Free 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-1071-MSK-MEH SAN LUIS VALLEY ECOSYSTEM COUNSEL [sic], JAMES MARTIN, JERRE GUTHALS, STEVE LEWIS, 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, Defendant-Intervenors.

DEFENDANT'S RESPONSE OPPOSING PLAINTIFFS' APPLICATION FOR ATTORNEYS' FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT

TROY A. EID UNITED STATES ATTORNEY s/Terry Fox Terry Fox Assistant United States Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Telephone: 303-454-0158 FAX: 303-454-0404 E-mail: [email protected]

Of Counsel Diane M. Connolly, Attorney United States Department of Agriculture Office of the General Counsel 730 Simms Street, Room 309 Golden, CO 80401

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TABLE OF CONTENTS TABLE OF AUTHORITIES. ......................................................................................................... iii BACKGROUND. ............................................................................................................................ 1 ARGUMENT................................................................................................................................... 5 I. II. STANDARD OF REVIEW FOR EAJA APPLICATIONS. ................................... 5 THE SAN LUIS PLAINTIFFS DO NOT MEET THE PREVAILING PARTY REQUIREMENT AS TO THE WHOLE LITIGATION......................................... 5 PLAINTIFFS ARE NOT ENTITLED TO FEES AND EXPENSES BECAUSE THE TOTALITY OF THE CIRCUMSTANCES DEMONSTRATES THAT THE FOREST SERVICE'S POSITION WAS SUBSTANTIALLY JUSTIFIED. . 6 A. Looking at the Totality of the Circumstances, The Forest Service's Position that it Complied With NEPA was Substantially Justified. ............ 9 1. 2. The Forest Service's Position that an EIS was Not Required was Substantially Justified............................................................... 9 The Forest Service's Position that the EA and the Decision Notice Properly Analyzed Other Alternatives and Provided Sufficient Due Process Was Substantially Justified. ..................... 11 a. b. The Forest Service Considered Alternatives to the Exchange...................................................................... 11 The Public Was Afforded the Notice and an Opportunity to Comment. .................................................. 12

III.

B.

The Forest Service's Position that it Acted Consistently With NFMA and FLMA Was Substantially Justified......................................... 14

IV.

THE COURT MAY ONLY AWARD FEES BASED ON REASONABLE HOURLY RATES AND A REASONABLE EXPENDITURE OF HOURS. ...... 14 A. B. The Lodestar Analysis................................................................................ 17 Plaintiffs' Fee Request is Based on an Excessive Number of Hours......... 19 1. Much of The Time Plaintiffs Seek to Recover is Non-Compensable.......................................................................... 19 a. Fees Expended During the Administrative Process........... 19 i

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b.

Plaintiff Cannot Recover Attorneys' Fees for Clerical Tasks..................................................................... 20

2.

Much of the Time for which Plaintiffs Seek a Fee is Not Recoverable from the Forest Service. ............................................ 21 Any Award Made to Plaintiffs Must be Substantially Reduced Because Plaintiffs' Attorneys Have Submitted Billing Records Rife With Block Billing, Lack of Detail Which Does Not Adequately Document Their Claimed Rates and Hours, and Entries That Do Not Segregate Time Expended by Issues or Claims. ...................................................... 24 a. b. c. Powers' Billing Practice..................................................... 27 Block Billing by Krupp...................................................... 33 Rowe. ................................................................................. 34

3.

4. C.

Powers, Krupp, and Rowe III Worked Many Unnecessary Hours............. 35 The Court Should Reduce the Lodestar Amount to Account for Plaintiffs' Limited Success......................................................................... 39 Plaintiffs' Attorney's Hourly Rates are Unreasonably High...................... 40 1. 2. Plaintiffs' Effort to Justify an Enhanced Specialist Fee Must Fail. ................................................................................ 41 Plaintiffs have not met their burden of showing that the claimed rates are reasonable. ......................................................... 43

D.

E.

Any award made must be reduced because Plaintiffs seek to recover expenses they are not entitled to and have failed to adequately document their expenses. ........................................................................... 44 1. 2. Plaintiffs cannot recover for travel expenses. ................................ 46 Even if Plaintiffs could recover for photocopying costs, any reimbursement of those costs must be significantly reduced........................................................................................... 46 Even if Plaintiffs could recover for on-line research expenses, their reimbursement must be substantially reduced. ...................... 48

3.

CONCLUSION.............................................................................................................................. 49

ii

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TABLE OF AUTHORITIES FEDERAL CASES Page No. Abernathy v. Clarke, 857 F.2d 237 (4th Cir. 1988). .......................................................................................................... 4 Action on Smoking & Health v. CAB, 724 F.2d 211 (D.C. Cir. 1984). ...................................................................................................... 36 Amoco Production Co. v. Village of Gambell, 480 U.S. 531 (1987)..................................................................................................................... 8, 9 Ardestani v. INS, 502 U.S. 129 (1991)......................................................................................................................... 5 Biodiversity Conservation Alliance v. Stem, 04-cv-1816-AP (D. Colo. 2006), rev'd, No. 07-1061, __ F.3d __, 2008 WL 714047 (10th Cir.March 18, 2008)......................................................... 3, 44 Blum v. Stenson, 465 U.S. 886 (1984)............................................................................................................... 40, 41n Bohn v. Heckler, 613 F. Supp. 232 (N.D. Ill. 1985). ................................................................................................. 20 Bratcher v. Bray-Doyle Ind. Sch. District, 8 F.3d 722 (10th Cir. 1993). .......................................................................................................... 24 Bullfrog Films, Inc. v. Wick, 959 F.2d 782 (9th Cir. 1992). .......................................................................................................... 6 California v. Norton, 311 F.3d 1162 (9th Cir. 2002). ...................................................................................................... 10 Case v. Unified Sch. District Number 233, Johnson County, 157 F.3d 1243 (10th Cir. 1998). ............................................................................................. Passim Caudle v. Bristow Optical Co., 224 F.3d 1014 (9th Cir. 2000). ...................................................................................................... 17 Clawson v. Mountain Coal Co., No. 01-cv-2199-MSK-MEH, 2007 U.S. Dist. LEXIS 97499 (Nov. 28, 2007).............................. 21 Commissioner, INS v. Jean, 496 U.S. 154 (1990)................................................................................................................. 8, 18n iii

