Opinion

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 ENVIRONMENTAL PROTECTION Case No. 22-cv-03520-TLT

INFORMATION CENTER, et al.,

8

Plaintiffs, ORDER GRANTING IN PART AND

9 DENYING IN PART PLAINTIFFS’

v. MOTION FOR ATTORNEYS’ FEES,

10 COSTS, AND OTHER EXPENSES;

ALICIA VAN ATTA, et al., DENYING DEFENDANTS’

11 OBJECTIONS TO PLAINTIFFS’

Defendants. REPLY ARGUMENT AND

12 DECLARATIONS

13 Re: Dkt. No. 74; 93

14

This case involves the dwindling coho salmon population, decades of history for the Yurok

15

Tribe, and aquatic change in the Shasta River. Having prevailed in showing that the National

16

Marine Fisheries Services’ biological opinion and decision not to issue an environmental impact

17

statement were arbitrary and capricious, Plaintiffs now seek attorneys’ fees, costs, and expenses.

18

In deciding Plaintiffs’ motion, the Court recognizes that Plaintiffs’ counsel were required to spend

19

a significant amount of time in investigating the coho salmon, history of the tribes surrounding the

20

Shasta River, and underlying aquatic change. Accordingly, Plaintiffs are entitled to a substantial

21

portion of their requested fees.

22

Pending before the Court are Plaintiffs’ motion for attorneys’ fees, costs, and other

23

expenses, ECF 74, and Defendants’ objections to Plaintiffs’ reply arguments and declarations,

24

ECF 93.

25

Having considered the parties’ briefs and exhibits, the relevant legal authority, and for the

26

reasons below, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs’ motion for

27

attorneys’ fees, costs, and other expenses. The Court Defendants’ objections to

1 Plaintiffs’ reply arguments and declarations.

2 I. BACKGROUND

3 This case involves the coho salmon in the Shasta River. ECF 47 at 2–8. Although the

4 coho salmon were listed as endangered species in 1997, “the National Marine Fisheries Services

5 issued permits to fourteen private landowners authorizing the incidental take of coho salmon in the

6 Shasta River in exchange for their compliance with activities that would benefit the species.” Id.

7 at 2. On June 15, 2022, Plaintiffs Environmental Protection Information Center and Friends of the

8 Shasta River filed a complaint alleging that Defendants Alecia Van Atta, Jim Simondet, and the

9 National Marine Fisheries Service (“NMFS”) (collectively, “Defendants”) violated the

10 Endangered Species Act (“ESA”) by issuing the fourteen permits. ECF 1. On January 13, 2023,

11 Plaintiffs filed an amended complaint seeking claims for relief under (1) the ESA; (2) NEPA

12 regulations; and (3) Administrative Procedure Act (“APA”). ECF 35 ¶¶ 106–121.

13 On February 24, 2023 and April 24, 2023, the parties filed cross motions for summary

14 judgment. ECF 37; ECF 41. On July 11, 2023, the Court granted Plaintiffs’ motion for summary

15 judgment and found that NMFS “applied the Safe Harbor Policy lawfully but violated the

16 Endangered Species Act by improperly restricting the action area in its biological opinion

17 [(“BiOp”)] and its decision not to issue an Environmental Impact Statement [(“EIS”) was arbitrary

18 and capricious.” ECF 47 at 27–28. The Court remanded the issues to the NMFS “with instruction

19 to prepare a biological opinion that’s action area accounts for the direct or indirect effects of the

20 operation of Dwinnell Dam and prepare an Environmental Impact Statement.” Id. at 28. The

21 same day, the Court entered judgment in favor of Plaintiffs and against Defendants. ECF 48.

22 Both parties appealed the Court’s summary judgment order. ECF 59; ECF 60; ECF 62–64.

23 On August 19, 2024, the Ninth Circuit granted Defendants’ unopposed motion for voluntary

24 dismissal of their cross-appeal. ECF 69 at 1. On February 12, 2025, the Ninth Circuit dismissed

25 Plaintiffs’ appeal because the parties conceded that Plaintiffs lacked appellate standing. ECF 71 at

26 2.

