IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

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1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON DEFENDERS OF WILDLIFE; ET AL., Plaintiffs, Civil No JO v. O R D E R SECRETARY, UNITED STATES DEPARTMENT OF THE INTERIOR, being sued as Gale Norton; ET AL., Defendants. v. STATE OF WYOMING; ET AL., Intervenor-Defendants. Brian B. O'Neill Elizabeth H. Schmiesing Richard A. Duncan Colette Routel FAEGRE & BENSON, LLP 90 South Seventh Street, Suite 2200 Minneapolis, MN

2 Stephanie M. Parent PACIFIC ENVIRONMENTAL ADVOCACY CENTER S.W. Terwilliger Boulevard Portland, OR Attorneys for Plaintiffs Kristen L. Gustafson Jimmy A. Rodriguez WILDLIFE & MARINE RESOURCES SECTION Environment & Natural Resources Division U.S. Department of Justice Ben Franklin Station, P. O. Box 7369 Washington, D.C Attorneys for Defendants Jay A. Jerde Michael R. O'Donnell WYOMING ATTORNEY GENERAL'S OFFICE 123 Capitol Avenue Cheyenne, WY Suzanne C. Lacampagne MILLER NASH, LLP 111 S.W. Fifth Avenue, Suite 3400 Portland, OR Anna M. Seidman SAFARI CLUB INTERNATIONAL nd Street N.E. Washington, D.C Elizabeth E. Howard CHURCHILL LEONARD LODINE & HENDRIE, LLP 605 Center Street, N.E. Salem, OR Steven W. Strack IDAHO ATTORNEY GENERAL'S OFFICE P. O. Box Boise, ID David A. Bledsoe 2 - ORDER

3 3 - ORDER PERKINS COIE, LLP 1120 N.W. Couch Street, 10 th Floor Portland, OR David F. Hensley L. Michael Bogert STATE OF IDAHO Office of the Governor 700 W. Jefferson Boise, ID Martha Williams Robert N. Lane MONTANA DEPARTMENT OF FISH, WILDLIFE P. O. Box Helena, MT JONES, Judge: Attorneys for Intervenor Defendants As prevailing parties in this action, plaintiffs have petitioned this court for an award of attorneys' fees and costs under the Endangered Species Act (ESA, 16 U.S.C. 1540(g(4. The ESA authorizes district courts to award costs and attorneys' fees when a court finds that such an award is "appropriate." Id. For the reasons that follow, this court grants in part Plaintiffs' Petition for Costs, Including Attorney Fees (Attorney Fee Petition (#185 and awards plaintiffs $260, in attorneys' fees and $12, in costs. BACKGROUND Plaintiffs commenced this action on October 1, 2003, seeking to invalidate the United States Fish & Wildlife Service's Final Rule to Reclassify and Remove the Gray Wolf from the list of Endangered and Threatened Wildlife in Portions of the Conterminous United States, 68 Fed. Reg. 15,804 (April 1, 2003 (Final Rule. On January 31, 2005, this court granted plaintiffs'

4 motion for summary judgment, enjoining and vacating the Final Rule. Plaintiffs, as prevailing parties, now request attorneys' fees in the amount of $333, and costs in the amount of $14, The federal defendants do not refute that plaintiffs are entitled to attorneys' fees and costs. They do, however, challenge the amount of fees requested on the grounds that 1 plaintiffs' requested hourly rates are unreasonably high; 2 plaintiffs may not recover attorneys' fees from the federal defendants for time devoted to defendant-intervenors; 3 plaintiffs may not recover attorneys' fees for time devoted to press releases; and 4 plaintiffs may not recover attorneys' fees for time spent that is unnecessary, duplicative, or excessive. The federal defendants also object to plaintiffs' request for costs relating to travel expenses for non-participating attorneys and non-essential paralegals. Because plaintiffs have not made any request for attorneys' fees or costs from the defendant-intervenors, the defendantintervenors have taken no position on the Attorney Fee Petition. STANDARDS In an action brought under the ESA, the court "may award costs of litigation (including reasonable attorney and expert witness fees to any party, whenever the court determines such award is appropriate." 16 U.S.C. 1540(g(4. Under the ESA, the award of attorneys' fees must be reasonable and appropriate. It is the court's duty to determine what fee is reasonable. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983, Gates v. Deukmejian, 987 F.2d 1392, 1401 (9th Cir "The most useful starting point for determining the amount of a reasonable fee is the 4 - ORDER

