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

Summary

The United States District Court for the Northern District of California grants in part and denies in part Plaintiffs’ motion for attorneys’ fees, costs, and other expenses under the Equal Access to Justice Act. The court holds that Plaintiffs properly proceeded under the Administrative Procedure Act and EAJA after prevailing on claims challenging the National Marine Fisheries Service’s biological opinion and decision not to prepare an environmental impact statement concerning endangered coho salmon. The court also denies Defendants’ objections to reply arguments and declarations and reduces the requested fee award in part.

Holdings

1. Plaintiffs properly brought their fee motion under the EAJA because their challenges to NMFS’s biological opinion and incidental take statement concerned discretionary agency implementation reviewable under the APA, not an ESA citizen suit.
2. Plaintiffs’ EAJA fee motion was timely because it was filed within 120 days after the Ninth Circuit dismissed the appeal, accounting for the period in which a petition for certiorari could be filed.
3. The government failed to establish that either its original agency action or its litigation position was substantially justified.
4. The court deducted $6,641.35 for in-house counsel work and $11,333.30 for pre-retainer work, denied an unspecified reduction for excessive or duplicative work, and applied a 10-percent reduction of $2,392.00 for clerical work.
5. The court applied enhanced San Francisco market rates for attorneys with distinctive environmental-law expertise and awarded the requested $1,721.28 in costs and expenses.

Questions Presented

1. Whether Plaintiffs properly sought attorneys’ fees under the Equal Access to Justice Act rather than the Endangered Species Act’s citizen-suit provision.
2. Whether Plaintiffs’ fee application was timely under the Equal Access to Justice Act.
3. Whether the government’s original agency action and litigation position were substantially justified.
4. Whether the requested attorneys’ fees should be reduced for work performed by in-house counsel, pre-retainer work, excessive or duplicative work, or clerical work.
5. Whether enhanced San Francisco market rates and requested costs and expenses were recoverable under the Equal Access to Justice Act.

Disposition

other