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Corder v. Gates, 104 F.3d 247 (9th Cir. 1996). ........................................................................................................ 40 Dillard v. City of Greensboro, 213 F.3d 1347 (11th Cir. 2000). .................................................................................................... 43 Doe v. Keala, 361 F. Supp. 2d 1171 (D. Hawaii 2005). ....................................................................................... 40 Edmonds Institute v. Babbitt, 42 F. Supp. 2d 1 (D.D.C. 1999). .................................................................................................... 10 Griffon v. United States Department of Health and Human Services, 832 F.2d 51 (5th Cir. 1987). ............................................................................................................ 7 Hadden v. Bowen, 851 F.2d 1266 (10th Cir. 1988). ...................................................................................................... 7 Harolds Stores, Inc. v. Dillard Department Stores, Inc., 82 F.3d 1533 (10th Cir. 1996). ................................................................................................ 25, 32 Harris v. Marhoefer, 24 F.3d 16 (9th Cir. 1994). ............................................................................................................ 40 Harris v. Railroad Retirement Board, 990 F.2d 519 (10th Cir. 1993). .................................................................................................... 8, 9 Hensley v. Eckerhart, 461 U.S. 424 (1983)................................................................................................................ Passim Hulett v. Chater, No. 96-5139, 107 F.3d 880, 1997 WL 116975 (10th Cir. March 17, 1997).................................... 6 Jane L Bangerter v. Bangerter, 61 F.3d 1505 (10th Cir. 1995). .......................................................................................... 25, 26, 46 Jones v. Unisys Corp., 54 F.3d 624 (10th Cir. 1995). .................................................................................................. 47, 48 Kay v. Ehrler, 499 U.S. 432 (1991)....................................................................................................................... 28 Kooritzky v. Herman, 178 F.3d 1315 (D.C. Cir.1999). ..................................................................................................... 28 iv

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Love v. Reilly, 924 F.2d 1492 (9th Cir. 1991). ...................................................................................................... 21 Marcus v. Shalala, 17 F.3d 1033 (7th Cir.1994). ......................................................................................................... 15 Mares v. Credit Bureau of Raton, 801 F.2d 1199 (10th Cir. 1986). ............................................................................................. Passim Mass. Fair Share v. Law Enforcement Assist. Admin., 776 F.2d 1066 (D.C. Cir. 1985). .................................................................................................... 47 Missouri v. Jenkins, 491 U.S. 274 (1989)....................................................................................................................... 21 Morgan v. Perry, 142 F.3d 670 (3rd Cir. 1998). ...................................................................................................... 4, 6 Muth v. Marsh, 525 F. Supp. 604 (D.D.C. 1981). ................................................................................................... 20 Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir. 1978)........................................................................................................ 26n National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319 (D.C. Cir. 1982). .................................................................................................... 27 National Association of Mfgrs. v. Department of Labor, 962 F. Supp. 191 (D.D.C. 1997), aff'd, 159 F.3d 597 (D.C. Cir. 1998). ............................... 42n, 43 Natural Resources Defense Council v. EPA, 595 F. Supp. 65 (D.D.C. 1984). ..................................................................................................... 21 Oklahoma Aerotronics Inc. v. United States, 943 F.2d 1344 (D.C. Cir. 1991). .................................................................................................... 18 People Who Care v. Rockford Board of Education, School District Number 205, 90 F.3d 1307 (7th Cir. 1996). ........................................................................................................ 43 Perkins v. Mobile Housing Board, 847 F.2d 735 (11th Cir. 1988). ...................................................................................................... 19 Pettyjohn v. Chater, 888 F. Supp. 1065 (D. Colo. 1995)...................................................................................... 8, 33, 36 v

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Pierce v. Underwood, 487 U.S. 552 (1988)................................................................................................................ Passim Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983), overruled on other grounds sub nom., Penn v. Delaware Valley Citizens' Alliance for Clean Air, 483 U.S. 711, 725 (1987). ................ 45 Roanoke River Basin Ass'n v. Hudson, 991 F.2d 132 (4th Cir. 1993). ...................................................................................................... 6, 8 Role Models v. Brownlee, 353 F.3d 962 (D.C. Cir. 2004). .................................................................................... 32, 44, 47, 48 SEC v. Fox, 855 F.2d 247 (5th Cir. 1988). .......................................................................................................... 8 Save San Francisco Bay Associate v. U.S. Department of the Interior, No. Civ-F-97-6140, 2006 WL 1581882 (E.D. Cal. June 6, 2006)............................... 21, 46, 47, 48 Save Our Cumberland Mountains v. Norton, 297 F. Supp. 2d 1042 (E. D. Tenn. 2003)........................................................................................ 8 Schwarz v. Secretary of Health and Human Services, 73 F.3d 895 (9th Cir. 1995). .................................................................................................... 18, 39 Sorenson v. Mink, 239 F.3d 1140 (9th Cir. 2001). ........................................................................................ 18, 19, 41n Taylor v. Albina Community Bank, No. CV-00-1089-SJ, 2002 WL 31973738 (D. Ore. Oct. 2, 2002)........................................... 47, 48 Turman v. Tuttle, 711 F.1d (10th Cir. 1983). ............................................................................................................. 28 United Phosphorous Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219 (10th Cir. 2000). .............................................................................................. 25, 26 United States v. Charles Gyurman Land & Cattle Co., 836 F.2d 480 (10th Cir. 1987). ........................................................................................................ 6 United States v. Hallmark Construction Co., 200 F.3d 1076 (7th Cir. 2000). .................................................................................................... 4, 7 United States v. Heavrin, 330 F.3d 723 (6th Cir. 2003). .......................................................................................................... 6 vi

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Utah Shared Access Alliance v. United States Forest Serv., 288 F.3d 1205 (10th Cir. 2002). .................................................................................................... 13 Vialpando v. Johanns, No. 05-cv-01904-MSK- BNB 2008 WL 410369 (D.Colo. Feb. 12, 2008). .......... 17, 19, 37, 39, 40 Waterman Steamship Corp. v. Maritime Subsidy Board, 901 F.2d 1119 (D.C. Cir. 1990). .................................................................................................. 41n Weakley v. Bowen, 803 F .2d 575, 580 (10th Cir.1986). .................................................................................. 33, 45, 46 Westlands Water District v. United States Department of Interior, 376 F.3d 853 (9th Cir. 2004). ........................................................................................................ 12 Wilderness Watch & Public Employees for Environmental Responsibility v. Mainella, 375 F.3d 1085 (11th Cir. 2004). .................................................................................................... 10 STATUTES 5 U.S.C. § 552................................................................................................................................ 12 28 U.S.C. § 1920 (b). ..................................................................................................................... 47 28 U.S.C. § 2412 et seq........................................................................................................... Passim 42 U.S.C. § 1988.............................................................................................................. 28, 41n, 46 42 U.S.C. §§ 4321-4334. ................................................................................................................. 1 43 U.S.C. § 1701 et seq.................................................................................................................... 1 Fed. R. Civ. P. 4(i). .................................................................................................................. 32, 47 Fed. R. Civ. P. 10(c). ..................................................................................................................... 8n 40 C.F.R. § 1501.4(b),(c)................................................................................................................. 9 S. Rep. No. 94-1011, at 6 (1976). .................................................................................................. 18

vii

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Defendant, the United States Forest Service, by and through undersigned counsel, opposes Plaintiffs' Application for Attorneys' Fees Under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 et seq. (Docket ("Doc.") 134). Even if Plaintiffs were "prevailing parties," looking at the totality of Plaintiffs' Complaint, the Forest Service's positions were substantially justified. Moreover, the attorneys' fees and costs requested are excessive. BACKGROUND This case involves a challenge to a proposed exchange of certain Forest Service real property for privately-held property (the "Exchange").1 The San Luis Valley Ecosystem Council, James Martin, Jerre Guthals, Steve Lewis, the Antlers Rio Grande Lodge, Inc., and Charles C. Powers (collectively "Plaintiffs" or the "San Luis Plaintiffs")2 filed their complaint on May 27, 2004; a few days later, on June 1, 2004, Plaintiffs filed a Motion for Temporary Restraining Order and Preliminary Injunction ("TRO/PI Motion") to enjoin the Exchange. See Complaint and TRO/PI Motion, Docs. 1 and 4. The final Complaint includes four claims alleging that the Exchange violates the Federal Land Policy Management Act ("FLPMA"),3 43 U.S.C. § 1701 et seq., and one claim asserting various ways in which the Exchange allegedly was issued contrary to the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4334. See Second

