Oregon Natural Resource Council v. Turner, Civ. No. 92-6291-TC.

• Decision Date: 06 July 1994
• Docket Number: Civ. No. 92-6291-TC.
• Citation: 863 F. Supp. 1277
• Parties: OREGON NATURAL RESOURCE COUNCIL as a membership organization and corporation, and Kathy Williams, Plaintiffs v. John F. TURNER, Director of the Fish and Wildlife Service of The United States Department of the Interior; Marvin L. Plenert, Regional Director One, of the Fish and Wildlife Service of the United States Department of the Interior; and Manual Lujan, Secretary of the United States Department of the Interior, Defendants.
• Court: U.S. District Court — District of Oregon

863 F. Supp. 1277

OREGON NATURAL RESOURCE COUNCIL as a membership organization and corporation, and Kathy Williams, Plaintiffs v. John F. TURNER, Director of the Fish and Wildlife Service of The United States Department of the Interior; Marvin L. Plenert, Regional Director One, of the Fish and Wildlife Service of the United States Department of the Interior; and Manual Lujan, Secretary of the United States Department of the Interior, Defendants.

Civ. No. 92-6291-TC.

United States District Court, D. Oregon.

July 6, 1994.

C. Peter Sorenson, organization and corporation Eugene, OR, for plaintiffs.

Thomas C. Lee, U.S. Attorneys Office, Portland, OR, Elinor Colbourn, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for defendants.

ORDER

HOGAN, District Judge.

Magistrate Judge Thomas M. Coffin filed his Findings and Recommendation on June 1, 1994. The matter is now before me. See 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). No objections have been timely filed. This relieves me of my obligation to give the factual findings de novo review. Lorin Corp. v. Goto & Co., Ltd., 700 F.2d 1202, 1206 (8th Cir.1983). See also Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.1983). Having reviewed the legal principles de novo, I find no error.

Accordingly, I ADOPT Judge Coffins' Findings and Recommendation. Plaintiff's petition for an award of attorney fees and expenses (# 64) is denied, and the parties shall bear their own costs.

IT IS SO ORDERED.

FINDINGS AND RECOMMENDATION

COFFIN, United States Magistrate Judge.

Plaintiffs petition the court for an award of attorneys' fees and expenses of litigation in the amount of $31,371.28. Such petition is made pursuant to 16 U.S.C. § 1540(g)(4), a section of the Endangered Species Act (ESA). For the reasons set forth below, the petition should be denied.¹

Factual Background

Plaintiffs brought this suit alleging that defendants failed to designate critical habitat for two endangered plant species (MacFarlane's four o'clock and Bradshaw's Desert Parsley (BDP)) and failed to develop a recovery plan for BDP. Plaintiffs concede that they did not prevail on their first two critical habitat claims,² but contend that they prevailed on their third claim regarding the development of a recovery plan for BDP and are entitled to fees related to such claim. Defendants "vigorously oppose" the petition for fees and costs.

The Third Claim

On June 4, 1992, plaintiffs sent their notice of intent to sue to the Secretary of Interior (Secretary), the Director of the United States Fish and Wildlife Service (USFWS), and the Regional Director for Region One of the USFWS, for violations of the ESA, 16 U.S.C. § 1533(f)(1) and (f)(4), and 16 U.S.C. § 1533(b)(6)(C). When the notified parties failed to immediately remedy the situations giving rise to the alleged violations, plaintiffs filed suit in the District Court for the District of Oregon on August 10, 1992. In the complaint, plaintiffs asserted their eligibility under ESA § 1540(g)(4) to recover attorney's fees. Id. at 6. After the initial service of the complaint, plaintiffs served requests for the production of documents, interrogatories, and requests for admissions.

On March 1, 1993, this Court issued a Findings and Recommendation (# 23) which was adopted in its entirety (# 32). Defendants' motion as to plaintiffs' claims related to the development of recovery plans for BDP was denied without prejudice to refile or to file as a summary judgment motion. The Court noted that the ESA establishes a non-discretionary duty for the Secretary to develop recovery plans for species listed as endangered and that plaintiffs conceded that the ESA imposes no time limit in which the Secretary must act. The Court also noted that a complaint should not be dismissed under Rule 12(b)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief and invited defendants to provide further briefing with their refiled motion to dismiss. Briefing was to be on the issue of at what point, if ever, the Secretary's nonpublishing of a recovery plan becomes a failure to perform a duty. The Court recognized the status of the nearly completed draft recovery plan and stated that the above mentioned issue had the potential of being mooted.

