Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01071-MSK

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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, Nancy Albright, James Martin, Jerre Guthals, Antlers Rio Grande Lodge, Inc., a Colorado corporation, and Charles C. Powers, Plaintiff(s), v. United States Forest Service, Defendant(s) and ALXCHNG, LLC, a Texas limited liability company, CNXCHNG, LLC, a Texas limited liability company and Rio Oxbow Ranch, Inc., a Colorado corporation, Interveners

DECLARATION OF PATRICIA A. THATCHER

I, Patricia A. Thatcher, respectfully submit the following declaration, pursuant to 28 U.S.C. § 1746: 1. I am an attorney licensed to practice law in the courts of the State of Colorado,

and have been admitted to practice in, and am in good standing with, the United States District Court for the District of Colorado, and the United States Court of Appeals for the Tenth Circuit.

EXHIBIT D 1

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2.

Attorney Terry Fox of the Office of the United States Attorney for the District of

Colorado has asked me to examine the motion for attorneys' fees and costs filed by Plaintiffs in this case, San Luis Valley Ecosystem Counsel, Antlers Rio Grande Lodge, Inc., and Charles C. Powers ("Plaintiffs"), and to provide an opinion regarding the reasonableness of the number of hours and hourly rate requested by Plaintiffs. Prior to being contacted by Ms. Fox, to the best of my recollection, have not worked with any of the attorneys or principal individuals or companies involved in this case. 3. I have been engaged in the private practice of law in the area of commercial and

real property litigation for the past 15 years in state and federal courts in Colorado. Approximately 70% of cases on which have worked have been filed in the courts in the Front Range, and the remainder have been filed in various state courts in rural or mountain counties of Colorado. During my legal career, I have worked on or acted as lead counsel in cases involving class action attorneys' fee awards (using lodestar and percentage methods of calculation), and attorneys' fee and costs requests under both contractual fee-shifting and statutory attorneys' fees provisions. In those cases, I have opposed and defended the reasonableness of the claimed attorneys' fees and costs. In 2005, I successfully prosecuted a private arbitration on behalf of a Denver law firm seeking over $100,000 in attorneys' fees from a disgruntled client and was awarded approximately 85% of the attorneys' fees and costs sought. Also in 2005, I obtained an award of attorneys' fees from the Denver District Court under Colorado's groundless and frivolous statute, C.R.S. §13-21-102. My rate of compensation for services performed at the request of the U.S. Attorney is $210/hour for my review of the case file, analysis, examination and testimony. Attached hereto as Exhibit A is my curriculum vitae, which includes my limited

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publications. I have not testified and/or submitted a declaration as an expert on the reasonableness of attorneys' fees and costs in the preceding four years. 4. The scope of my examination includes review of the documents connected with

and court filings in the civil action captioned San Luis Valley Ecosystems Counsel, et al. v. United States Forest Service, et al., Case No. 04-cv-01071-MSK filed in the United States District Court for the District of Colorado (the "District Court"), and assessment of the attorneys' fees and costs request made pursuant to 28 U.S.C. § 2412 ("EAJA") by Plaintiffs for reasonableness. I note that there are several areas for which Plaintiffs have requested an award of attorneys' fees and costs, which this Court may address and eliminate, such as amounts incurred for (i) the administrative proceedings before the United States Forest Service (the "Forest Service"), (ii) the issues raised by the Interveners, and (iii) the appeal to the Tenth Circuit Court of Appeals (which was voluntarily dismissed with an order for the parties to pay their own attorneys' fees and costs). I have not been asked, however, to evaluate the merits of whether Plaintiffs are entitled to attorneys fees and costs under EAJA guidelines or the merits of Plaintiffs' claims or the Forest Service's defenses. 5. As background for my examination and analysis, I reviewed (i) the index of the

administrative record and portions of the administrative record, including all of the documents submitted by the Antlers Rio Grand Lodge, Inc. and/or Charles C. Powers, some of the documents submitted by the San Luis Valley Ecosystem Counsel to the Forest Service during the administrative proceedings, and the Decision Notice of the Forest Service; (ii) the District Court's docket of the case from May 27, 2004 through April 3, 2008; (iii) the pleadings, principal motions, responses and replies, and briefs filed in conjunction therewith; (iv) the appeal briefs filed by Plaintiffs and the Forest Service regarding the Decision Notice; (v) all orders

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issued by the District Court and the Tenth Circuit Court of Appeals; (vi) Plaintiffs' Motion For Attorney Fees and Costs and Memorandum of Law In Support Thereof ("Plaintiffs' Motion") and all exhibits thereto; and (vii) EAJA, and several cases interpreting EAJA, including Hensley v. Eckerhart, 461 U.S. 424 (1983). 6. In addition to my review of the above-described documents, I discussed with Ms.