The proposed exchange included a payment of money to equalize the values of the lands exchanged, because the appraisals of the lands proposed for exchange established that the value of the private lands exceeded the value of the Forest Service lands. Nancy Albright was a Plaintiff when the case began, but she later voluntarily dismissed all claims, agreeing to bear her own costs and fees. See Doc. 117. Plaintiffs advanced multiple FLMA claims, but they should have been brought as claims under the National Forest Management Act ("NFMA"). See Second Amended Complaint, Doc. 42, ¶¶34-64. These claims are referred to here as FLPMA claims because they are plead as such, but Defendant's response brief properly treats the claims as if they had been properly plead under NFMA. 1
3 2

1

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Amended Complaint at ¶¶34-64, Doc. 42; Plaintiffs' Initial Brief ("Pl Br."), Doc. 82. The FLPMA claims asserted that: (1) the Forest Service would not receive equivalent value from the private property owners in the Exchange (Complaint at ¶¶ 34-36); (2) Plaintiffs' supplemental appeals were not properly considered (Id. at ¶¶37-43); (3) Plaintiffs were denied effective appeal rights (Id. at ¶¶44-45); (4) the land acquisition standards were violated (Id. at ¶¶46-48); and (5) the forest plan objectives and standards were violated (Id. at ¶¶49-55).4 The single NEPA claim challenged, among other things, the Forest Service's failure to prepare an environmental impact statement ("EIS"). (Id. at ¶¶56-65). Plaintiffs' Complaint and TRO/PI Motion sought first to delay, and then to stop, the Exchange. Defendant promptly notified Plaintiffs that the proposed Exchange would not be consummated until August 15, 2004, for reasons unrelated to this lawsuit. See Stipulation, Doc. 8. As such, the parties agreed that there was no need for immediate relief and agreed upon a schedule for the Preliminary Injunction Motion to be heard. Id. The Preliminary Injunction Motion was scheduled to be heard on August 5, 2004. Hearing Transcript ("Tr."), Doc. 46. Defendants agreed not to move forward on the land exchange until a decision on the merits issued. Tr. at 6:3-8 and 12:13-18. The Court accepted the parties' agreement, rendering moot the need to rule on the Preliminary Injunction Motion.5 Id. at

While Plaintiffs did not articulate their claims as such, the claims regarding the alleged inconsistencies with the Forest Plan were construed as NFMA claims. See Doc. 95 at p. 15, n.11. Plaintiffs' billings show that they expended approximately 31.5 hours in connection with the TRO/PI Motion and more than 9.3 hours to oppose intervention. See Ex. J (tabulating unsuccessful and/or wasteful attorney time); see also Ex. B to Doc. 134. In the first instance, if Plaintiffs had timely and properly conferred with Defendants, there would have been no necessity for TRO/PI briefing or for the emergency relief sought. Plaintiffs' opposition to intervention resulted in much wasted attorney time, as the intervention was allowed. 2
5

4

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12:13-18; 13:21-14; and 16:11-15; see also Biodiversity Conservation Alliance, No. 07-1061, __ F.3d __, 2008 WL 714047, at ** 3-6 (10th Cir. March 18, 2008), Exhibit ("Ex.") A (reversing the District Court's award of $175,569.24 in fees to plaintiffs who claimed that they had prevailed on a Preliminary Injunction where the agency withdrew the challenged timber sale for various reasons, thereby rendering the case moot). At that hearing, the Court also heard the Intervenors' request to intervene, (id., Tr. At 12:13-18; 13-21-14; 4-15), and approved the intervention, over Plaintiffs' objection. Id. at 42:8-19. Following the parties' agreement concerning supplementation of the record, the stipulated briefing schedule was triggered. After full briefing and a hearing on the same, this Court issued an opinion on May 17, 2007 (Doc. 116), remanding the case to the Forest Service to allow the agency to prepare an EIS. The Court held that the EIS would allow the Forest Service to gain more information about the possible impacts of the Exchange. See Doc. 116 at p. 25. Significantly, the Court never enjoined the Exchange itself, which is the relief Plaintiffs ultimately sought. Id. Instead, the Court deferred to the agency to make that ultimate decision. Id. The Court also declined to address Plaintiffs' remaining claims and directed the Clerk to close the case. Id. In closing the case, the Court effectively rendered the sole issue decided subject to appeal. On July 16, 2007, the Forest Service filed a protective Notice of Appeal ("NOA"). See Doc. 118. On July 30, 2007, the Intervenors also filed a NOA. See Doc. 123. The parties attempted to resolve the case during the appeals process, but ultimately were unable to do so; on February 29, 2008, without objection from the Intervenors or Plaintiffs, the Forest Service dismissed its appeal. The Tenth Circuit's dismissal order directed that each party bear its own fees and costs on appeal. See Ex. B. 3

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Three of the Plaintiffs come before this Court and ask to recover more than $133,000 in attorneys' fees, costs, and "consultant" lawyer fees. Plaintiffs' arguments is that, in ruling on the NEPA claim; "the Court has already ruled that the Forest Service Decision and the opposition to the [administrative] appeal lacked substantial justification." See Doc. 134 at p. 11. Plaintiffs' argument is directly contrary to well-established precedent that the government "could take a position that is substantially justified, yet lose." Pierce v. Underwood, 487 U.S. 552, 569 (1988). The Forest Service's position was substantially justified. That the Court determined that an EIS was required does not automatically render the agency's position unjustified. See Abernathy v. Clarke, 857 F. 2d 237, 239 (4th Cir. 1988) (recognizing that just because an agency's action is reversed as "arbitrary and capricious" does not necessarily render the action "not substantially justified"); Morgan v. Perry, 142 F.3d 670, 685 (3rd Cir. 1998) (recognizing that the Court cannot assume that the government's position was not substantially justified just because the government lost on the merits of the litigation); United States v. Hallmark Construction Co., 200 F.3d 1076, 1079 (7th Cir. 2000) (The outcome of a case is not conclusive evidence of the justification supporting the government's position.) An award of fees and costs is not warranted in this case, because the Forest Service's position was substantially justified. Even if some fees and costs were granted, what Plaintiffs request is inordinately excessive because: (1) the Court has not entered judgment against the Forest Service on all six claims advanced; (2) Plaintiffs include substantial time that predates the "civil action" and EAJA only allows the award of fees, where the fee award is otherwise warranted, for a "civil action," 28 U.S.C. § 2412(b); (3) no billing judgment was exercised; (4) there are extensive time and expense entries after July 16, 2007 and the Court of Appeals' dismissal (Ex. B) required each side to bear their own fees and costs associated with the appeal; 4

