Free Reply to Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-01071-MSK

San Luis Valley Ecosystem Counsel, James Martin, Jerre Guthals, Antlers Rio Grande Lodge, Inc., a Colorado Corporation, and Charles C. Powers,
Plaintiffs, V.

)

)
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

United States Forest Service
Defendant and

ALXCHNG, LLC, a Texas Limited Liability Company, CNXCHNG, LLC, a Texas Limited Liability Company and RIO OXBOW RANCH, Inc., a Colorado Corporation
Interveners


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PLAINTIFFS' REPLY TO BRIEF IN RESPONSE TO PLAINTIFFS' MOTION FOR ATTORNEY FEES UNDER EAJA
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I. STANDARD OF REVIEW Plaintiffs agree with the Defendant's statement of the standard of review. Defendant admits that the Plaintiffs must establish they are the prevailing parties which the Plaintiffs are, as discussed in more detail in the next section. Defendant also admits
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that if the Plaintiffs are the prevailing party, then it is the Government's burden to prove that its position was substantially justified or that special circumstances make an award unjust. See Defendant's Response, page 5. The Government makes the argument in the "Background" section of its Response at page 4 that Plaintiffs have misstated the law in their Motion for Attorney Fees that the Government's position was not justified, because the Court found the Government's position to be arbitrary and capricious and reversed the decision to approve the sale based on an EA with out an EIS. It is the Plaintiffs position, as the Government admits under its own Point I, Standard of Review, that the Plaintiffs are entitled to the presumption initially that the Government's position was not substantially justified and was arbitrary and capricious unless the Government establishes otherwise. This is the Government's burden which, as will be argued hereinafter, the Government failed to carry. It is not the Plaintiffs' obligation to imagine what arguments the Government might put forth to justify its position and shadow box with themselves in the Motion for Attorney Fees, but rather to rely on the finding of the court of arbitrary and capricious conduct and respond to the Government's arguments when made. In United States of America v. Hallmark Construction Company, 200 F.3d 1076 (7th Cir. 2000), a case cited by the Defendant in its brief on the standard of review, the Court discussed the standard as follows: "Although there is no presumption that a prevailing party against the Government will recover attorney's fees under the EAJA, Marcus, 17 F.3d at 1036, the Government bears the burden of proving that its position meets the substantially justified standard, id., see also Jackson, 94 F.3d at 278. In this case, the trial Court had found in its memorandum opinion that
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`[t]he Corps' conclusion [that Hallmark violated the CWA] was arbitrary and capricious because it was not based on a consideration of the relevant factors and evidence.' United States v. Hallmark Constr. Co., 30 F. Supp. 2d 1033, 1041 (N.D. Ill. 1998). The district court also had determined that `[m]uch of the Government evidence rested on speculation and conjecture.' Id. at 1039. While these conclusions alone may not mandate an award of attorney's fees, they do raise the question of how the Government was able to prove the substantial justification of its position in light of the district court's ultimate findings. See Marcus, 17 F.3d at 1038 (noting that strong language against the Government's position in an opinion discussing the merits of a key issue is evidence in support of an award of EAJA fees)." Id. at 1077.