5 number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley, 461 U.S. at 433. This is the lodestar approach. DISCUSSION 1. Reasonableness of the Hourly Rate Plaintiffs contend that they should be paid their normal hourly billing rate. This rate ranges from $490 for a senior partner with a great deal of trial experience to $210 for a junior associate. The federal defendants claim that plaintiffs' requested rates are unreasonably high. This court will use the Oregon State Bar Economic Survey (OSB Survey 1 as a starting point for determining what is a reasonable rate in assessing attorney fee petitions. See "Message from the Court re attorney fee petitions," available at Upon request, the court, in its discretion, may adjust the fee upward from the OSB Survey based on any number of factors if counsel provide ample justification for the upward departure. Id. The OSB Survey gives average and median rates in various forums across the state, including the Portland metro area, based on number of years practiced. Id. The OSB Survey also provides hourly rates at the 25th, 75th, and 95th percentiles. Id. Generally, courts will determine a reasonable hourly rate based on comparable rates of attorneys in the forum market. Mendenhall v. Nat'l Transp. Safety Bd., 213 F.3d 464, 471 n.5 (9th Cir The forum market is the location where the case was litigated. See Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 426 F.3d 694, (3d Cir (answering the question 1 T h e O S B s u r v e y c a n b e f o u n d a t : The most recent survey was published in ORDER

6 of "whether a court should look to prevailing rates in the attorney's home community or the locus of the litigation in determining the appropriate compensation for an out of town attorney". Courts have found exceptions to this general rule. A court may consider another market if counsel shows that there were no attorneys in the forum that could have taken the case. Gates, 987 F.2d at 1405; Interfaith Cmty., 426 F.3d at 705. Similarly, a court may consider another market if special expertise is needed. Interfaith Cmty., 426 F.3d at 705. In this case, Portland, Oregon is the forum market. Plaintiffs have made no showing that an exception applies, and in fact, specifically sought Portland based counsel. Plaintiffs did not demonstrate to the court that there were no firms in the Portland market that could have handled this particular case. Therefore, the rates charged in the Portland market are the appropriate starting point for determining a reasonable hourly rate. While plaintiffs acknowledge that the rule in this district is to use the OSB survey for the Portland market, the attorneys argue that they should receive the higher rates in this case because of their extensive experience in this kind of environmental litigation, because they achieved complete success with national impact, and because they spent a great deal of pro bono time on this case. On the other hand, the federal defendants argue that a reasonable rate for attorneys' fees in this case is the 75th percentile rate listed in the 2002 OSB Survey for attorneys with comparable experience, adjusted for inflation based on the CPI. 2 I agree. Compensating plaintiffs' counsel at the 75th percentile rate accommodates their experience and expertise in a 2 The U.S. Department of Labor does not give a CPI for Portland. The closest comparison would be Seattle. 6 - ORDER

7 specialty area, and the amount of time and effort spent on this case. This sets the hourly rate as follows: Name Years of Experience Brian B. O'Neill 30+ $267 $270 $275 Richard A. Duncan 16 $263 $266 $271 Elizabeth H. Schmiesing 12 $234 $236 $241 Stephanie M. Parent 12 $234 $236 $241 Anne E. Mahle 3 $161 $163 $166 Colette Routel 3 $161 $163 $166 Plaintiffs request an hourly rate of $125 for Collette Adkins-Giese (summer law clerk, Richard Cox (paralegal, and Susan Lahr (paralegal. The OSB Survey does not give rates for law clerks or paralegals and the requested rate for these persons is not disputed by the federal defendants. Therefore, I find that a rate of $125 per hour for Adkins-Giese, Cox, and Lahr is not an unreasonable rate. For the foregoing reasons, this court denies plaintiffs' petition for an award of attorneys' fees to the extent they request their normal billing rates, and concludes that plaintiffs are entitled to attorneys' fees at the rates listed above. 2. Reasonableness of the Number of Hours While the lodestar is a starting point for determining a reasonable fee, district courts have an independent duty to review the fee petition and exclude from the initial calculation hours that were unreasonably spent. Hensley, 461 U.S. at While the party petitioning for fees has the initial burden of documenting and providing support for the hours expended, the opposing party bears the burden of submitting to the court evidence that the hours spent are unreasonable. Hensley, 461 U.S. at 433; Gates, 987 F.2d at ORDER