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(5) there are numerous entries related to communications with the Intervenors and parties unrelated to this litigation; and (6) the attorney rate claimed is high and exceeds the EAJA hourly attorney rate allowed. Compare Doc. 42 and Doc. 116; see also Ex. J. (Tables 1-8). ARGUMENT I. STANDARD OF REVIEW FOR EAJA APPLICATIONS. The EAJA authorizes a court, under certain circumstances, to award attorneys' fees and costs to a party who prevails against the United States in a civil action. Thus, EAJA is a partial waiver of sovereign immunity. Ardestani v. INS, 502 U.S. 129, 137 (1991). As such, EAJA "must be strictly construed in favor of the United States." Id. EAJA provides, in pertinent part: [The] court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). Based on the plain meaning of this provision, the San Luis Plaintiffs must first prove that they are a "prevailing party" to recover fees. Id. Only if the San Luis Plaintiffs can satisfy this requirement must the Forest Service prove that its position was "substantially justified" or that "special circumstances make an award unjust." Id. II. THE SAN LUIS PLAINTIFFS DO NOT MEET THE PREVAILING PARTY REQUIREMENT AS TO THE WHOLE LITIGATION. The threshold issue is whether the San Luis Plaintiffs are a "prevailing party" within the meaning of EAJA. Despite Plaintiffs' contentions, the Court has never invalidated the Exchange. Rather, the Court deferred to the agency to make that decision on remand. See Doc. 116 at p. 25. Even if the Court were to accept that Plaintiffs "partially" prevailed on the single NEPA claim ­ 5

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in so far as the Court remanded the case to the Forest Service for preparation of an EIS ­ that in no way means that the Forest Service's position in this litigation was not substantially justified as to the litigation as a whole. III. PLAINTIFFS ARE NOT ENTITLED TO FEES AND EXPENSES BECAUSE THE TOTALITY OF THE CIRCUMSTANCES DEMONSTRATES THAT THE FOREST SERVICE'S POSITION WAS SUBSTANTIALLY JUSTIFIED. Plaintiffs' argument that the Forest Service's position was not substantially justified proceeds from the untenable premise that the Court's deference to the Forest Service on the ultimate question of whether the Exchange should proceed, and the Court's failure to address the merits of the other claims advanced, are all irrelevant to the question of whether the Forest Service's position was substantially justified. See Doc. 134 at p. 11. To the contrary, it is well established that this Court's inquiry into whether the Forest Service's position was substantially justified cannot focus exclusively on the sole issue on which Plaintiffs prevailed. Roanoke River Basin Ass'n v. Hudson, 991 F.2d 132, 139 (4th Cir. 1993); United States v. Heavrin, 330 F.3d 723, 730 (6th Cir. 2003); Bullfrog Films, Inc. v. Wick, 959 F.2d 782, 784 (9th Cir. 1992); Morgan, 142 F.3d at 671. Tenth Circuit precedent directs this Court to examine the "totality of the circumstances" to determine whether the government's position was substantially justified. United States v. Charles Gyurman Land & Cattle Co., 836 F.2d 480, 485 (10th Cir. 1987); see also Hulett v. Chater, No. 96-5139, 107 F.3d 880, 1997 WL 116975, at *2 (10th Cir. March 17, 1997) ("[L]ooking at the case as a whole, the Secretary's position was substantially justified.'") (citing Roanoke River Basin, 991 F.2d at 135 & 139). Plaintiffs compound their error by suggesting that this Court's finding that the Forest Service acted arbitrarily in one respect amounts to a de facto finding that the agency's position was not substantially justified. See Doc. 134 at 11 (arguing that the Court "has already ruled that 6

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the Forest Service Decision and the opposition to the appeal lacked substantial justification"). This argument contravenes Supreme Court and the Tenth Circuit precedent. See Pierce, 487 U.S. at 566-67; Hadden v. Bowen, 851 F.2d 1266, 1268 (10th Cir. 1988). Indeed, the Tenth Circuit and other Circuit courts have stressed that a decision on the merits is not a surrogate for determining whether Forest Service's position was substantially justified. E.g., Hadden, 851 F.2d at 1269; United States v. Hallmark Constr. Co., 200 F.3d 1076, 1079 (7th Cir. 2000); Griffon v. United States Dep't of Health and Human Servs., 832 F.2d 51, 52-53 (5th Cir.1987). While the Court granted some relief, on a single portion of one claim, it did not grant the ultimate relief Plaintiffs sought: to enjoin the Exchange altogether. The Court also made no substantive judgment relative to the multiple FLPMA claims, which formed the primary basis and focus of the Complaint and the briefing.6 Moreover, the Forest Service's position with regard to both the FLPMA7 claims and with respect to the multiple components of the single NEPA claim was substantially justified. The EAJA does not provide for attorneys' fees, even to prevailing parties, if "the court finds that the position of the United States was substantially justified . . . ." 28 U.S.C. § 2412(d)(1)(A). EAJA was "never intended to chill the government's right to litigate or to subject the public to added risk of loss when the government chooses to litigate reasonably substantiated positions, whether

Indeed, only 4.5 pages of the 32-page brief (4.5/32 = 14.06%) were devoted to arguing that an EIS, rather than an EA, should have been conducted, and thus that NEPA was violated. See Doc. 82 at p. 21-27 (NEPA) and Doc. 82 at p. 21-26 (§II.A, arguing that the Forest Service should have prepared an EIS rather than an EA). As such, 85.9% of the brief was devoted to issues other than challenging the sufficiencies of the EIS. Likewise, only 2 paragraphs of the 64paragraph Second Amended Complaint were devoted to challenging the Forest Service's failure to prepare an EIS. See Doc. 42 (at ¶¶60 and 62). As such, 96.7% of the complaint was not devoted to challenging the failure to prepare an EIS.
7