27 The parties filed status reports during the pendency of their appeals. See ECF 67; ECF 70.

1 impact statement [] by December 31, 2026.” ECF 70 at 2.

2 On May 2, 2025, Plaintiffs filed a motion for attorneys’ fees, costs, and other expenses, as

3 well as supporting declarations. ECF 74–ECF 79. On May 2, 2025, the Court granted the parties’

4 joint motion to stay pending settlement negotiations. ECF 81. On August 25, 2025, the parties

5 informed the Court that they have not been able to resolve Plaintiffs’ pending motion for

6 attorneys’ fees, costs, and other expenses. ECF 84. On September 17, 2025, Defendants filed an

7 opposition to Plaintiffs’ motion. ECF 88. On September 24, 2025, Plaintiffs filed a reply with

8 supporting declarations. ECF 90–ECF 92. On September 30, 2025, Defendants filed objections to

9 Plaintiffs’ reply arguments and declarations. ECF 93. On October 7, 2025, the Court granted

10 Plaintiffs’ motion to file a supplemental brief to respond to Defendant’s objections. ECF 95.

11 Plaintiffs filed their supplemental brief on the same day. ECF 96.

12 On December 5, 2025 and December 6, 2025, the parties provided responses to the Court’s

13 questions for oral argument. See ECF 99–101. The Court heard oral argument on December 9,

14 2025. ECF 102.

15 II. THE COURT DENIES DEFENDANTS’ OBJECTIONS TO PLAINTIFFS’ REPLY

DECLARATIONS

16

Defendants request that the Court strike Plaintiffs’ alleged new evidence and arguments

17

filed in support of Plaintiffs’ reply brief. ECF 93 at 2. Defendants argue that Plaintiffs’ reply, for

18

the first time, seeks additional fees and improperly offer new factual allegations concerning the

19

scope of Plaintiffs’ representation. Id. at 2–3. Defendants also argue that Peter Frost’s declaration

20

is improper under FRE 702. Id. at 5–6.

21

Here, Plaintiffs’ submitted declarations from Peter Frost and Thomas Wheeler in support

22

of Plaintiffs’ reply. ECF 91; ECF 92. Mr. Frost’s declaration addressed his practice and prior

23

work in Oregon and included timesheets from May 27, 2025 to September 23, 2025. ECF 91. Mr.

24

Wheeler’s declaration concerned his work as co-counsel and local counsel on this case. ECF 92.

25

Because Plaintiffs’ arguments and declarations were filed in response to arguments that

26

Defendants raised in their opposition briefs, the Court DENIES Defendants’ objections. See

27

Emelyenko v. Strafach, No. 23-cv-570, 2024 WL 4336522, at *5 (N.D. Cal. Sept. 24, 2024)

1 (“[E]ven if Emelyanenko’s challenges to the substance of the Schodt declaration were proper,

2 Defendants may, as here, properly respond to arguments raised in an opposition to a motion on

3 reply.”); Golden v. Google LLC, No. 22-cv-5246, 2024 WL 1880336, at *1 (N.D. Cal. Apr. 3,

4 2024) (“To the extent Google raised new arguments on reply, such arguments are ‘not new

5 evidence when [] submitted to rebut arguments raised in the opposition brief,’ which was the case

6 here.”) (internal citation omitted).

7 III. THE COURT GRANTS IN PART AND DENIES IN PART PLAINTIFFS’ MOTION

FOR ATTORNEYS’ FEES, COSTS, AND OTHER EXPENSES

8

Plaintiffs request a total of $692,832.62 in attorneys’ fees (not including $1,721.28 for

9

costs and expenses) pursuant to the Equal Access to Justice Act (“EAJA”). ECF 90 at 15; see id.

10

at 15 n.6 (“Motion with expenses = $655,947.88 + $38,606.02 (reply) = $694,553.90”) (emphasis

11

added).