Fox the procedural background of the case, the subject matter of the Decision Notice and its subsequent appeal to the District Court filed in May 2004, and the appeal of the District Court's decision to the Tenth Circuit. 7. The Plaintiffs request fees for hourly legal services performed by three attorneys,

Charles C. Powers, Christopher J. Krupp and Gordon H. Rowe, in the respective total fee amounts of $121,200.00, $9,687.40, and $3,478.50, for a grand total of $134,365.90. Mr. Powers calculated his total fees by multiplying the hours expended by $200.00, which hourly rate is above the base EAJA rate of $125 per hour, even with adjustments for cost of living. I have reviewed EAJA and cases interpreting that portion of the statute which allows a court to exceed the statutory cap upon a showing of a "special factor." It is my understanding that an enhancement of the base EAJA rate may be justified upon a showing of a "special factor," such as the performance of legal services which require specialized training and expertise unattainable by a competent attorney through diligent study of the governing legal principles, such as patent law litigation and foreign law or language. Here, I have not seen anything in the documents which I have reviewed that would lead me to conclude that the legal services provided by Mr. Powers required specialized training and expertise not otherwise attainable by a competent attorney. While environmental law may be considered a niche practice area, the federal environmental statutes and regulations at issue in this case are readily available and

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understandable, and a vast amount of case law exists to guide the interpretation and application of those laws. Plaintiffs anecdotally cite to a "qualified attorney with special expertise" who demanded $320/hour, a rate which Plaintiffs could not afford. Plaintiffs' Motion, p. 7. Referring to one attorney with a rate well in excess of the EAJA rates does not compel the conclusion that there was an unavailability of skilled practitioners in this area who would work at a rate commensurate with EAJA's base rate with cost of living increases. Notably, there were no less than 95 attorneys listed in the 2005 Colorado Legal Directory under the practice area of environmental law throughout Colorado. 8. A detailed review of Mr. Powers' time records reveals two types of billing

inefficiencies which call into question the reasonableness of the fees charged by him in this case. First, the numerous descriptions of Mr. Powers' services appear in a block billing format, e.g., "Research Complaint to District Court," "Research, draft & conference with Kris Krupp," "Order on Motion," "Research," "Drafting Brief," "Drafting Complaint and Summons." Such vague and non-specific task descriptions make it difficult to determine how much time he spent on factual or legal issues or claims, the fees for which cannot be recovered under EAJA, or was unnecessary or duplicative of the work performed by Mr. Krupp or Mr. Rowe. Without more detailed descriptions, it is nearly impossible to discern how much time Mr. Powers spent on issues and claims upon which he did not prevail or issues and claims against parties other than the Forest Service. Second, it appears from a number of Mr. Powers' task entries that he performed almost all of the services provided to Plaintiffs, without clerical or law clerk assistance. In addition to spending a total of an hour on the civil cover sheet (see entries on 5/26/04 and 5/27/04 on Exhibit B to Plaintiffs' Motion) which is an disproportionate amount of time to check boxes in the civil cover sheet form, various entries show Mr. Powers carrying out

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tasks which, in reasonable billing judgment, should not be charged as legal services, e.g., "Forward color photos to counsel," "Fax to [various]," "Uploading Pictures," "obtaining prints of online photos," "Send briefs to Public Interest lawyer Bartlett in Durango." While these obvious attorney billing entries appear to be administrative, non-legal tasks, Mr. Powers' block billing format makes it difficult, if not impossible, to tell how much time he spent on providing legal services and how much time he spent on administrative tasks. 9. Overall, the fees charged by Plaintiffs' attorneys for their pursuit of the appeal of

the Forest Services' decision in the District Court, based on my experience, is on the heavy side. All tolled, the three attorneys spent 542.2 hours from the drafting of the complaint filed in the District Court to date, in a case in which no discovery was conducted, no trial was held, and only three hearings of less than two hours each occurred. Some examples of unreasonable or disproportionate hour and costs charges by Mr. Powers or his co-counsel for discrete tasks, in my opinion, are as follows: a. In May 2004, Mr. Powers charges a total of 12 hours (or $2,400.00) to

"Travel to Denver to serve Summons and Complaint and file with Court," and an additional 1.5 hours ($300.00) to "Serve copy of Summons and Complaint to US Forest Service in Monte Vista." For these two trips, Mr. Powers charges for mileage in the amount of $102.04 (to Denver) and $23.04 (to Monte Vista). After driving to Denver and Monte Vista to serve the complaint on the Forest Service, according to Mr. Powers' billing records, he then charges $67.84 to "mail the complaint & Injunction to US Attorney & Gregory Langham." See Exhibit B to Plaintiffs' Motion. Mr. Powers' charges of $1,200.00 to travel to Denver to "file and serve" the complaint and $300 to travel to Monte Vista to serve the complaint were entirely unnecessary and excessive. Plaintiffs could have filed their complaint electronically via the District Court