6

See supra fn. 3 and 6. 7

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or not the position later turns out to be wrong." Roanoke River Basin Ass'n v. Hudson, 991 F.2d 132, 139 (4th Cir. 1993). The standard for determining substantial justification "is one of reasonableness in law and in fact." Pettyjohn v. Chater, 888 F. Supp. 1065, 1067 (D. Colo. 1995) (citing Pierce, 487 U.S. at 565). To satisfy the Pierce test, the Tenth Circuit has held that the government must establish: (1) a reasonable basis for the facts asserted; (2) a reasonable basis in law for the legal theory proposed; and (3) support for the legal theory by the facts alleged. Harris v. Railroad Retirement Bd., 990 F.2d 519, 520-21 (10th Cir. 1993). In this regard, even a loss on the merits cannot be equated with a lack of substantial justification, since the government "could take a position that is substantially justified, yet lose." Pierce, 487 U.S. at 569. Both the underlying agency conduct as well as the agency's litigation position must be considered. SEC v. Fox, 855 F.2d 247, 250 (5th Cir. 1988). However, only a single substantial justification inquiry is made, looking at the case as a whole. Commissioner, INS v. Jean, 496 U.S. 154 (1990). The Forest Service's conduct in approving the Exchange, and later in defending the litigation that followed are substantially justified.8 Indeed, there is nothing unjustified or frivolous in the agency's assessment that its environmental analysis, which analysis was supported by thousands of pages of environmental study (see e.g. AR181-98, BA, and AR103-80, BE), complied with NEPA. Indeed, agencies routinely defend their actions as NEPA compliant, and win or lose, that defense should not render the agency's position not "substantially justified." See Save Our Cumberland Mountains v. Norton, 297 F. Supp. 2d 1042, 1047-1052 (E. D. Tenn. 2003) (citing to Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 44-545 (1987), and

The Forest Service incorporates by reference its response to Plaintiffs' Opening Brief. (Doc. 95.) See FED . R. CIV . P. 10(c). 8

8

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recognizing that the Court must follow the Amoco admonition to focus on the underlying substantive policy of NEPA-to ensure that the agency took "a hard look" at the subject action rather than insist on the statutory process of a full-fledged EIS). A. Looking at the Totality of the Circumstances, The Forest Service's Position that it Complied With NEPA was Substantially Justified.

Plaintiffs' Complaint asserted that the EA did not adequately analyze the Exchange and that a full EIS should have been done. Pl. Br. at 21, ¶ 4. The Forest Service's position concerning NEPA compliance was substantially. The Forest Service's position fully satisfies the Pierce test. The Forest Service had: (1) a reasonable basis for the facts asserted; (2) a reasonable basis in law for the legal theory proposed; and (3) support for the legal theory by the facts alleged. Harris, 990 F.2d at 520-21. 1. The Forest Service's Position that an EIS was Not Required was Substantially Justified.

Because the Exchange did not fall in a category automatically requiring an EIS (see Doc. 95 at pp. 24 and 32), the Forest Service prepared an EA, and made the EA available for public comment in draft form (AR202-209, 365-544); it later finalized the EA in January 2004. (AR2087; 98-102; see also 40 C.F.R. § 1501.4(b),(c) (2004)). Then, guided by the CEQ Regulations, the Forest Service used the EA to evaluate whether the Exchange was a major federal action that would have a significant impact on the quality of the human environment, requiring an EIS.9 40 C.F.R. § 1501.4(c); Doc. 95 at pp. 24-32. The Forest Service prepared a Biological Assessment ("BA") and a Biological Evaluation

The Forest Service's Response Brief details the agency's analysis of all the relevant factors. See Doc. 95 at pp. 22-37. That analysis is incorporated here by this reference and is not repeated here again. 9

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("BE") to evaluate the potential impact of the Exchange on wildlife, including listed plant and animal species as well as one species that is a candidate for listing. (AR181-98, BA, and AR10380, BE.) (AR-14 at 199-200.) In addition to preparing a BE and a BA (AR181-98), the Forest Service: (1) evaluated historic properties as required by the National Historic Preservation Act (AR2036-46, 2053-54); (2) prepared an EA as required by the NEPA (AR20- 209); (3) reviewed the Exchange against the requirements of the General Exchange Act of 1922 (AR2206-10); (4) reviewed the Exchange for compliance with the Rio Grande National Forest Land and Resource Management Plan, (AR2755-64, 2843-55); and (5) prepared a Wetlands and Floodplains Report for the Exchange in accordance with Executive Orders 11990 and 11988. (AR2165-73.) Taking all of this information, the Forest Service concluded that there was no federal action significantly affecting the environment; thus the agency did not go beyond the EA. In remanding the case to the Forest Service to complete an EIS, the Court observed that the Forest Service's decision to approve the exchange without an EIS "was the product of an incomplete process." Doc. 116 at p. 25. The Forest Service honestly ­ but apparently erroneously ­ believed it was complying with its statutory obligations. This position is supported by case law directing that federal agencies need only document their decision with a short statement, which demonstrates that the agency considered whether an EIS was needed and determined it was not. See, e.g., Wilderness Watch & Public Employees for Envt'l Responsibility v. Mainella, 375 F.3d 1085, 1095 (11th Cir. 2004); California v. Norton, 311 F.3d 1162, 1176 (9th Cir. 2002); Edmonds Inst. v. Babbitt, 42 F. Supp. 2d 1, 18 n.11 (D.D.C. 1999). That the Court had a different analysis and determined that an EIS was required does not render the agency's administrative action and its litigation position not "substantially justified." To say that the Forest Service's action and litigation position were not substantially justified would essentially render the Supreme Court's 10

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recognition that the government "could take a position that is substantially justified, yet lose" superfluous. Pierce, 487 U.S. at 569. 2. The Forest Service's Position that the EA and the Decision Notice Properly Analyzed Other Alternatives and Provided Sufficient Due Process Was Substantially Justified.

Plaintiffs' NEPA challenge also alleged that: (1) the Forest Service failed to consider reasonable alternatives (Pl. Br. at 24, ¶ 2); and (2) the Forest Service failed to allow for adequate public comment (Pl. Br. at 24, ¶ 2). a. The Forest Service Considered Alternatives to the Exchange.

A common theme in Plaintiffs' brief was the objection to the Forest Service's inclusion of parcel N2 in the proposed Exchange.10 Pl. Br. at 26, ¶ 2. (AR594, claiming to be "ready and able to purchase N-2[.]") In addition to the proposed exchange, the Forest Service considered: (1) no exchange; (2) an alternative consistent with the proposed exchange that eliminated parcel L3 and the southeast corner of parcel N2; and (3) an alternative consistent with the proposed exchange that entirely eliminated parcels L3 and N2. (AR11-13.) Thus, one of the alternatives that the Forest Service considered involved eliminating parcel N2. The Forest Service considered, but rejected, the following additional options: (1) acquiring the non-federal lands through direct purchase; and (2) acquiring the entire Carson Townsite. (AR13; see also AR11-13.) Specific to Plaintiffs' challenge vis-a-vis parcel N2, the Forest Service ultimately concluded that the Exchange addressed a number of goals, including: (1) simplifying current land boundaries between private land and National Forest; (2) reducing the risks of future

N2 is property that borders Plaintiff Antlers' and Powers' businesses and which Plaintiffs Powers and the Antlers Rio Grande Lodge claimed they wanted to purchase. 11

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administrative problems arising from differing land management direction on public and adjacent private lands; (3) protecting wildlife resources on the lands that would move into public ownership (and on adjacent public lands); and (4) resolving potential conflicts regarding access. (AR11-12.) In evaluating alternatives, the Forest Service believed it had complied with the law. See Westlands Water Dist. v. United States Dep't of Interior, 376 F.3d 853, 868 (9th Cir. 2004) (holding that an agency's range of alternatives "need not extend beyond those reasonably related to the purposes of the project."). b. The Public Was Afforded the Notice and an Opportunity to Comment