12

The parties dispute (A) whether Plaintiffs’ fees motion should have been brought under

13

the Endangered Species Act (“ESA”) rather than the EAJA; (B) the amount of reasonable

14

attorneys’ fees; and whether Plaintiffs may be awarded costs and other expenses. ECF 74; ECF

15

88.

16

A. Because Plaintiffs Challenged Defendants’ Administration of the Biological

17 Opinion and Incidental Take Statement, Plaintiffs Properly Brought a Fees

Motion Pursuant to the EAJA

18

Defendants argue that attorneys’ fees are not warranted because Plaintiffs should have filed

19

their motion under the ESA, not the EAJA. ECF 88 at 3–24. Defendants argue that Plaintiffs sent

20

NMFS a notice of intent to sue “pursuant to the [ESA] citizen suit provision,” 16 U.S.C. §

21

1540(g)(2)(A)), alleged an ESA citizen-suit claim in the amended complaint, and pressed the

22

claim in their summary judgment motion. Id. at 13–14. Plaintiffs argue that they did not press the

23

issue of the ESA on summary judgment and the Court had jurisdiction to consider Plaintiffs’

24

challenges to the BiOp. ECF 90 at 1.

25

A discussion of the relationship between the ESA and the APA is necessary to determine

26

whether the ESA or EAJA applies to Plaintiffs’ fees motion. See W. Watersheds Project v.

27

Kraayenbrink, 632 F.3d 472, 481 (9th Cir. 2011) (“We review claims brought under the ESA

1 under the citizen-suit provision of the ESA or, when the citizen-suit provision is unavailable,

2 under the APA.”); Coos Cnty. Bd. of Ctny. Comm’rs v. Kempthorne et al., 531 F.3d 792, 802 (9th

3 Cir 2008) (“[I]f a plaintiff can bring suit against the responsible federal agencies under [a citizen

4 suit provision], this action precludes an additional suit under the APA.”) (internal quotations

5 omitted). In general, ESA claims challenge an agency’s non-discretionary actions (i.e., actions

6 that are specifically required by the ESA statute). See White v. United States Army Corps of

7 Eng’rs, 659 F. Supp. 3d 1045, 1054 (N.D. Cal. 2023) (“[C]itizen suits are only authorized to

8 challenge non-discretionary agency actions.”). The ESA specifically provides a civil right of

9 action for three categories of claims:

10 (A) to enjoin any person, including . . . any other governmental

instrumentality . . . who is alleged to be in violation of any provision

11 of this Act or regulation issued under the authority thereof; or

12 (B) to compel the Secretary to apply . . . the prohibitions set forth in

or authorized pursuant to section 4(d) or section 9(a)(1)(B) of this Act

13 [16 USCS §§ 1533(d), 1538(a)(1)(B)] with respect to [take]; or

14 (C) against the Secretary where there is alleged a failure of the

Secretary to perform any act or duty under section 4 [16 USCS §

15 1533] which is not discretionary with the Secretary.

16

See South Yuba River Citizens League v. National Marine Fisheries Serv., No. 06-cv-2845, 2008

17

WL 11400759, at *4 (E.D. Cal. Dec. 23, 2008) (citing ESA § 11(g)(1), 16 U.S.C. § 1540(g)(1)).

18

In any suit brought under the ESA, the Court “may award costs of litigation (including reasonable

19

attorney and expert witness fees) to any party, whenever the court determines such award is

20

appropriate.” Citizens for Better Forestry et al. v. United States Dep’t of Agriculture et al., No.

21

05-cv-1144, 2008 WL 5210945, at *4 (N.D. Cal. Dec. 11, 2008) (quoting 16 U.S.C. § 1540(g)(4));

22

see also Home Builders Ass’n of Northern California et al. v. United States Fish and Wildlife Serv.

23

et al., No. 05-cv-0629, 2007 WL 4374047, at *2 (E.D. Cal. Dec. 14, 2007) (“Under the citizen suit

24

provision of the ESA, a court may award attorneys’ fees to a party whenever the court determines

25

such award is appropriate.”) (internal quotations omitted).