As is discussed herein after, the Court found the Government's positions on numerous points arbitrary and capricious and even found evidence in the record that the government knowingly changed the findings so as to avoid the requirements of the law. II. PLAINTIFFS WERE THE PREVAILING PARTIES Defendant suggests in Point II of its Response Brief that the Plaintiffs were not the prevailing parties on this appeal. Defendant seems to argue that the Plaintiff demanded an Order or Judgment of some kind prohibiting the Exchange, and all the Plaintiffs won was a reversal of the decision and remand for further consideration under applicable law. Plaintiffs do not know where the Forest Service got this argument. Plaintiffs Second Amended Complaint for Declaratory and Injunctive Relief was served September 14, 2004 (Court Document #42). The Prayer for Relief requests the Court find the Forest Service had violated FLPMA, the APA and NEPA and to reverse the Responsible Agency officials decisions and to remand the matter to the Agency. Paragraph C of the Prayer for Relief requests the Court to enjoin the exchange until the Forest Service complies with NEPA and the other applicable laws. This is exactly what
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the Court did in its ruling in this matter, i.e. granted the requested relief. Nowhere did the Plaintiffs request the Court find the entire Exchange unlawful under any circumstances as the Defendant suggests. The Defendant did not prevail on any issue in the action. The Court in its Order "Memorandum Opinion and Order Reversing Agency Decision and Remanding for Further Proceedings," May 17, 2007, granted relief under one claim and determined that consideration of the remaining claims was unnecessary since that Order essentially granted all relief requested under the remaining claims as well. Since the initial ruling granted the entire requested relief and required the remaining issues be redone and/or reconsidered under a complete EIS, the Court concluded there was no need to reach the substantive issues raised in the remaining claims. See Footnote 9, page 5 where the court stated: "The Court limits its analysis to the NEPA claim because the alleged error in the Agency's process occurred at a procedural crossroad- the Agency could have opted either to obtain an EIS or issue a Finding of No Significant Impact. All other claimed error follows this decision; as a consequence, error at this step will require the process to begin anew. For Example, new appraisals will be required, which would moot Claims 1 and 2." It is hard to understand how, under this analysis; the Plaintiffs could not be the prevailing parties on this appeal, in that they obtained all of the requested relief. The Defendant argues that certain matters which the Plaintiff directed attorney time to in the underlying action were ultimately agreed and, therefore, the Plaintiff's attorney time in
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this regard was unnecessary. These issues go to what time was recoverable as reasonably necessary to the outcome, not to whether the Plaintiffs are the prevailing parties. The issues of the necessity and reasonableness of the time spent are addressed infra. III. THE GOVERNMENT HAS FAILED TO PROVE ITS POSITION WAS SUBSTANTIALLY JUSTIFIED The gravamen of the Government's argument on the substantial justification issue is stated at page 10 of its response, where it states the Government honestly believed it was doing the right thing although it apparently was not. The rest of the argument is essentially that the Government did a lot of things in analyzing the exchange, including public comment, appraisal, and evaluation of alternatives and decided to approve the exchange and not do an EIS. What the Government fails to do in its brief is to discuss the fact that the Court in its twenty-six page Memorandum Opinion makes point after point, where the valid comments of the public regarding substantial impacts of the decision were arbitrarily and capriciously ignored by the Forest Service in coming to its decision. The Government does not even mention the gravamen of the Court's decision that the totality of the record evidenced a predetermination of the matter by the Forest Service and therefore a repeated failure to take the required hard look at the relevant impacts and consequences of the exchange. The Government argues that the test of substantial justification requires an examination of the totality of the case. The Government here essentially argues that the plaintiffs won on a small point in the overall case, and the government won on most
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issues, i.e. the first five causes of action, and overall the Government's action was substantially justified. The Plaintiffs do not believe this holds up to scrutiny. The NEPA claim was central to the overall case. The Court stated in its opinion at page 19, "At the heart of this appeal is the Agency's decision not to obtain an EIS and instead to issue a finding of No Significant Impact." The Plaintiffs prevailed on this point, and the Court did not reach the remaining points as not necessary. The Court never ruled the Plaintiffs were incorrect on these points, or that the Government was substantially justified, but rather that because the court ruled for Plaintiffs on the "heart of the appeal" this ruling mooted the remaining issues. This was a complex exchange with many varied pieces of property with differing characteristics. Therefore the analysis of how the exchange of such a varied set of properties would impact the environment involved a wide variety of facts and differing areas of public interest. Much of the Plaintiffs briefing involved preliminary issues of standing, jurisdiction, standard of review and the facts. A description of the facts and how the Government made its decision in each area, and how these factors interrelated with applicable regulations, required significant time and attention in the briefing to factual details gleaned from a massive record. The Court's own opinion of 29 pages devoted 20 pages to these types of issues before even getting to analysis at page 20. This kind of analysis was virtually required by the nature and complexity of the case, and the argument that very little of the Plaintiff's complaint and briefing was devoted specifically to the NEPA argument ignores these obvious facts.

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Although the Government argues the FLPMA claims were irrelevant, the Government did not prevail on a single one of these claims. The Government admits the analysis of the exchange included an evaluation of how the exchange fit into the Forest Plan requirements. The Forest Plan was ultimately required by and promulgated under FLPMA. Its requirements were an essential part of the analysis under NEPA. In point after point raised by the Plaintiffs in their complaint and briefs, the Court agreed and ruled the Government had arbitrarily and capriciously ignored the significance of these points. At page 21 of its opinion, the Court found: "In its finding of No Significant Impact, the Agency deprecated- and in some instances ignored- numerous repetitive, corroborated actual or potential impacts on the human environment resulting from the loss of parcels N2, L3 and L5." Without belaboring the specifics, the Court agreed the Forest Service failed to give adequate consideration to the public comments, including failed to give adequate consideration to the impact of the loss of river frontage, the loss of flood plane, the loss of significant geologic structures, the impact on the Silver Thread Byway, loss of hunting, fishing and other recreational opportunities. The Court recognized that thel effect of the exchange on the local economy of Mineral County was exaggerated by the fact that lands acquired were far from those being lost from the forest and the Forest Service failed to acknowledge and account for these effects. The Plaintiffs raised all these points at the Agency level and on appeal.

