1000 hours of the 2600 they worked. The Court finds that the attorneys for NRDC were uniquely qualified and could not have been retained at statutory EAJA rates and that the rates and hours charged were reasonable. Finally, the Court finds that Defendants' positions were not substantially justified.

NRDC achieved a victory for fishery conservation and a substantial part of the relief it sought in this case when this Court remanded the 2009–2010 Specifications for Pacific Coast groundfish for failure to apply the best available science and vacated the Specifications for three species for failing to rebuild those species in the shortest time possible. Defendants later voluntarily dismissed their appeal of this Court's order. This Court's April 2010 rulings compelled Defendants to revise their rebuilding scheme for the fishery. Defendants' litigation positions on the issues they lost were not substantially justified and often were directly contrary to Ninth Circuit precedent. NRDC is a prevailing party entitled to EAJA fees.

For its fee motion, NRDC excluded outright more than 1,000 of the more than 2,600 hours it spent on this case over the past half decade and applied an additional across-the-board cut of ten percent to the hours reasonably expended by its lead attorneys. Defendants now urge this Court to apply additional across-the-board cuts to NRDC's requested rates and claimed hours and to categorically deny recovery for work before Defendant National Marine Fisheries Service (“NMFS”) that was essential and integral to NRDC's pursuit of its winning claims. These proposed reductions should be rejected as contrary to controlling case law on the scope of work compensable under EAJA. NRDC requests a revised EAJA award of $505,841.41. This revised figure accounts for NRDC's work on fee recovery and adjustments to NRDC's original fee claim, as explained below.

II. Procedural Background

Plaintiff Natural Resources Defense Council (“NRDC”) moves for an award of $528,087.43 in attorney's fees and expenses pursuant to the Equal Access to Justice Act (“EAJA.”), 28 U.S.C. § 2412(d)(1)(A). This award would compensate NRDC for reasonable fees and expenses incurred over more than six years of work, culminating in this Court's April 2010 summary judgment and remedy orders, which invalidated substantial portions of Defendants' current harvest scheme for overfished Pacific Coast groundfish.

In June 2004, NRDC and Defendants reached, and this Court endorsed, a stipulated settlement of interim fees and expenses for work on this case through January 2004 and additional fees and expenses associated with pursuit of the interim award. See June 30, 2004 Joint Stipulation and Order of Settlement as to Attorneys' Fees and Expenses. Plaintiffs do not seek compensation for any fees or expenses covered by that settlement. Declaration of Selena Kyle (“Kyle Dec.”) ¶ 10, 12. (Docket Nos. 103, 106)

Plaintiffs' motion is timely, in accordance with the statutory time frames established by EAJA, having been filed within 30 days of the Ninth Circuit's August 19, 2010 dismissal after Defendants voluntarily dismissed their appeal from this Court's April 2010 orders. Id. § 2412(d)(1)(B); Order, NRDC v. Locke, No. 10–16444 (9th Cir. Aug. 19, 2010), entered at Docket # 352.

NRDC filed this case in 2001 to compel Defendants to comply with the mandates of the Magnuson–Stevens Fishery Conservation and Management Act and related procedural statutes in regulating harvests of overfished Pacific Coast groundfish species. This case is the capstone in a series of NRDC lawsuits challenging Defendants' failure to rebuild overfished stocks within the fishery to healthy populations in accordance with Magnuson Act mandates. In its 2005 ruling in Natural Resources Defense Council, Inc. v. National Marine Fisheries Service, 421 F.3d 872 (9th Cir.2005), the Ninth Circuit invalidated a rebuilding period for one of the same species at issue in this case, darkblotched rockfish, and recognized that Section 304(e)(4)(A)(i) of the Act strictly limits Defendants' discretion to delay rebuilding and increase harvests of overfished species to promote short-term economic gains in the fishery. The Ninth Circuit explained that “[t]he purpose of the Act is clearly to give conservation of fisheries priority over short-term economic interests.” Id. at 879.

In its April 23, 2010 summary judgment order, this Court ruled that Defendants have continued to give undue weight to short-term economic concerns in establishing rebuilding periods and harvest levels for several critically depleted Pacific Coast groundfish species, in contravention of the Magnuson–Stevens Act and binding Ninth Circuit precedent. When Defendants approved the 2009–2010 harvest specifications and management measures (2009–2010 Specifications.) for Pacific Coast groundfish, the latest available stock assessments for cowcod, darkblotched rockfish, and yelloweye rockfish indicated that these species were considerably less abundant and recovering more slowly than Defendants had assumed in approving their 2007–2008 Specifications for these species. See April 23, 2010 Order, Dkt. No. 340, at 30–39. (Court's document pagination) Defendants responded to these less favorable stock assessments by maintaining or increasing allowable harvest levels and extending the projected time for each species to rebuild. Id.

Defendants' actions violated the Magnuson Act's mandate to rebuild each overfished species in the shortest time possible within the meaning of Section 304(e). Id. In its April summary judgment ruling, this Court noted that Defendants appeared to have done for darkblotched rockfish “exactly the same thing the court of appeals expressly disapproved in [ NRDC v. NMFS ]—extend the rebuilding period and increase harvesting of a species because it is doing worse than previously thought .. ” Id. at 31. The Court also faulted Defendants' decision to defer cowcod's rebuilding several decades past the earliest biologically possible date in order to maintain short-term harvests and increase associated short-term revenues in the fishery. Id. at 35 (“NMFS's decision to delay rebuilding the most depleted overfished species by more than a generation in exchange for a multimillion-dollar year-on-year increase in fishery revenue violates section 304(e)(4)(A)(i) .. ”). The Court also invalidated Defendants' 2009–2010 Specifications for yelloweye rockfish, which deferred planned decreases in harvests and established a target rebuilding date of 2084 for the species. Id. at 39 (noting that “[y]elloweye is biologically capable of rebuilding by 2049, three and a half decades earlier than [Defendants'] current harvest levels for the species will allow .. ”).

The Court's April 2010 summary judgment ruling also identified significant flaws in the economic analysis Defendants relied on to justify their harvest levels and rebuilding periods for all overfished Pacific Coast groundfish species. Specifically, the Court found that Defendants had unjustifiably relied on outdated economic information on port income in a way that likely exaggerated the short-term economic costs of faster rebuilding and further biased the 2009–2010 Specifications towards short-term harvest levels and revenue gains. Id. at 20–23. In so doing, Defendants violated their Magnuson Act obligation to base Specifications on the “best scientific information available” for the fishery. Id. at 18–23; 16 U.S.C. § 1851(a)(2).

The Court addressed these legal errors in an April 29, 2010 remedy order that vacated Defendants' 2009–2010 Specifications for darkblotched rockfish, yelloweye rockfish, and cowcod; remanded the 2009–2010 Specifications in their entirety; and directed Defendants to issue revised Specifications that are based on the best available scientific information and calculated to rebuild darkblotched, yelloweye, and cowcod in the shortest time possible. Dkt. No. 342 at 2. This remedy order granted a substantial portion of the relief sought in NRDC's Fifth Amended Complaint. See Fifth Amended Complaint, Dkt. No. 260, at 11–17.

III. AnalysisA. NRDC is entitled to an EAJA award because NRDC prevailed and Defendants' position was not substantially justified.

EAJA states:

Except 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...