In this case, Plaintiffs did not claim that they had no notice of the Decision Notice or of the EA. They did not claim that they were unable to submit their comments and appeal the decision at issue. Indeed, they could not make these claims because the record is replete with Plaintiffs' objections. (AR545-80811.) Rather, Plaintiffs took issue with not being provided copies of the appraisals before the Decision Notice issued. Pl. Br. at 27, ¶ 3. Plaintiffs' challenge assumed, without citing legal authority, that every draft of every appraisal, before the deciding official even accepts the appraisal, is subject to defined notice and comment deadlines. First, appraisals are not final decisions for which notice and comment is required. Second, although the appraisals may have been available earlier, the deciding official did not accept the submitted appraisals until January of 2004. (AR3037-49, 3538-44, 3326-37.) Had Plaintiffs timely submitted and renewed requests for the appraisals under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, the appraisals would have been provided once the

See also Powers Affidavit (June 1, 2004), Doc. 3. Powers has been involved in the process since May of 2001. 12

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FOIA officer processed the request. In any event, any challenge premised on appraisal issues is not properly before the Court, as Plaintiffs did not timely or adequately present the issue to the Forest Service during the administrative appeals process.12 The Forest Service was not arbitrary and capricious in relying upon the appraisals it had that complied with governing standards.13 (AR3037-49, 3174-79, 3538-44, 3326-37, 3787-3790) See Doc. 95 at pp. 43-47. The rules provide for notice and comment, not participation and monitoring. There is an orderly process for notice and for comment. Plaintiffs had access to that process and availed themselves of it. The NEPA analysis was not defective meeting because Plaintiffs did not have the level of participation they desired ­ a level of participation that is not required by statute or by regulation. See Utah Shared Access Alliance v. United States Forest Serv., 288 F.3d 1205, 1208 (10th Cir. 2002) (recognizing that courts reviewing NEPA compliance simply look at whether the "agency has adequately considered and disclosed the environmental impacts of its actions."

In the timely submitted appeal, Powers and Antlers only made a passing reference to the appraisals, without supplying the facts ­ or supporting proof ­ upon which the objection is based. (AR593, claiming to have just received the appraisals and purporting to "reserve the right to supplement theis [sic] analysis.") The late- submitted purported "supplement" provided more detail concerning the alleged objections, but again failed to provide supporting proof, and certainly did not supply a counter-appraisal subject to the previously referenced appraisal standards. (AR727, 698-703.) Plaintiffs also claim that the opportunity for public comment was deficient because Powers was not able to retain a private archeologist to accompany the archeologist retained by the Forest Service to provide input for the EA. Pl. Br. at 27, ¶ 3. There is no legal entitlement to have counter-experts on site during the EA data-collection phase, and Plaintiffs point to no authority to support their proposition. Moreover, Plaintiffs were not precluded from submitting comments from an expert and having the agency consider those comments. (AR558-571.) If the Forest Service were to entertain every public request for counter-experts to accompany Forest Service officials or contractors at every stage of every process, then no public business would ever be accomplished. 13
13

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B.

The Forest Service's Position that it Acted Consistently With NFMA and FLMA Was Substantially Justified.

Because the Court did not address Plaintiffs' remaining claims, it is impossible for Plaintiffs to show: (1) that Plaintiffs prevailed on the FLPMA claims;14 or (2) that the Forest Service's position regarding the remaining arguments advanced by the Forest Service was substantially unjustified. See Doc. 113. Defendants refer the Court to their prior response and the arguments contained therein pertinent to the four FLPMA claims. See Doc. 95 at pp. 38-64. Because Plaintiffs have not prevailed on any FLPMA claim, the Forest Service respectfully asks this Court not to award attorneys fees, consultant fees, or costs associated with any of those claims.15 The Court has never entered a final judgment against the Forest Service on all the claims, and did not render a ruling on the multiple FLPMA claims. Although the Court remanded the matter to the agency so that an EIS could be conducted, the Court has never held that the Forest Service was not substantially justified at the administrative level or in the litigation. There is a difference between the Court finding that the agency was mistaken and finding that the agency lacked a substantial justification for its actions and for advancing the arguments it did. IV. THE COURT MAY ONLY AWARD FEES BASED ON REASONABLE HOURLY RATES AND A REASONABLE EXPENDITURE OF HOURS. EAJA sets the attorney-fee rate at $125 per hour, unless the Court determines that an increase in the cost of living justifies higher fees. See 28 U.S.C. § 2412(d)(2)(A). A cost-of-

14

See supra fn. 6.

Just examining Plaintiffs' Second Amended Complaint, only two paragraphs (out of a 64-paragraph Complaint) refer to NEPA. Plaintiffs' brief was also largely devoted to the FLPMA claims. See Doc. 82. Indeed, of the 32-page brief, only 5 and a half pages were devoted to arguing that an EIS, rather than an EA, should have been conducted. See Doc. 82 at pp. 21-26. 14

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living adjustment must be indexed to the year in which the fees are incurred, not to the year in which an award is made. See Marcus v. Shalala, 17 F.3d 1033, 1040 (7th Cir.1994). Here, Plaintiffs' fees were incurred from 2001 through 2008. Given the passage of time since the establishment of the hourly rate, a cost-of-living adjustment ("COLA") may be warranted and the Forest Service does not object to a COLA adjustment to the statutory EAJA rate. See Exhibit E to Doc. 142. The Forest Service does object to the claimed hours identified in Exhibit E. Assuming the Court awards any attorneys' fees, once all appropriate deductions are made ­ the highlights of which are identified in this Response ­ any fees awarded must be calculated by determining how many hours are left in that particular year multiplied by the appropriate EAJA rate. See Ex. J at Table 8. The Court must also account for the limited success achieved. Here, the limited success alone counsels in favor of a substantial across-the-board reduction in the neighborhood of 90% of the fees the Court might otherwise award, after all other appropriate deductions are made.16 The San Luis Plaintiffs ask for Attorney Powers' fees (the only attorney who made an appearance in this case), for the additional "consultant" lawyer fees, and for costs pursuant to EAJA. It is not at all clear what Plaintiffs are asking this Court to award, given that Plaintiffs' math does not even add up.17 Taking the brief as a whole, it seems that Plaintiffs are asking the Court for more than $132,000 in attorneys fees and costs, giving lead counsel an enhanced hourly fee of $200 per hour. Alternatively, Plaintiffs ask for approximately $105,700 in fees and costs if the EAJA

16

See supra fn. 6.