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Additionally, the Plaintiffs had made the point that the Agency's internal correspondence showed a consistent lack of concern for the issues and even general predisposition to approve the appeal without the required actual objective analysis. The Court agreed and concluded in its opinion at page 24, "Finally, and most troubling, is the correspondence in the record that suggests that the approval decision and Finding of No Significant Impact were predetermined, and therefore unaffected by either the public comments or the EA." The Court was concerned the record indicated that the Forest Service's errors were not honest mistakes, but the result of a predetermination of the outcome regardless of the legal mandate to take a hard objective look and to give fair weight to the public comment in light of the public interest. The Forest Service's position in this case was unjustified at the Agency level below and in the District Court. Even at the oral argument, for example, the Government argued that the Scenic Byway designation was not relevant to the case, because the properties were outside the designated scenic corridor without providing any proof of this and in utter disregard of the fact that the EA makes reference to the properties being within the Scenic Byway view shed and making an analysis, albeit incorrect analysis, of the impact. In its brief, opposing this motion the government makes virtually no effort to address how its position was justified in light of the Court's actual rulings.

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The Government relies on Roanoke River Basin Ass'n v. Hudson, 991 F.2d 132, 138 (C.A.4 (N.C.), 1993) sited by the Forest Service at page 6 of its brief as support for its position that it was substantially justified in this case. In Roanoke, the Agency was evaluating which of two separate reservoir projects it should undertake, and thus evaluating the impacts of each. The Court specifically ruled the decision to issue permit was proper on the great majority of the issues. This was not the case here where the Government did not specifically win any issue, and the Court found a multiplicity of failures to recognize important impacts. In Roanoke, the court held the Agency had made an error it its application of a statistical model of impact on one specie of fish, the striped bass, and reversed for a correct analysis of that limited issue. The overall process was, however, sustained. The Court, on the Motion for Attorney Fees filed by the Petitioners, held the point on which the Petitioners had prevailed was a very small part of the overall analysis and that the Agency had been found reasonable in the vast majority of the analysis of a very complex project, and therefore in the totality of the case analysis the Government's position had been substantially justified. The Defendant relies on United States v. Charles Gyurman Land & Cattle Co., 836 F.2d 480, 485 (10th circuit 1987) for its argument that the Government was substantially justified. This case is particularly inapplicable to the case at bar. It dealt with how to assess a fee in a condemnation case where the only issue is the value of the property. The Court recognized that these types of cases are unique, because the nature of the dispute does not lend itself to any clear cut winner or loser.

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The Government cites Pierce v. Underwood, 487 U.S. 552 (1988) for the proposition that the Government was substantially justified, even though it lost the case. The case actually holds that for the Government's position to be substantially justified, it must be justified in the main. Here, the Court found the Government arbitrarily and capriciously ignoring a multiplicity of factors that were relevant, and the record showed almost an indifference to the facts amounting to a pre-determination of the outcome regardless of the legally required standard. In Pierce, the Supreme Court upheld the determination of the Circuit Court, that the Government's position had not been substantially justified. The Government correctly states the Pierce Court established a three prong test. According to that test, the Memorandum Opinion shows the Government failed parts one and three of the test. That is, the Government misstated the facts and failed to correctly apply the facts to the law. The government has failed to establish it was substantially justified in its position at any level of this action. The Government argues the Plaintiffs' arguments regarding the Appraisals were not reasonable, and the Government's position was substantially justified. As has been said, the Court did not rule against the Plaintiffs on these issues, only that the issues were rendered moot and, therefore, analysis unnecessary by the ruling on the NEPA issue. The Plaintiffs showed repeatedly how even though the appraisals were not timely produced, and they were not based on more readily available comparables, even though they were available, and obvious significant facts were either misstated or

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ignored all to the effect of reducing the value of the Government properties and increasing the value of the non-federal parcels. The Government at one point in its Responsive Brief, as it did repeatedly in the proceeding, claimed that Powers had pointed out the Plaintiff, Antlers, was a potential purchaser of N2 or at least a portion thereof. FLPMA requires for exchange purposes that Government properties be valued as if they were private and available for purchase. This information was offered for the limited issue of the value of the property for exchange purposes. The Government appraisal had concluded that only the Proponent, Broadacres, bordered the property, N2, and, therefore, no one else would be a potential purchaser and, therefore, the value was low for exchange purposes. Antlers offered the undeniable obvious fact that Antlers borders the property, its guests use the property and, for valuation purposes only, Antlers was an obvious potential buyer. The Government continues to try to unreasonably distort the facts of the case for no purpose other than prejudice. In general, the Plaintiffs arguments that were not specifically ruled upon were a small part of the case. As the Court pointed out in the Opinion, the Plaintiffs won on the heart of the case. IV. PLAINTIFFS ATTORNEYS' HOURS ARE REASONABLE A. PAYMENTS BY A CLIENT TO THE LAWYER DO NOT ALTER THE AMOUNTS CLAIMED

