Environmental Protection Information Center, et al. v. Alicia Van Atta, et al.

Background

The plaintiffs challenged the National Marine Fisheries Service’s issuance of fourteen permits authorizing incidental taking of coho salmon in the Shasta River. In an earlier summary-judgment ruling, the court found that the agency violated the Endangered Species Act by improperly limiting the action area in its biological opinion and acted arbitrarily and capriciously by declining to prepare an environmental impact statement. The court remanded those issues to the agency with instructions to prepare a biological opinion accounting for the direct or indirect effects of Dwinnell Dam and to prepare an environmental impact statement. Judgment was entered for the plaintiffs, and the parties appealed. The Ninth Circuit dismissed the appeals described in the opinion.

The plaintiffs later requested attorneys’ fees, costs, and other expenses under the Equal Access to Justice Act. Defendants objected to arguments and declarations submitted with the plaintiffs’ reply and opposed the fee request on several grounds, including timeliness, substantial justification, and the amount of fees.

Objections to Reply Materials

The court denied defendants’ objections to the plaintiffs’ reply arguments and declarations. The court found that the reply materials responded to arguments raised in defendants’ opposition and therefore did not improperly introduce new material.

Statutory Basis and Timeliness of Fee Motion

The court held that the plaintiffs properly brought their fee motion under the Equal Access to Justice Act because their challenges to the biological opinion and incidental take statement arose under the Administrative Procedure Act. The court characterized those challenges as attacks on the agency’s discretionary implementation of the Endangered Species Act, rather than claims brought under the Act’s citizen-suit provision.

The court also found the motion timely. It concluded that the relevant final-judgment period ran from the Ninth Circuit’s February 12, 2025 dismissal of the plaintiffs’ appeal and that the plaintiffs’ May 2, 2025 motion was filed within the applicable period.

Substantial Justification

Under the Equal Access to Justice Act, a prevailing party may receive fees unless the government’s position was substantially justified or special circumstances would make an award unjust. The court found that defendants failed to show substantial justification for either their original agency action or their litigation position. The court relied on its earlier findings that the agency improperly limited the biological opinion’s action area, relied on measures that were not reasonably certain to occur, and acted arbitrarily and capriciously in declining to prepare an environmental impact statement. The court noted that the agency’s application of the Safe Harbor Policy was lawful, but concluded that defendants still had not justified their position at each stage of the proceedings.

Calculation of Attorneys’ Fees

The plaintiffs requested $692,832.62 in attorneys’ fees, excluding $1,721.28 in costs and expenses. The court excluded $6,641.35 for Thomas Wheeler’s work because the billing records showed that he performed typical case-management and in-house-counsel tasks rather than compensable litigation work.

The court approved enhanced San Francisco market rates for Peter Frost and Sangye Ince-Johannsen. It found that both attorneys had distinctive environmental-law knowledge and skills, that those skills were needed for this litigation, and that qualified counsel was not available at the Equal Access to Justice Act’s statutory rate. The court declined to apply Oregon market rates and instead followed the general rule using rates from the district court’s forum. The approved rates were $835 to $895 per hour for Frost, depending on the year, and $450 to $510 per hour for Ince-Johannsen, depending on the year.

The court deducted $11,333.30 for pre-retainer work based on a reduction the plaintiffs conceded was appropriate. It allowed the full requested amount for pre-complaint work, totaling $164,116.50, because the case required extensive research into the Shasta River, coho salmon, tribal history, and related conservation measures. The court denied defendants’ request for a 50-percent reduction for allegedly excessive or duplicative work because defendants did not provide a specific explanation. The court did, however, apply a 10-percent reduction to 30 hours of administrative or clerical work, reducing the fee request by $2,392.00.

Disposition

The court granted in part and denied in part the plaintiffs’ motion for attorneys’ fees, costs, and expenses. It awarded $672,465.97 in attorneys’ fees and $1,721.28 in costs and expenses, for a total award of $672,638.25. The court also denied defendants’ objections to the plaintiffs’ reply arguments and declarations.