26

“Not all claims alleging an ESA violation, however, can be brought as citizen suits under

27

the ESA.” South Yuba, 2008 WL 11400759, at *4 (citing Bennett v. Spear, 520 U.S. 154, 175–77

1 (1997)). In Bennett, the Supreme Court explained that the ESA’s reference to “violation” in

2 subsection (A) “cannot be interpreted to include the Secretary’s maladministration of the [ESA].”

3 Bennett v. Spear, 520 U.S. 154, 174 (1994). Accordingly, in cases where claims involve the

4 Secretary’s maladministration of discretionary actions, the APA applies. See San Francisco

5 Baykeeper v. United States Fish and Wildlife Serv., No. 21-cv-2566, 2021 WL 3426961, at *12

6 (N.D. Cal. Aug. 5, 2021) (“Similarly, district courts in the Ninth Circuit have applied Bennett to

7 find that other challenges to listings (or failure to list) under § 1533 also involved non-

8 discretionary duties that brought the plaintiffs’ claims within the ambit of the citizen suit

9 provision.”); South Yuba, 2008 WL 11400759, at *5 (“Bennett drew a distinction between

10 substantive and administrative claims. ESA citizen suits “may enforce the substantive provisions

11 of the ESA against regulated parties-both private entities and Government agencies—but it is not

12 an alternative avenue for judicial review of the Secretary’s implementation of the statute.”). If the

13 APA governs, the Court must apply the EAJA when assessing fees. See Pham v. Jaddou, 2024

14 WL 436351 (“Plaintiffs’ prayer for EAJA fees stands or falls with their APA claim.”).

15 Turning to the case at hand, the issue before the Court is whether Plaintiffs’ claims arise

16 under ESA’s citizen suit provision 16 U.S.C. 1540(a)(1)(A) or the APA. See ECF 99 at 1

17 (“Plaintiffs asserted violations of Sections 7 and 10 of the ESA. . . either arise under the

18 Administrative Procedure Act or the first ESA citizen suit provision (16 U.S.C. §

19 1540(g)(1)(A))”); ECF 100 at 1 (“U.S.C. § 1540(g)(1)(B) authorizes suits to compel the Secretary

20 to apply take prohibitions in States with cooperative agreements, which are authorized under

21 Section 6 of the ESA. 16 U.S.C. § 1535. Plaintiffs’ challenge to the BiOp does not concern take

22 prohibitions in states with cooperative agreements. Second, 16 U.S.C. § 1540(g)(1)(C) authorizes

23 suits for failure to perform nondiscretionary duties “under section 1533,” . . . Plaintiffs’ challenge

24 to the BiOp does not involve decisions related to the listing of species or designation critical

25 habitat.”). As discussed above, if the APA applies, the Court considers Plaintiffs’ motion under

26 the EAJA.

27 Here, on summary judgment, Plaintiffs argued that NMFS’s application of the Safe Harbor

1 opinion improperly included routine agricultural activities, relied on measures that were not

2 reasonably certain to occur, did not adequately address threat to the coho salmon, failed to use the

3 best available science related to temperatures, and included monitoring protocol that did not

4 ensure corrective actions; the incidental take statement was unlawful; and NMFS violated NEPA.

5 ECF 37 at 16–47; see Walker v. Beard, 789 F.3d 1125, 1132 (9th Cir. 2015) (“It is a general rule

6 that a party cannot revisit theories that it raises but abandons at summary judgment.”) (quoting

7 Ramirez v. City of Buena Park, 560 F.3d 1012, 1026 (9th Cir. 2009)). Plaintiffs ultimately argued

8 that “[u]nder the APA, the normal remedy for an unlawful agency action is to ‘set aside’ the

9 action” and that “the Court should set aside NMFS’s decisions to issue the BiOP and ITS, to issue

10 a FONSI, and to issue the permits.” Id. at 47 (quoting Se. Alaska Conserv. Council v. U.S. Army

11 Corps of Eng’rs, 486 F.3d 638, 654 (9th Cir. 2007)). As discussed in the Court’s summary

12 judgment order, Plaintiffs ultimately prevailed in showing that the BiOp’s action area was

13 improperly limited, the BiOp improperly relied on conditions not reasonably certain to occur, and

14 that NMFS’s decision to not prepare an EIS was arbitrary and capricious. ECF 47 at 16–28.