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The Defendant claims the Plaintiff did not account for the fact that some monies were paid during the pendency of the action to Powers for costs expended and time, and this should somehow change the amount claimed. No explanation for the claim is made by the Defendant at footnote 18 of page 16 of its brief. The EAJA provides for reimbursement of attorney time at a predetermined rate of $125 per hour. That rate may be increased by an inflation factor based on the year that the service is rendered. Whether the attorney was actually paid for the time or not and at what rate has no bearing on the calculation and does not affect the amount recoverable. EAJA does not provide for interest on the fees. That is, the fee allowable for recovery is fixed based on the time spent and the date the time was spent. No interest is allowed or claimed here on that amount. Therefore, whether Powers received any reimbursement for any time or costs, does not affect the analysis of what is ultimately recoverable under EAJA. If Powers had been paid for every minute of time by a client, or if he received nothing along the way and was strictly working on contingency, then the analysis of the amount recoverable for attorney fees or expenses would not be affected. Any payments recovered would be returned to the person paying, and the net only goes to the lawyer. B. TIME SPENT ADDRESSING THE INTERVENERS' MOTIONS AND BRIEFS IS RECOVERABLE The Government claims that time spent addressing the Interveners' Briefs is not recoverable. There is no basis for this claim. The Interveners were the proponents of the exchange at the agency level. They would not have been in the case but for the Forest Service having approved the exchange in the first instance.
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The Interveners Motion to Intervene was not opposed but rather supported by the Government. The Interveners did not raise any issues distinct from those raised by the Forest Service; rather, the Government and the Interveners worked in tandem in this case. The Plaintiffs were required to spend time addressing the Interveners' Briefs just as the responded to the Governments in order to prevail on the issues raised by the Government, since they worked together and raised similar issues. As the attached Supplemental Declaration of Powers shows, the Government deferred to the Interveners/Proponents in this litigation at all phases. Even though, for example, the Government had the authority under the APA to stay the exchange pending this appeal, the Forest Service refused to do so without the agreement of the Interveners. (Supplemental Declaration of Powers, Exhibit I attached). C. TIME SPENT ON THE GOVERNMENT'S APPEAL TO THE 10TH CIRCUIT IS RECOVERABLE The Government claims the Plaintiffs' attorney time spent on the Government's appeal of this Court's ruling to the 10th Circuit Court of Appeals is not recoverable, because the Order dismissing the appeal precludes the same. Several times in its briief the government claims the Order of dismissal for the 10th Circuit states the parties were to bear their own "attorney fees and costs". This is not correct. The Order of Dismissal and Mandate of the United States Court of Appeals for the 10th Circuit of March 3, 2008, which is attached to the Government's Response as Exhibit B, states that "upon consideration of the Unopposed Motion to Voluntarily Dismiss the captioned appeal, this appeal is dismissed...Each party will bear its own costs on appeal." The Order only
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states each party will bear its own costs; it does not reference attorney fees. It also states it is based on the Unopposed Motion to Dismiss. A copy of that Motion filed by the Federal Defendants-Appellants is attached and marked Exhibit "J". That Motion states at the top of page 2 thereof, "This motion is not intended to admit nor preclude liability for attorneys' fees." All fees and costs should be determined by the Court of

primary jurisdiction, that is the District Court, as the cases so indicate; See Pierce, supra. Mr. Brabender, Counsel for the United States on Appeal to the 10th Circuit, attached an affidavit Exhibit C to the Defendant's Response, claiming that the majority of the time on appeal was taken by negotiations between the Interveners and the Plaintiffs as part of a Mediation process Ordered by the 10th Circuit in all cases on appeal. The United States filed the appeal, and the Interveners followed suit later. As the record shows and as indicated in the attached Supplemental Declaration of Charles C. Powers, the Government has refused to take any position in this matter at any level without the agreement of the Interveners. Thus, all time spent dealing with the Interveners, including in an effort to settle during appeal, was occasioned by the steadfast position of the United States in the first instance. While it is true much time was spent on appeal to the 10th Circuit trying to settle the matter, this in no way means the time was not reasonably spent in pursuit of the ultimate goal of resolving the dispute. Mediation and settlement of cases is a goal which this Court and the 10th Circuit promote in order to increase the efficient and orderly disposition of cases in the best interests of justice. To deny attorney fees under
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applicable attorney fees statues, including the EAJA, to the prevailing party would be a disincentive to attorneys to mediate and would undermine the policy of the Court to foster settlement. The time is relevant, reasonable and necessary to the orderly disposition of this matter and should be awarded to the Plaintiffs under the EAJA. D. PLAINTIFFS ATTORNEY TIME SPENT RESPONDING TO THE INTERVENERS' FILINGS SHOULD BE REIMBURSED UNDER THE EAJA As the Plaintiff has pointed out, the Forest Service and their Justice Department Attorneys have been insistent that it will take no action regarding this exchange without the approval of the Intervener/Proponents of the exchange. Plaintiffs do not know the true origin of this policy, but the course of this matter and the Government's actions have demonstrated the truth of this statement. Therefore, the time spent by the Plaintiffs' attorney attempting to settle with the Intervener and addressing the Intervener's arguments and pleadings has been largely caused by the Forest Service's position in this matter. (See Supplemental Declaration of Powers Attached Exhibit I). The Government cites Love v. Reilly, 924 F.2d 1492, 1496 (9th Cir. 1991) for the proposition that time spent responding to briefs, motions, pleadings and other filings of Interveners or corresponding with counsel of the Interveners is not recoverable for the Government under the EAJA by the Plaintiffs in this action. Love does not support the Government's position here. Love holds only that time spent opposing Interveners' motions is not recoverable by the opposing party from the Government only where the government did not participate or support the position of the Intervener.