In the brief, $96,097.12 are claimed in attorneys fees for Power at the EAJA rates, but Exhibit E only show fees of $94,486.60 (with the wrong EAJA rate). There is a nearly $2,000 discrepancy in what Plaintiffs claim versus what they "purport" to document. There are many other errors. 15

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approved rates are applied to all counsel.18 Plaintiffs seek over $132,000 (or over $105,700) for attorneys' fees (for attorney and Plaintiff Charles Powers and his consultants) and $4,756.63 in expenses allegedly incurred from May 23, 2000 through February 29, 2008, even though this lawsuit was not filed until July of 2004.19 In the event the Court decides that Plaintiffs are eligible to recover fees and expenses under EAJA, the Forest Service asserts that the amount Plaintiffs seek is excessive and cannot be recovered from the Forest Service. Assuming the Court concludes Powers and his company are a "prevailing party" and assuming the Court finds the Forest Service was not substantially justified,
18

Defendant has attempted to decipher Plaintiffs' fee and cost request, and it appears that the fees and costs are best summarized as follows (according to Plaintiffs' theory of recovery):
Applying the EAJA Rates to all counsel Powers $94,486.60 $4,756.63 (costs) $6,700 (payments) Krupp $ 9,670.40 Rowe $ 3,487.50 $107,644.50 Total: $105,701.13 Awarding $200/hour to Powers in Contravention of EAJA Powers $121,200.00 $4,756.63 (costs) $6,700 (payments) Krupp $ 9,670.40 Rowe $ 3,487.50 $134,357.90 Total: $132, 414.53

There are numerous errors in Plaintiffs' calculations (even at the EAJA rates). For example, Plaintiffs' calculations do not appear to account for payments made, even though they acknowledge receiving $6,700. And, the hours sought to be charged against the Forest Service, even at the EAJA rate, are excessive for all of the reasons set forth in this brief. As an initial matter, it is worth noting that a great deal of Plaintiffs' time was necessarily devoted to the FLPMA claims. See Docs. 42 and 82. In fact, only 6 pages of the 32-page brief were devoted to the NEPA argument (only 8 paragraphs of the 64-paragraph Complaint are devoted to the single NEPA claim) (only 2 of the 8 paragraphs allege that the Forest Service should have prepared an EIS, rather than an EA); and of the six pages, only 4.5 pages were devoted to arguing that an EIS, rather than an EA, should have been conducted. See Doc. 82 at p. 21-27 (NEPA) and Doc. 82 at p. 21-26 (§II.A, arguing that the Forest Service should have prepared an EIS rather than an EA). It is worth noting that Powers spent 17.8 hours communicating with Mr. Krupp. See Ex. J. Given Mr. Powers' concession that he was not a subject-matter expert and that he found it necessary to consult with Mr. Krupps, all that time (and more) can reasonably be attributed to Mr. Powers' learning curve, which is not recoverable from the Forest Service. 16
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any award must be at EAJA rates, with appropriate deductions for: (1) losing positions (TRO/PI relief, intervention, discovery, etc) (Ex. J. Tables 5-7); (2) block billing; (3) billing that does not specify claims or parties (Ex. J, Table 2); (4) billings attributable to other parties (here, the Intervenors) (Ex. J, Table 1); (5) billings attributable to Powers' obvious learning curve (Ex. J, Table 2); (6) billings attributable to persons and entities with no obvious connection to this case (Ex. J, Table 1); (7) billings to research and brief the recovery of attorneys fees and costs; (8) Plaintiffs' failure to exercise billing judgment, as evidenced by billing for clerical and other unnecessary endeavors like traveling to Denver to file the Complaint (Ex. J, Tables 1-8); (9) time that predates the civil action and time that post-dates the notice of appeal (see Ex. B) (Ex. J, Table 8); and (10) for Plaintiff's limited success, given that five claims were advanced and the court only ruled on one part of a single claim. See Ex. J, Tables 1-8. Defendant also challenges the costs Plaintiffs seek. See Ex. K and infra pp. 53-57. A. The Lodestar Analysis

The Court must apply the two-step lodestar method to determine the amount of Plaintiffs' attorneys' fees award. See Case v. Unified Sch. Dist. No. 233, Johnson County, 157 F.3d 1243, 1249 (10th Cir. 1998); see also Vialpando v. Johanns, No. 05 cv1904-MSK-BNB 2008 WL 410369 (D. Colo. Feb. 12, 2008) at Doc. 76 (p. 31). Under the lodestar method, the Court must first determine the lodestar amount "by multiplying the hours [the prevailing party] reasonably expended on the litigation by a reasonable hourly rate." Case, 157 F.3d at 1249. Second, the Court must assess whether the lodestar amount is unreasonably high or unreasonably low in light of other factors courts have enumerated, and if so, the Court must adjust the fee award. Id. at 1250; Caudle v. Bristow Optical Co., 224 F.3d 1014, 1028 (9th Cir. 2000). One of the factors that courts consider is whether the amount of fees is commensurate with the benefit that the 17

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attorneys' efforts conferred on the client. Schwarz v. Secretary of Health and Human Services, 73 F.3d 895, 901-02 (9th Cir. 1995). As is true of fee statutes generally, the party seeking fees under EAJA bears the burden of submitting evidence supporting the hours worked. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).20 In fact, EAJA specifically requires the party seeking an award of attorneys' fees and expenses to submit "an itemized statement . . . stating the actual time expended" in the litigation. 28 U.S.C. § 2412(d)(1)(B). A court should not award attorneys' fees where the claimant has not adequately documented the hours spent. See Hensley, 461 U.S. at 433 ("Where the documentation of hours is inadequate, the district court may reduce the award accordingly".) A court should also exclude from the fee calculation "hours that were not `reasonably expended.'" Id. at 434 (quoting S. Rep. No. 94-1011, at 6 (1976)). Thus, counsel for the prevailing party must exercise the same "billing judgment" it would in billing a private client, "exclud[ing] from a fee request hours that are excessive, redundant, or otherwise unnecessary." Id. See also Sorenson v. Mink, 239 F.3d 1140, 1147 (9th Cir. 2001) ("We remand with instructions that the district court (1) make a finding concerning the number of hours that `are documented inadequately and reflect duplicative efforts and excessive staffing,' (2) make a finding as to which lawyers billed those hours, and (3) deduct those hours from its calculation of the hours that Plaintiffs' counsel `reasonably expended' on this action"). Oklahoma Aerotronics Inc. v. United States, 943 F.2d 1344, 1347 (D.C. Cir. 1991) quoting Hensley ("The district court must disallow claims for `excessive, redundant, or otherwise unnecessary charges.'").

Though Hensley did not involve the EAJA, the Supreme Court in INS v. Jean, 496 U.S. 154, 161 (1990), made clear that the Hensley analysis applies to EAJA cases. 18

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B.

Plaintiffs' Fee Request is Based on an Excessive Number of Hours.