15 Consistent with Supreme Court and Ninth Circuit precedent, the Court finds that Plaintiffs’

16 challenges to the BiOp and Incidental Take Statement were properly under the APA. Notably, the

17 Ninth Circuit has recognized that the a “BiOp and its accompanying Incidental Take Statement

18 represent final agency action subject to judicial review” and “the ESA does not itself specify a

19 standard of review of its implementation.” Oregon Nat. Res. Council et al. v. Allen et al., 476

20 F.3d 1031, 1035–36 (9th Cir. 2007). Plaintiffs’ challenges to the discretionary implementation of

21 the BiOp and Incidental Take Statement are thus “familiar one[s] in administrative law” where,

22 allegedly, an “agency did not appropriately consider all of the relevant factors that the statute sets

23 forth to guide the agency in the exercise of its discretion.” Weyerhaeuser Co. v. United States

24 Fish and Wildlife Serv., 586 U.S. 9, at *25 (2018). Indeed, “the Ninth Circuit held that the

25 issuance of a BiOp is a final agency action, properly challenged under the APA as opposed to the

26 ESA’s citizen suit provision.” Fish Nw. v. Rumsey, No. 22-35641, 2023 WL 4071941, at *8 (9th

27 Cir. June 20, 2023) (citing American Rivers v. National Marine Fisheries Service, 126 F.3d 1118

1 with the remedy for an APA violation. See Nat. Res. Defense Council v. Kempthorne et al., 506 F.

2 Supp. 2d 322, 349 (E.D. Cal. 2007) (“[T]he requested relief is invalidation of the BiOp, a remedy

3 undeniably available under the APA.”).

4 Accordingly, because Plaintiffs’ claims arose out of the APA, the Court finds that

5 Plaintiffs have properly brought their fees motion pursuant to the EAJA.

6 The Court next considers whether fees, costs, and expenses are proper under the EAJA.

7 B. The Court Grants In Part and Denies in Par Plaintiffs’ Motion for Attorneys’

Fees

8

Plaintiffs seek a total of $692,832.62 in attorneys’ fees pursuant to the EAJA. ECF 74;

9

ECF 90.

10

“The EAJA directs courts to award attorney’s fees to ‘a prevailing party’ in certain civil

11

actions involving the United States, unless the government’s position was “substantially justified”

12

or “special circumstances make an award unjust.” United States v. Marin Alliance for Medical

13

Marijuana, 706 F. App’x. 346, 347 (9th Cir. 2017) (internal quotation omitted). “It is the

14

government’s burden to show that its position was substantially justified or that special

15

circumstances exist to make an award unjust.” Gutierrez v. Barnhart, 274 F. 3d 1255, 1258 (9th

16

Cir. 2001).

17

Defendants argue that (i) Plaintiffs’ fees motion is untimely; (ii) Plaintiffs are not entitled

18

to an EAJA award because the government’s position was substantially justified; and (iii) any

19

EAJA award should be substantially reduced. ECF 88 at 8–24.