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A review of the Defendant's argument on this subject shows the Defendant simply objects to the time because it included time spent in telephone calls to the Intervener's counsel or reviewing and responding to the Interveners' filings in the case. Nowhere does the Government contend that any of these things involved issues not supported by the Government in the case. A review of the Court filings in fact shows there was nothing the Intervener did that was not supported expressly by the Forest Service or that was contrary to the Forest Service's position. The Interveners took no position in this matter that was separate and apart from the arguments made by the Government in its own motions, briefs and the like. The Government's argument on this point is not supported by the facts or the law. E. THE ISSUES, ON WHICH PLAINTIFFS EXPRESSLY PREVAILED, WERE THE HEART OF THE PLAINTIFFS APPEAL. The Defendant argues various points in the Response that the issue on which the Plaintiffs prevailed was a small part of the case. The Defendant analyzes the complaint and concludes the NEPA claim is a small part of the complaint. Neither of these assertions is correct. Starting with the analysis of the Second Amended Complaint (Document # 42) on which the case was decided, the Defendant ignores the fact that much of the allegations are common to all counts. The "Caption", "Introduction", "Jurisdiction and Venue", "Parties" and "Standing" sections of the Complaint are common to all counts and are required in any complaint of this type. These allegations encompass the initial five pages and first 15 paragraphs of the Second Amended Complaint. This case was very
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fact intensive. The facts, which are common to all counts, encompass three and one half pages and paragraphs 16 through 33 inclusive of the Second Amended Complaint. Following the "Facts" are three short Counts: Count I alleges the parcels were not of equivalent value as required under FLPMA; Count II alleges a procedural violation of FLPMA and the Freedom of Information Act, in that the government failed to allow enough public input into the appraisals and evaluations of the appraisals; and Count III alleges denial of appeal rights, specifically by the government entering a binding agreement to exchange prematurely which improperly influenced the fair consideration of the Plaintiffs' intra agency appeal to the Forest Service Regional Office. These counts encompass less than two and one half pages of the complaint and 11 paragraphs from paragraph 34 though 45. The Court did not rule on these matters and considered the issues raised as mooted by the ruling on the NEPA claim. Count IV alleges violations of the Federal Land Policy Management Act which requires exchanges to be in the public interest. It encompasses paragraphs 49 through 55 of the Complaint, or two pages. In furtherance of that main allegation, it alleges that the exchange does not adhere to the Forest Management Plan for the Rio Grande National Forest; specifically the requirements of the Plan for land exchanges, and the substantive goals and standards of the Forest Plan. The environmental assessment must and did evaluate the exchange in part based on its conformity or not, its effect upon the standards and the goal for the applicable forest plan and the exchange criterion within the plan. By the Government's own admission, these issues were central to the issues being evaluated by the EA (See Government's Response, Point III. A.1. at
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pages 9 and 10). Virtually every significant allegation of the Plaintiffs' complaint Count IV is mentioned by the Court in its Memorandum Opinion in some regard as a failing of the Government in its overall analysis of the Exchange. Count V, as the Government points out, is a claim for violation of NEPA for failure to take the required hard look at the environmental impacts of the exchange by performing an Environmental Impact Statement (EIS). While it encompasses only paragraphs 56 through 64 of the Complaint, it incorporates by reference all preceding paragraphs and builds on those allegations. As the Court's Opinion shows, much of the allegations of the entire complaint were considered (with the exception of the allegations of Counts I, II and III, which the Court considered Moot). The Court's Memorandum Opinion evaluated the important environmental impacts that the Forest Service failed to give adequate consideration, including impact on the view shed, impact on hunting, fishing and other recreation, loss of Rio Grande River and river access, loss of significant geologic structures and opportunities related thereto impact on the local economy. As the Court stated, the NEPA claim was the heart of the Plaintiffs' case, and on that the Plaintiffs overwhelmingly prevailed. Much of the briefing took the same pattern as the analysis of the complaint with the majority of the briefing being devoted to issues common to all counts, i.e. parties, standing, venue, etc., and the facts as well as the interrelationship to the various Forest Plan requirements, other applicable laws such as the Scenic Byway Act and the requirements of the Forest Plan as a framework for analysis of environmental impact of the exchange as a whole.