To award fees under the lodestar analysis, the Court must determine the number of hours that Plaintiffs' counsel reasonably expended on services traceable to the United States' alleged conduct. See Hensley, 461 U.S. at 433-34 (The lodestar amount is calculated based on the number of hours reasonably expended.); see also, Vialpando, 2008 WL 410369, at *19 (Doc. 76 at 36) (reducing request for fees by unnecessary billing entries). Hours "reasonably expended" means "billable hours ­ that is, work that would be paid for by a reasonable client of means seriously intent on vindicating the rights in issue." Perkins v. Mobile Housing Bd., 847 F.2d 735, 738 (11th Cir. 1988) (emphasis added). To establish that the number of hours is reasonable, the fee applicant bears the burden of "submitting meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allocated to specific tasks." Case v. Unified School District No. 233, 157 F.3d at 1250 (emphasis added). The court should reduce the hours if the documentation is inadequate or the case was overstaffed, or if the hours were duplicative or otherwise excessive or unnecessary. Hensley, 461 U.S. at 433-34; Sorenson v. Mink, 239 F.3d at 1147 (remanding with instructions to make a finding concerning the number of hours that were documented inadequately or reflected duplicate efforts or excessive staffing, and to deduct those hours from calculation of the hours that plaintiff's counsel "reasonably expended" on the action); see also, Ex. J, Tables 1-8; Ex. D. 1. Much of The Time Plaintiffs Seek to Recover is Non-Compensable. a. Fees Expended During the Administrative Process

Although this case was not filed until May 27, 2004, Plaintiffs seek fees starting on May 23, 2000, almost four years before the lawsuit was even filed. Here, the administrative process 19

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was not a "civil action" for which fees are recoverable under EAJA. See 28 U.S.C. § 2412(b); see also Muth v. Marsh, 525 F. Supp. 604, 608 (D.D.C. 1981); Bohn v. Heckler, 613 F. Supp. 232, 234 (N.D. Ill. 1985). Accordingly, if the Court were to find that the Forest Service's position was not substantially justified, only a fraction of the fees sought are even at issue. See Ex. J (Table 8). The Court would also need to account for the limited results obtained in light of the multiplicity of issues litigated and effect appropriate reductions. Id. Plaintiffs' only argument that the time devoted to the administrative process is compensable is that some value resulted from their involvement in the administrative process because they were familiar with the proceedings below. See Doc. 134 at pp. 12-13. Plaintiffs readily admit that some amount of fees were incurred as a result of the administrative process. Id. at p. 11 (claiming that 87.8 hours of the 606 hours claimed for Powers were expended before the Complaint was filed).21 Despite claiming familiarity with the administrative process, Plaintiffs nevertheless spent considerable time (25 hours) examining the AR after the litigation began. See Ex. B (entries dated 7/25/04 (6.0 hr), 10/23/04 (5.0 hr), 12/3/05 (4.0); 12/4/05 (4.0), and 12/5/04 (6.0). b. Plaintiff Cannot Recover Attorneys' Fees for Clerical Tasks.

Next, it is clear that much of Mr. Powers' time was spent on clerical tasks like faxing documents, preparing a civil cover sheet, filing the Complaint, serving the Forest Service, and

Defendant's calculation shows that 88.7 hours of Power's time was expended during the administrative process (between February 23, 2000 and May 23, 2004). See Ex. J, Table 8 (Tabulation and Addition of Hours). An additional 40.5 hours of Power's time (much of it in block billing entries) was spent in researching the Complaint, drafting the Summons and Complaint, and consulting with various people. See Doc. 134 at Ex. B at p. 1 (billing entries from 5/24/04 through 5/27/04); Ex. J at Tables 1 and 8. Plaintiffs do not segregate the time spent on the NEPA claim. Id.; see also infra fn. 6. 20

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sending briefs to other lawyers (e.g., 1.0 on 9/14/05 to send briefs to attorney Bartlett). See Ex. B to Doc. 134 and Ex. J and D. None of that "clerical" time, even if an attorney performed the clerical task is properly compensable under EAJA. See Missouri v. Jenkins, 491 U.S. 274, 299 n. 10 (1989); Clawson v. Mountain Coal Co., No. 01-cv-2199-MSK-MEH, 2007 U.S. Dist. LEXIS 97499 (Nov. 28, 2007) 2. Much of the Time for which Plaintiffs Seek a Fee is Not Recoverable from the Forest Service.

Much of the time Attorney Powers spent on this case involved issues related to the interveners not the Forest Service. Fees for litigating issues against other parties are not recoverable from the government. See e.g., Love v. Reilly, 924 F.2d 1492, 1496 (9th Cir. 1991); Natural Resources Defense Council v. EPA, 595 F. Supp. 65, 70 n. 1 (D.D.C. 1984) (rejecting request for certain fees, finding there was "no rationale to justify an award of fees against [Forest Service] for work performed by NRDC against intervenors."); Save San Francisco Bay Assoc. v. U.S. Dep't of the Interior, No. Civ-F-97-6140, 2006 WL 1581882, * 7 (E.D. Cal. June 6, 2006) (Where both a water authority and environmental groups had challenged a decision by the Bureau of Reclamation, the private water authority could not recover fees for the aspects of the case it had litigated against the environmentalists.) As an initial matter, many of the time entries, especially those of Mr. Powers, are blocks of time devoted to responding to the Intervenors' pleadings or communicating with the Intervenors, and without separating out the legal issues (NEPA v. non-NEPA) Powers worked on: Table 1: Powers' Billing Entries for Intervenor's Issues
D ATE 7/28/04 7/28/04 T IME .2 .3 D ESCRIPTION T/C Mr. White's Office Received and reviewed Expedited Motion to Intervene

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7/28/04 7/28/04 7/29/04 7/30/04 8/16/04 8/17/04 8/18/04 8/26/04 9/3/04 9/15/04 9/28/04 10/22/04 10/25/04 11/12/04 9/28/05 10/11/05 10/18/05 1/26/06 1/26/06 2/15/06 5/7/06 8/15/06 7/6/07 7/30/07 8/10/07 8/15/07 8/17/07 9/24/07

.3 .1 4 5 .2 .2 .2 .2 .1 .2 .2 .2 .2 .1 .3 .2 .2 .1 .2 1 .3 1 .2 .1 .3 .1 .2 .2

R & R Intervenor's Motion to Dismiss Court [sic Count] I R & R Intervenor's Proposed Orders Drafting Response to Motion to Intervene Drafting Brief re: Opposition to Motion to Intervene Fax from Mr. White with Enclosures T/C Mr. White R & R fax with Scheduling Order from Mr. White Fax to Mr. White R & R Intervenor's Opposition to Evidentiary Hearing on Standing T/C with Jennifer Soice Review Defendants and Intervenor's Reply to Response to Motion R & R Intervenor's Answer to Second Amended Complaint T/C Pretroz and White R & R Intervenor's Appposition [sic] to Amended Motion for Discovery Letter to Mr. White E-mail to and from Ms. Soice E-mail from Ms. Soice and return E-mail from Ms. Soice Fax to Ms. Soice R & R Intervenor's Response Brief Letter to Mr. White R & R Intervenor's Supplemental Authority T/C from Mr. White regarding settlement Notice of Appeal from Intervenors R & R various appeal documents from Intervenors R & R letter from Petrols & White E-mail letter from Barney White re: Settlement T/C Mr. White

22

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