20

i. Plaintiffs’ Motion For Attorneys’ Fees is Timely

21

Defendants argue that Plaintiffs’ motion for attorneys’ fees is untimely under the EAJA

22

because Plaintiffs did not submit an application for fees and other expenses to the Court within

23

thirty days of final judgment in this action. ECF 88 at 6. Defendants argue that the Court’s

24

decision was final and non-appealable as of February 12, 2025, the day the Ninth Circuit

25

dismissed Plaintiffs’ appeal. Id. at 7; ECF 71. Defendants assert that the EAJA required Plaintiffs

26

to file their motion by March 14, 2025. Plaintiffs argue that the EAJA requires filing of the motion

27

1 Plaintiffs’ appeal. ECF 74 at 4; ECF 90 at 1–2.

2 “Under the EAJA, applications for awards of attorneys’ fees must be filed ‘within 30 days

3 of final judgment.’” Al–Harbi v. INS, 284 F.3d 1080, 1083–1085 (9th Cir. 2002) (quoting 8

4 U.S.C. § 2412(d)(1)(B)). The Ninth Circuit has interpreted “final judgment” as “designating the

5 date on which a party’s case has met its final demise, such that there is no longer any possibility

6 that the district court’s judgment is open to attack.” Id. The date of final demise includes the “90–

7 day time for filing a petition for writ of certiorari with the Supreme Court has expired.” Id.

8 Here, Plaintiffs’ motion is timely under the EAJA because Plaintiffs filed their motion for

9 attorneys’ fees on May 2, 2025, which is within 120 days of the Ninth Circuit’s February 12, 2025

10 dismissal of Plaintiffs’ appeal. See Kashin v. Kent, 342 F. App’x. 341, 342 (9th Cir. 2009) (“The

11 EAJA requires an application for attorneys’ fees and costs to be filed within thirty days of final

12 judgment. . . If no petition for certiorari is filed, the application is due 120 days after the appellate

13 decision.”).

14 Accordingly, Plaintiffs’ motion for attorneys’ fees pursuant to the EAJA fees is timely.

15 ii. The Court May Consider an Award of Attorneys’ Fees Because Defendants’

Position Was Not Substantially Justified

16

Defendants argue that an award is not warranted because their conduct was substantially

17

justified. ECF 88 at 8–13. Plaintiffs argue that Defendants’ position was not substantially

18

justified. ECF 90 at 2–6.

19

“Substantially justified” means “‘justified in substance or in the main’—that is, justified to

20

a degree that could satisfy a reasonable person.” Gutierrez, 274 F.3d at 1258. The substantial

21

justification inquiry requires the Court to “focus on two questions: first, whether the government

22

was substantially justified in taking its original action; and, second, whether the government was

23

substantially justified in defending the validity of the action in court.” Id.

24

Defendants argue that both their (a) original actions and (b) litigation conduct are

25

substantially justified. ECF 88 at 8.

26

a. Defendants were not Substantially Justified in Taking Its Original Action

27

Defendants argue that their original action was reasonable because NMFS was able to

1 secure habitat improvement from the permittees, which provided a net conservation benefit to the

2 coho salmon. ECF 88 at 8–9. Defendants argue that the Court did not overturn Defendants’ net

3 benefit determination and Defendants relied on case law and the record to support their arguments.

4 Id. at 9–13. Plaintiffs argue that Defendants were not substantially justified in their original

5 actions because the coho salmon population was at high risk of extinction when NMFS began to

6 evaluate whether to allow takings from the population. ECF 90 at 2. Plaintiffs argue that

7 Defendants improperly represented to the Court that NMFS had little to no ability to influence

8 impoundments and diversions on the Shasta River. Id. at 2–3.

9 The Court finds that Defendants failed to meet their burden in showing that their original

10 action was reasonable. As discussed in the Court’s summary judgment order, NMFS listed the

11 coho salmon as a threatened species under the ESA in 1997; and critical habitat for the salmon

12 was designated in 1999. ECF 47 at 1. Notably, the minimum number of adult that the species

13 needed in the Shasta River for survival was 144, but only 115 adult coho retuned in 2012; 39

14 salmon in 2018; and 62 salmon in 2020. Id. at 3. Despite the decline in salmon numbers, NMFS

15 considered to issue permits allowing for the incidental take of the coho salmon. Id. at 8. The

16 Court held that NMFS’s BiOp improperly excluded action areas that would ultimately be affected

17 by the permits even though 50 C.F.R. § 402.02 clearly defined action areas as “all areas to be

18 affected directly or indirectly by the Federal action and not merely the immediate area involved in

19 the action.” Id. at 17–18. Defendants also relied on uncertain measures to measure mitigation. Id.