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F. PLAINTIFFS' ATTORNEYS' BILLING PRACTICES ARE APPROPRIATE The Government criticizes the billing practices of the Claimants' attorneys on several grounds. These include time spent on matters that are allegedly ministerial and not attorney time, time spent on matters that are allegedly irrelevant and block billing. In regard to the allegedly ministerial matters, this argument makes no sense. While it is true that ministerial employees spent time on letters, faxes, memos to file and the like, it is also true that lawyers do as well. These things do not generally take place in regard to litigation matters without some time having been spent by the lawyer on the substance of the matter. The idea that things happen in litigation matters purely generated and completed by clerks without the involvement of a responsible lawyer is unknown to the Plaintiffs' attorney. The time appearing on the Plaintiffs' attorney's time records represents attorney time only, with the exception of the erroneous inclusion of the trip to Denver for filing and service which has been deleted. Affidavits of the attorneys for the Plaintiffs state under oath that the time spent was relevant and reasonably necessary. The Court is very familiar with this case, as is evident from the Courts Opinion, and counsel believes the Court can make a reasonable and prudent judgment as to the necessity of the time spent. The Government claims that private parties require their lawyers to break down their time spent on their bills to what issue or to what claim the time pertains. For example, if an attorney drafts a complaint, there should be an itemization of the time spent on Jurisdiction, Venue, Standing, Facts, and time spent on each individual claim. This may be the standard for Government lawyers or perhaps the standard for a Motion
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for Attorney Fees, but it's not the way private attorneys spend their client's time. The Complaint speaks for itself as to how the time was spent. Any time indicated in the record can be analyzed in light of the work product that appears in the record. In any event, the block billing issue pertains to the situation where there were limited claims on which the prevailing party prevailed and others where the prevailing party did not prevail. In this case, the Plaintiffs received all the relief they requested. Certain issues were not reached as moot, but the government did not affirmatively prevail on any issue. On the only significant issue on which the Plaintiffs did not specifically prevail, that is the insufficiency of the appraisals, the Court specifically mentioned in its Opinion that the appraisals would have to be redone as a result of the Memorandum Order, that therefore the Plaintiffs were receiving the requested relief in Counts I and II, and therefore the issues were moot. In regard to the adequacy of the appraisals, the Interveners and the Government argued initially that the Plaintiffs had no standing to contest the appraisals, as this is a matter strictly between the Government and the private parties to the exchange. The Government and the Interveners filed Motions to dismiss on these grounds, but the Plaintiffs prevailed. Judge Kane denied the Motions to dismiss and upheld the Plaintiffs right to contest the valuation of the exchange properties as a matter of valid public interest and in so doing set precedent in the Colorado District Court and the 10th Circuit (See Order at Court Document #'s 78 and 79). This was the relief in this regard that the Plaintiffs requested. On the issue that the Plaintiffs did not receive a open minded appeal because the Forest Service signed a
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binding exchange agreement before the appeal was even filed rather than after it was determined, the Court did not reach this issue but did find as a matter of fact that the record evidenced overall a predetermination of the issues and an overall failure of the Government to give fair consideration to the publics views. Plaintiffs did in fact prevail on the essential point raised by this count. At one point in its Response, the Government argues that Chris Krupp billed for time spent in an unrelated case, Desert Citizens, because his time record makes reference to that case. The time, in fact, relates to this case, and Desert Citizens was merely precedent being discussed. The time legitimately related to Motions to Dismiss made by both the Government and the Interveners which, after briefing on the Desert Citizens case, were denied. (See Supplemental Affidavit of Chris Krupp attached as Exhibit L). The time was properly devoted to this case and was directly related to Plaintiffs success in the overall case.

