Ecological Rights Foundation v. United States Army Corps of Engineers, et al.

Background

Ecological Rights Foundation, also called EcoRights, filed Freedom of Information Act requests with the United States Army Corps of Engineers (USACE) and the National Marine Fisheries Service (NMFS). The requests sought correspondence and internal communications concerning several facilities on California’s Yuba River. EcoRights requested that responsive records be produced in their original computer format or in a format usable with document-processing software.

NMFS issued responses before EcoRights filed the action, identifying records it would produce, records it would redact or withhold, and records it referred to USACE. USACE later produced records, conducted additional searches, and eventually agreed to provide certain records in their native format and an index of metadata. The final productions occurred in July 2024.

EcoRights moved for attorneys’ fees and costs under the Freedom of Information Act. It sought $166,840.20 in fees and $1,122.62 in costs.

Fees Against NMFS

The court held that EcoRights had not exhausted its administrative remedies as to NMFS. Administrative exhaustion generally requires a requester to use the agency’s appeal process before seeking relief in court when the agency has issued a sufficiently specific response. The court found that NMFS’s responses identified what it would produce, withhold, and refer, and informed EcoRights of its right to appeal. Because EcoRights did not appeal before filing suit, it was not eligible for attorneys’ fees against NMFS.

The court also held that EcoRights was not eligible for fees against NMFS because it had not substantially prevailed against that agency. EcoRights relied on the “catalyst theory,” which can permit fees when litigation causes an agency to voluntarily change its position. The court found no sufficient showing that NMFS changed its position because of the lawsuit or that NMFS had authorized the releases on which EcoRights relied.

Eligibility and Entitlement as to USACE

The court found EcoRights eligible for fees against USACE and determined that it was entitled to an award. In making that decision, the court considered the public benefit from the disclosures, any commercial benefit to EcoRights, the nature of EcoRights’s interest, and whether USACE had a reasonable legal basis for withholding or delaying records.

All four factors favored an award. EcoRights sought information relevant to whether the defendants were complying with Endangered Species Act duties concerning species and habitat. EcoRights is a nonprofit public-benefit corporation seeking information about a matter of public concern rather than a private or commercial benefit. The court also found that USACE had not shown a reasonable legal basis for its delay or for failing to provide records in the requested format. USACE’s customary practice of producing records as PDFs did not establish that the records were not readily reproducible in the requested format, and resource constraints did not provide a reasonable legal basis for the delay.

Amount of the Award

The court applied the lodestar method, which calculates fees by multiplying reasonable hours by a reasonable hourly rate. It found the requested hourly rates for attorneys Christopher Sproul and Stuart Wilcox reasonable.

The court did not reduce fees for preparing the complaint, case-management tasks, document review, or negotiations concerning document format. It deducted $1,841.50 for clerical work, $602.00 for time spent waiting for a case-management conference, and $532.50 for duplicate billing.

The court also excluded or reduced work devoted exclusively to NMFS-related issues. It deducted $18,000.50 for portions of the fee-motion briefing that concerned EcoRights’s unsuccessful fee claims against NMFS. It disallowed $262.74 in costs for serving NMFS and reduced legal-research costs by $67.42, for a total cost reduction of $330.16.

Disposition

The court ordered that EcoRights’s motion for attorneys’ fees and costs was granted in part and denied in part. As against USACE, the motion was granted in part, and EcoRights was awarded $145,863.70 in attorneys’ fees and $792.46 in costs, totaling $146,656.16. As against NMFS, the motion was denied.