20 at 20.

21 Defendants fail to sufficiently address these underlying facts. See Gutierrez, 274 F.3d at

22 1258 (“A substantially justified position must have a reasonable basis both in law and fact.”).

23 Accordingly, Defendants fail to substantially justify their failures to properly assess the action area

24 and rely on certain measures. See Center for Food Safety et al. v. Vilsack et al., No. 08-cv-484,

25 2011 WL 6259891, at *3 (N.D. Cal. Oct. 13, 2011) (“Defendants have not shown that their

26 conduct prior to the remedies phase was substantially justified, so they have not shown substantial

27 justification.”); Innova Solutions v. Campagnolo, No. 17-cv-3674, 2021 WL 5889424, at *3 (N.D.

1 by substantial evidence, that is “a ‘strong indication’ that the ‘position of the United States’ in this

2 matter was not substantially justified.”).

3 Accordingly, Defendants fail to show that their original position was substantially justified.

4 b. Defendants Were Not Substantially Justifies in Defending the Validity of This

Action

5

Defendants argue that Defendants’ litigation conduct was reasonable because the Court’s

6

findings supported the reasonableness of Defendants’ positions. ECF 88 at 9–10. Plaintiffs argue

7

that Defendants made incorrect misrepresentations to the Court concerning Dwinnell Dam’s

8

association with NMFS. ECF 90 at 3–4. Plaintiffs also argue that Defendants’ litigation position

9

was not justified by law. Id. at 4.

10

As discussed above, Defendants fail to show that their original action in issuing the BiOp

11

and failure to issue an EIS was substantially justified. To the extent Defendants rely on the

12

Court’s findings to support their litigation conduct, the Court finds that such a reliance is

13

inapposite. Indeed, the Court ultimately held that Defendants’ actions were arbitrary and

14

capricious and remanded the issues relating to the BiOp and the EIS “to the National Marine

15

Fisheries Services with instruction to prepare a biological opinion that’s action area accounts for

16

the direct or indirect effects of the operation of Dwinnell Dam and prepare an Environmental

17

Impact Statement.” ECF 47 at 27–28. Although the Court found that NMFS’s application of the

18

safe harbor policy was lawful, Defendants have still failed to substantially justify their position at

19

each stage of the proceedings. Garcia v. Comm’r of Social Security, No. 23-cv-131, 2024 WL

20

714664, at *1 (N.D. Cal. Feb. 21, 2024) (“The government’s position must be substantially

21

justified at each stage of the proceedings.”) (internal quotations omitted). Nor do Defendants

22

attempt to justify the procedural errors underlying their arguments. Nielsen v. Colvin, No. 11-cv-

23

3379, 2015 WL 2174222, at *4 (N.D. Cal. May 8, 2015) (“[T]he Ninth Circuit has made clear that

24

‘basic and fundamental” procedural errors are difficult to justify.’”) (quoting Corbin v. Apfel, 149

25

F.3d 1051, 1053 (9th Cir. 1998)).

26

Accordingly, the Court finds that Defendants have failed to meet their burden in showing

27

both that their original position was substantially justified, and that Defendants were substantially

1 justified in defending the validity of the action in court.

2 iii. Plaintiffs’ Request for Attorneys’ Fees is Reduced in Part

3 The parties dispute (a) whether Thomas Wheeler is entitled to attorneys’ fees; (b) whether

4 attorneys’ fees should be based on San Francisco Market rates; (c) the scope of award for pre-

5 retained and pre-complaint work; (d) whether Plaintiffs’ fee request contains excessive and

6 duplicative work; and (e) whether the Court may award fees for administrative, clerical work. See

7 ECF 74 at 9–14; ECF 88 at 13–24.

8 “In California, both state and federal counts determine a reasonable fee award using the

9 lodestar method, which calculates fees by multiplying the number of hours reasonably expended