G. POWERS BILLING RATE IS REASOANBLE The Defendant objects to Powers' billing rate of $200.00 per hour as unreasonable. The Defendant's expert, Patricia A. Thatcher, who reviewed and commented upon the Plaintiffs' attorney's billing practices, admitted she billed $210 per hour just to review the billing in this matter. This is more per hour than claimed by Powers for his time and is evidence his rate is reasonable.

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The Defendant attached the Opinion of the 10th Circuit in Biodiversity Conservation Alliance v. Richard Stem, etc. et al March 18, 2008, attached to Defendant's Response as Exhibit A, apparently issued during the time Counsel was preparing the Motion for attorney fees. The opinion of Judge Kane was reversed on the point that the Plaintiffs in that case were not the prevailing party since the matter was settled. The point the Plaintiffs sited the case was not addressed, which was that Judge Kane approved a much greater fee than requested in this case for a much smaller and less complicated matter in biodiversity. The point still stands. In Sweetwater Wilderness Lodge v. The United States, United States Court of Claims case No. 02-1795, filed February 9, 2007, the Court of Claims approved a fee of $279,127.66 pursuant to the EAJA in a case over a single bridge over a single road granting access to a Wilderness Lodge. H. PLAINTIFFS ARE ENTITLED TO RECOVER FEES, EVEN THOUGH CHARLES C. POWERS, LEAD COUNSEL OF RECORD, WAS ALSO A PARTY TO THE LITIGATION IN CHIEF While Charles C. Powers did personally object to the Exchange at the Agency level and also did appear as a Plaintiff in this action, he did also appear as attorney of record for other parties who seek fees, including, Antlers Rio Grande Lodge, Inc. and San Luis Valley Ecosystem Counsel, Inc. (SLVEC). SLVEC is an independent non-profit public interest entity with many members throughout the San Luis Valley with a direct interest in the Rio Grande National Forest.
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That entity has engaged in other public interest litigation and hired other lawyers in which it has been successful. It had considerable interest in this matter and would have retained other counsel if any other more qualified counsel had been available. The record shows that SLVEC paid Powers at least $4,700.00 during the course of this litigation as attorney for the entity. SLVEC is a truly independent entity with no ties to Powers and who represented the public interest at large and which was directly interested in this litigation and considered Powers an appropriate and competent attorney to represent that entity; (See Declaration of Chris Canaly attached as Exhibit K). In Pierce, the Supreme Court stated, The EAJA was enacted to address Congress' concerns with civil actions in which the government is litigating against private parties whose resources are substantially outweighed by those of the government. In the absence of a potential right for reimbursement of litigation expenses, a private litigant might be coerced to agree to orders that represent an unreasonable exercise of Government power and reflect an erroneous or inaccurate application of an Agency rule of general application. It was anticipated that, by providing a mechanism for leveling the playing field, not only would access by private litigants to the Courts and administrative proceedings be facilitated, but also the public interest would be served by insuring, through a more balanced adversarial process, that only reasonable governmental positions on policy and rules would be enforced. See Jean, 496 U.S. at 163 n. 11, 165 n. 14, 110 S. Ct. at 2322 n. 14. Moreover, it is clear that Congress intended to address governmental misconduct whether that conduct preceded litigation, compelling a private party to take legal action, or occurred in the
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context of an ongoing case through prosecution or defense of unreasonable positions. Thompson v. Sullivan, 980 F.2d 280, 281-82 (4th Cir.1992) (citing Jean, 496 U.S. at 158-60, 110 S. Ct. at 2318-20); Crawford v. Sullivan, 935 F.2d 655, 656-57 (4th Cir.1991) (same). The Defendant cites Kay v Ehler, 499 U.S. 432 (1991) for the proposition that the Court cannot award any attorney fees for the time Powers spent in this litigation. That case interpreted the attorney fee provision of 42 USC 1988, not the statue before this Court. That provision applies to the Civil Rights statues, which allow a remedy to individuals for violation of their personal rights. The EAJA, on the other hand, is the attorney fees and cost statute applicable to this case. Its provisions are mandatory where the motion is timely filed and the Government's position was not substantially justified. It was not enacted to facilitate litigants to protect their own rights (although that certainly was a purpose), but, rather, the larger objective of providing some check on substantially unjustified government decisions in a wide variety of areas for the protection of the public interest at large. While all the Plaintiffs in this case suffered some loss by the action in question, that is lack of access to the National Forest, this loss was not, absent the EAJA, sufficient for them to have engaged in such an onerous undertaking as this litigation. In addition, In Kay, the Court was clear that the essence of the attorney fees provision in that case was the existence of an attorney-client relationship and a paying client. In this case, it is undisputed there was such a relationship between Powers and SLVEC. Also, the Court in Kay was concerned with the existence of an objective
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relationship between attorney and client. In this case, the Plaintiffs made a compromise by having a consultant with experience, Mr. Krupp, while having Powers do the lead counsel work, thereby being able to handle the case and have some independent objectivity as well. SLVEC would not have been able to present the interests of its constituents, but for the representation of that entity by Powers. Lastly, the EAJA provides for an enhancement factor where there are exceptional circumstances. The Courts, as the Defendant points out, have concluded that this does not mean complexity of the case or a contingency factor, but rather where the party has been unable to obtain counsel otherwise. This has been the case here. The Plaintiffs could not afford to hire counsel on a pay as you go basis, and no counsel would take the case on a contingency to accept whatever the EAJA might provide. In Demarest v. Manspeaker, 948 F.2d 655, 655-56 (10th Cir. 1991); the Court stated: "The language of the statute indicates that Congress intended for pro se litigants to have retained an attorney in order to recover fees under the statute. See Merrell, 809 F.2d at 642. Moreover, the legislative history supports limiting the award of attorney fees to litigants who have retained an attorney. See H.R. Rep. No. 1418, 96th Cong., 2d Sess. 11, reprinted in 1980 Code Cong. & Adm. News 4984, 4988-89." A primary purpose in enacting the EAJA, and particularly section 2412(d)(1)(A), was to remove the obstacle of litigation expenses, including attorneys fees, so that litigants may challenge unreasonable governmental action and vindicate their rights in Court. Crooker, 763 F.2d at 17." Demarest at page 655.