8 Plaintiffs have submitted their billing records to this court. See Plaintiffs' Petition for Costs (Pls' Pet.,Tab 2. Plaintiffs also state that they have culled through their hours, eliminating time they considered to be "duplicative, inefficiently spent, or not directly related to the claims brought in the litigation." Declaration of Elizabeth Schmiesing 2. Out of nearly 1800 total hours spent on this case, plaintiffs voluntarily eliminated only 48.2 hours from their petition. See Pls' Pet.,Tab 3. As explained above, the federal defendants challenge the reasonableness of the hours claimed on several grounds: 1 plaintiffs may not recover attorneys' fees from the federal defendants for time devoted to defendant-intervenors; 2 plaintiffs may not recover attorneys' fees for time devoted to press releases; and 3 plaintiffs may not recover attorneys' fees for time spent that is unnecessary, duplicative, or excessive. I will address each in turn. A. Plaintiffs' time spent on defendant-intervenors. The federal defendants argue that the government should not be required to pay for time plaintiffs spent responding to motions filed by the defendant-intervenors. Love v. Reilly, 924 F.2d 1492, 1495 (9th Cir I agree. Therefore, I find that Richard Duncan's time should be reduced by 2.75 hours, Elizabeth Schmiesing's time by 4.25 hours, Stephanie Parent's time by.5 hours, Anne Mahle's time by 11.5 hours, Colette Routel's time by 8.25 hours, and Collette Adkins-Giese's time by hours. B. Plaintiffs' time spent on press releases. Plaintiffs have included several hours spent on public relations activities including preparation of press releases about the wolf case, an op/ed in the local newspaper, and an article for International Wolf magazine. As the federal defendants acknowledge, the Ninth Circuit does 8 - ORDER

9 allow compensation for time spent on public relations activities when those activities are "directly and intimately related to the successful representation of a client." Gilbrook v. City of Westminister, 177 F.3d 839, 875 (9th Cir In this case, however, plaintiffs have made no attempt to describe how the time spent on press activities contributed to the attainment of their litigation goals. Because plaintiffs have not established that time spent on various press activities was directly related to the litigation of this case, I find that charging the government for these hours is not reasonable. Consequently, I reduce Elizabeth Schmiesing's time by.25 hours, Anne Mahle's time by hours, and Colette Routel's time by 1.5 hours. C. Unnecessary, duplicative, and excessive time. Finally, the federal defendants challenge plaintiffs' requested number of hours on the grounds that some of the hours spent were unnecessary, duplicative, or excessive. In particular, the federal defendants claim that plaintiffs billed time for more attorneys than were necessary to attend the scheduling conference in Portland in January 2004, and oral argument on the summary judgment motion in Portland in January Anne Mahle, Elizabeth Schmiesing, and Stephanie Parent attended the scheduling conference. The federal defendants claim that it was excessive to send these three attorneys to the conference. However, the defendants have not explained why this is unreasonable, or offered any information concerning how many attorneys they sent to the conference. I find that it was not unreasonable, especially in the early stages of the case, to send a senior partner, a junior associate, and local counsel to the scheduling conference. Plaintiffs also billed time for Brian O'Neill, Stephanie Parent, Collette Adkins-Giese, and 9 - ORDER

10 Susan Lahr to attend oral argument on the summary judgment motion in January The federal defendants challenge the inclusion of Collette Adkins-Giese's time as unnecessary. I agree. Plaintiffs have provided no explanation as to why it was necessary for Adkins-Giese to fly to Portland from Minneapolis to attend oral argument; indeed, the billing records show only that she attended, not that she had any responsibilities while she was here. I find that the presence of two attorneys and one support paralegal was all that was necessary, but billing for Adkins-Giese's time was unreasonable. Accordingly, Adkins-Giese's time will be reduced by 12.5 hours. The federal defendants also challenge as excessive time spent by the plaintiffs on various tasks. For example, the federal defendants claim that the 225 hours spent drafting a joint statement of facts was excessive and suggest compensation for 160 hours as reasonable. The federal defendants have not, however, provided support for the claim that plaintiffs' time was excessive. I find that plaintiffs were judicious in the use of their resources as the majority of the time spent on this case was by junior associates and summer clerks. For that reason, and because the federal defendants have failed to provide sufficient justification to decide otherwise, I conclude that the amount of time requested by plaintiffs is reasonable, except as mentioned above. 3. Stephanie Parent's Hours In their petition, plaintiffs request 40 hours for Stephanie Parent. However, the billing records as submitted to the court show only 23.2 hours. Therefore, I allow 23.2 hours for time spent by Stephanie Parent, minus the.5 hours of her time spent on defendant-intervenors as 10 - ORDER

11 discussed above, for a total of 22.7 hours. 4. Costs Plaintiffs have requested $14, in costs and have submitted itemized statements of these costs to the court. The federal defendants object to $3, of these costs related to the travel expenses of Susan Lahr, Collette Adkins-Giese, and Elizabeth Schmiesing. As discussed above, I find that it was unreasonable to charge the defendants for Adkins-Giese's travel to Portland for the summary judgment hearing. Therefore, I reduce plaintiffs' costs by $1, CONCLUSION For the foregoing reasons and taking into account the rate and time reductions described above, I grant in part plaintiffs' petition (#185 and award plaintiffs attorneys' fees in the amount of $260,560.50, and costs in the amount of $12, IT IS SO ORDERED. DATED this 15 th day of November, /s/ Robert E. Jones ROBERT E. JONES U.S. District Judge 11 - ORDER

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