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ECF Document Filing System (free) or by U.S. mail (cost of U.S. postage). With regard to service of the Summons and Complaint on the Forest Service, Plaintiffs could have availed themselves to the provisions of Rule 4(f) of the Federal Rules of Civil Procedure and requested that the Forest Service accept service of the summons and complaint. Spending the time and money to do so by driving from Creede, Colorado to Denver or Monte Vista is simply not reasonable. In view of these billing entries and others, one may question Mr. Powers' general billing judgment and the level of client oversight of Mr. Powers' billing entries in a case in which he is a primary plaintiff1 and seems to have a direct pecuniary interest. In addition to practicing law in Colorado and Florida for 30 years, Mr. Powers is also the President of Plaintiff Antlers Rio Grande Lodge, Inc. ("Antlers"), which owns and operates a lodge and restaurant on the property on which Mr. Powers lives and which borders one of the federal parcels involved in the land exchange. In their Initial Brief (Docket No. 82), Plaintiffs admit that in addition to the corporate proponent of the land exchange being affiliated with Antlers' neighboring competitor, the land exchange will result in Antlers losing one-third of its border with the national forest, thus denying access to Antlers' guests to the forest. Initial Brief, pp. 2-3 & 20. "[The] loss of an entire boundary with RGNF property by Antlers will diminish the overall value of the Antlers' property." Id. Mr. Powers' personal and financial interest in the outcome of this litigation, coupled with the relatively few communications with the other Plaintiffs (i.e., Mr. Powers' "clients") among a multitude of time entries for communications with persons other than his clients, calls into question whether the apparent lack of client oversight resulted in unreasonable or excessive billing on this case.

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It is interesting to note that only three of the six original plaintiffs have filed Plaintiffs' Motion, two of which are Mr. Powers himself and his corporation, Antlers.

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b.

According to the billing records attached to Plaintiffs' Motion, Mr.

Powers, Mr. Rowe and Mr. Krupp, attorneys who have been licensed to practice law for a collective period of 64 years, spent a total of 44.6 hours drafting the initial complaint in this case, after Mr. Powers already had spent 88.7 hours in the administrative proceedings before the Forest Service, inclusive of 12.5 hours to prepare an administrative appeal of the Decision Notice. While the facts and claims stated in Plaintiffs' complaint are not necessarily identical to those involved in the administrative proceedings, they are so similar in nature and concept that an additional 44.6 hours to draft the initial complaint seems to be on the high side for this task. In my experience in cases involving federal statutory and regulatory schemes, many attorneys are able to draft an initial pleading of similar breadth to the complaint here, even without the benefit of an underlying administrative process involving similar facts and legal issues, in less time (though not infrequently deducting time for learning about a new area of the law of which we may not be familiar and therefore, not inclined to charge the client) than that expended collectively by Messrs. Powers, Rowe and Krupp. c. In reviewing the motions, responses, and replies filed by Plaintiffs and the

Forest Service, along with the District Court docket, it is apparent that notwithstanding the requirements of D.C.COLO.LCivR 7.1(A) and this Court's practice standards, Plaintiffs' counsel regularly did not confer with counsel for the Forest Service prior to filing motions in this case. The court, on at least two occasions, noticed the lack of compliance with Local Rule 7.1(A) and required Plaintiffs to confer (see Docket Nos. 91 and 133). In one instance, Plaintiffs filed a set of affidavits to support their position in the appeal without conferring with counsel for the Forest Service. When the court admonished Plaintiffs for filing the affidavits without conferring with

other counsel, the parties, within days, entered into a stipulation regarding the use of the

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affidavits in the appeal. These circumstances call into question whether the amounts charged for this exercise could have been avoided or greatly reduced if Plaintiffs' counsel had complied with the requirement to confer in Local Rule 7.1(A) and this Court's practice standards. Based on my conversations with Ms. Fox, had Plaintiffs conferred with counsel for the Forest Service regarding other motions filed by Plaintiffs (e.g., the Motion for TRO/Preliminary Injunction, Docket No. 3 , Motion to Conduct Discovery, Docket Nos. 48 & 56), the issues and disputes in those motions could have been avoided or narrowed. In view of the Court's local rules and practice standards which require such conferral, I find it unreasonable for Plaintiffs' counsel to ignore this requirement and charge fees for a motion filed without attempting to eliminate or limit the issues by conferring with other counsel.. 10. As highlighted above, the absence of grounds for hourly rate "enhancement," the

apparent absence of billing judgment (and lack of adjustment for certain charges) and client oversight, the large amount of time charged for various tasks along with block billing entries, and Plaintiffs' success on one of the five claims asserted against the Forest Service, lead me to conclude that fee and cost amounts requested by Plaintiffs seem well above the amount of fees and costs permitted under EAJA, and therefore Plaintiffs' request for fees and costs should be substantially reduced at a percentage derived in this Court's discretion. Dated this 11th day of April, 2008.

/s/ Patricia A. Thatcher Patricia A. Thatcher

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