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Demarest was not an attorney nor did he represent other litigants. In this case, Powers retained other attorneys to represent him (Rowe and Krupp) and to aid him in an objective approach to the case. Whether Krupp made an entry of appearance or not is immaterial to the fact that his time was reasonably related to Powers making an objective, professional and successful presentation. Under all the cases on the issue, the time of Rowe and Krupp are proper and recoverable. Powers in turn represented other legitimate parties with an interest in the litigation, notably SLVEC, a valid public interest 501 (c)(3) organization with a history of competent advocacy of the public interest before this Court. SLVEC was a valid paying client of Powers. (See Declaration of Chris Canaly, Director of SLVEC attached Exhibit K). This satisfies the test of recoverability of fees in Demarest. In Naekel v. Department of Transportation, 845 F.2d 976, 981 (Fed. Cir. 1988); the Court stated, "It is unnecessary for a complainant who is an attorney acting pro se to have actually incurred attorneys fees in order to be eligible for an award of same." Citing Cox v. United States Dep't of Justice, 195 U.S. App. D.C. 189, 601 F.2d 1, 5 (D.C. Cir. 1979). It is reasonable to assume that an attorney incurs loss of time and therefore fees otherwise recoverable by having to engage in litigation caused by unlawful action of the government. The Plaintiffs, including Powers, should be entitled to recover for the time of Rowe and Krupp. SLVEC should be entitled to recover for the time of Powers, who successfully represented the interests of its several thousand members in addition to his own personal interest and that of Antlers Rio Grande Lodge, Inc.
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I. PLAINTIFF POWERS WITHDRAWS PRE-SUIT TIME AND TRAVEL FOR SERVICE OF PROCESS Plaintiff Powers concedes that case law indicates pre-suit time at the Agency level may not be recoverable under the EAJA. Exhibit E to Plaintiffs Motion for Attorney Fees shows 48.6 hours in 2001, 3.7 hours in 2002, 3.1 hours in 2003 which were presuit. Suit was filed in 2004. Time spent at the Agency level in 2004 up to and including May 23, 2004 totals 33.1 hours. Thereafter time spent was in preparing the Complaint and subsequent litigation matters (Exhibit B to Plaintiffs Motion for Attorney Fee). Therefore total pre-suit Agency related time for Powers was 88.5 hours. Total time from preparation of the Complaint through the Motion for Attorney Fees was 517.5 hours (total 606 hours less 88.5 pre-suit agency related hours). The Plaintiff also

acknowledges an error in posting the travel to Denver for filing the Complaint and Service on the Attorney General. This time was necessary, as is indicated in attached Supplemental Declaration of Powers, as time was of the essence, but the service was provided by a courier and not Powers and was inadvertently included as attorney time. This eliminates another twelve (12 ) hours of attorney time reducing the total to 505.5 total hours for Powers related to the litigation up to and including the Motion for Attorney Fees. At the $125 rate under EAJA adjusted by the inflation factor as described on

Exhibit E to the Plaintiffs Motion for Attorney Fess, this would reduce the amount of Powers' fees by to $82,890.70 and at $200 per hour rate Powers claims as a special circumstance, this equates to $101,100.00 for Powers time. The amounts claimed by Mr. Rowe and Mr. Krupp are unaffected by this.

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WHEREFORE, Plaintiffs respectfully request the Court grant the Motion for Attorney Fees and Costs as follows: 1. Award Plaintiffs fees of Gordon H. Rowe, III of $3.487.50; 2. Award Plaintiffs fees of Chris Krupp of $9,687.40; 3. Award Plaintiffs fees of Powers of $101,100.00; 5. Award Plaintiffs costs of $4,756.63

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