On March 12, 1993, defendants filed the recovery documents for BDP. The documents included drafts of the recovery plan that were circulated for comment within the agency as early as September 1991. On April 8, 1993, the draft recovery plan was published in the Federal Register for review and comment. 58 Fed.Reg. 18225 (April 8, 1993).

On May 6, 1993, defendants filed a Motion for Summary Judgment (# 34) addressing the issues of timing raised in the Findings and Recommendation, and attached a copy of the published draft recovery plan. Defendants explained that no violation of a legal duty had occurred since the Secretary had been working on drafts of the recovery plan since at least September 1991 and had, on April 8, 1993, published a draft recovery plan for comment and review. Moreover, due to the publication of the draft plan, plaintiffs' claims were now moot.

Plaintiffs filed their Opposition to Defendant's Motion for Summary Judgment and Motion for Partial Summary Judgment on May 19, 1993 (# 43, # 44). Plaintiffs sought summary judgment on four issues. The first two issues sought summary judgment as to plaintiffs' standing and jurisdiction of the court. Neither issue had been raised by defendants and defendants did not oppose summary judgment as to these issues, noting that "briefing these issues seems only to increase unnecessarily the costs and fees already invested in this case." Defs' Opp'n to Pls.' Cross-Mot. for Partial Summ.J. (# 49) at 3 n. 1. Defendants also did not oppose plaintiffs' motion for partial summary judgment as to the fact that declaratory judgment would be an appropriate remedy if the court were to find for plaintiffs on the merits. Defendants strongly opposed plaintiffs' motion for summary judgment on the issue of whether the Secretary of the Interior had violated a statutory duty to develop a recovery plan. Id. at 5-11.

On June 1, 1993, defendants filed, and served on opposing counsel, the Declaration of David L. McMullen (# 50) stating that a final recovery plan would be complete on or before August 6, 1993. Oral argument on the pending motions for summary judgment was held by telephone on June 21, 1993. On June 24, 1993, plaintiffs' counsel requested by letter to the Court that the Court not rule on the pending motions because the case would become moot in light of the statement by defense counsel at oral argument that the final recovery plan would be complete by August 6, 1993, information plaintiffs' counsel had been provided at least three weeks prior to the hearing date. Defendants requested by reply letter that the Court proceed with its deliberation on the pending motions.

On August 12, 1993, defendants informed the Court and opposing counsel that completion of the final recovery plan would be delayed until August 13, 1993. The recovery plan was completed on August 13, 1993, and submitted to the Court on August 18, 1993 (# 60). On October 16, 1993, the parties filed a Joint Stipulated Motion of Dismissal (# 62), and on October 18, 1993, the Court entered a Judgment of Dismissal (# 63) pursuant to that motion.

Discussion

The ESA states that the court may award costs of litigation including reasonable attorney fees whenever the court determines that such an award is appropriate. 16 U.S.C. § 1540(g)(4). In determining whether a grant of reasonable attorney's fees is appropriate, the court must first consider whether a plaintiff is a prevailing party. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). While a plaintiff must succeed on some aspect of the merits of his case to be considered a "prevailing party," it is not necessary that he or she ultimately prevail on every claim asserted or obtain all the relief requested. Sablan v. Dept. of Finance of the Commonwealth of the Northern Mariana Islands, 856 F.2d 1317 (9th Cir.1988) (citations omitted). Moreover, a party need not obtain formal relief after a full litigation of the issues or after a judicial determination. Id. Rather, a party may be considered to have prevailed when he or she vindicates rights through settlement, a stipulation to dismiss or a consent judgment and the suit has prompted the opposing party to take action to satisfy the party's demands. Id. A party seeking fees must establish a clear, causal relationship between the litigation brought and the practical outcome realized. Phrased in equivalent terms, the party must show that his lawsuit acted as a catalyst which prompted the opposing party to take action. Id.

Whether a lawsuit was a catalyst that prompted the opposing party to take action bifurcates into two subsidiary inquiries. First, it must be determined what the party sought to accomplish in bringing his lawsuit and then whether the lawsuit was causally linked to the relief actually obtained. Second, there must be a legal basis for the party's claim — it must not be frivolous, unreasonable or groundless. Stated otherwise, the opposing party's conduct in response to the lawsuit must be required by law to ensure that the government did not act gratuitously in response to a frivolous or legally insignificant claim. Id.

First Prong of Catalyst Test — "Causal Link"

The "causal link" prong of this two-part "catalyst" test for determining "prevailing party" status is nothing more than an inquiry into factual causation. Id. 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. The relief sought should be compared with the relief actually obtained...