10 on the litigation by a reasonable hourly rate.” Moralez v. Monterey Plaza Hotel Limited

11 Partnership, No. 22-cv-7540, 2025 WL 2469334, at *2 (N.D. Cal. Aug. 27, 2025). “[T]he

12 established standard when determining a reasonable hourly rate is the rate prevailing in the

13 community for similar work performed by attorneys of comparable skill, experience, and

14 reputation.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008) (internal

15 quotations omitted). “Generally, when determining a reasonable hourly rate, the relevant

16 community is the forum in which the district court sits.” Id. “To inform and assist the court in the

17 exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence—in

18 addition to the attorney’s own affidavits—that the requested rates are in line with those prevailing

19 in the community for similar services by lawyers of reasonably comparable skill, experience and

20 reputation.” Id. at 980.

21 “Although in most cases, the lodestar figure is presumptively a reasonable fee award, the

22 district court may, if circumstances warrant, adjust the lodestar to account for other factors which

23 are not subsumed within it.” Camacho, 523 F.3d at 978. “When the district court makes its

24 award, it must explain how it came up with the amount.” Moreno v. City of Sacramento, 534 F.3d

25 1106, 1111 (9th Cir. 2008). “The explanation need not be elaborate, but it must be

26 comprehensible.” Id. “The fee applicant bears the burden of documenting the appropriate hours

27 expended in the litigation and must submit evidence in support of those hours worked.” Gates v.

a. Thomas Wheeler Performed Traditional In-House Counsel Tasks and is

1 Therefore Not Entitled to Attorneys’ Fees

2 Defendants argue that the Court should not award Mr. Wheeler attorneys’ fees because Mr.

3 Wheeler is Plaintiff Environmental Protection Information Center’s Executive Director and,

4 therefore, the client. ECF 22 at 20–21. Defendants also argue that Mr. Wheeler only served as a

5 conferring legal counsel to Plaintiffs’ counsel. Id. Plaintiffs argue that Mr. Wheeler worked as an

6 attorney in his capacity as co-counsel and provided substantive legal work. ECF 90 at 10.

7 “It is undisputed that in California, in-house counsel attorneys’ fee and costs are

8 compensable since there is no basis for discriminating between counsel working for a corporation

9 in-house and private counsel engaged with respect to a specific matter or on retainer.” Blade

10 Room Group, LLC v. Emerson Electric Co., No. 15-cv-1370, 2019 WL 13036321, at *6 (N.D. Cal.

11 Dec. 11, 2019) (internal quotations omitted). “However, where in-house counsel appears to have

12 been nothing more than a case manager and did not actively litigate any part of the case, fees for

13 that counsel may not be recovered.” Id.

14 A review of Mr. Wheeler’s declarations and billing statements show that his time was

15 dedicated to typical case manager, in-house counsel tasks, which include calling Frost, Yurok,

16 clients, and third parties; reading notes, drafts, and court filings; sending emails; participating in

17 strategy meetings; and proposing edits. See ECF 77. These are “typical in-house counsel tasks”

18 and are, therefore, not compensable. See Planned Parenthood Federation of America, Inc. v.

19 Center for Medical Progress, No. 16-cv-236, 2020 WL 7626410, at *5 (N.D. Cal. Dec. 22, 2020)

20 (“[A]dvising affiliates about the status and strategy of the litigation, seeking guidance for and

21 making strategic decisions for her clients, performing initial factual investigation, and then

22 reviewing and revising pleadings and motions . . . are typical in-house counsel tasks: acting as the

23 point person for client communication, supervising outside counsel and revising their work, and

24 making strategic decisions. That time is not compensable.”); Blade Room Group., 2019 WL

25 13036321 at *7 (finding counsel’s bringing of “technical expertise to the table” non-

26 compensable); compare with San Francisco Baykeeper v. City of Sunnyvale, No. 20-cv-824, 2024

27 WL 4227747, at *2 n.3 (N.D. Cal. Sept. 17, 2024) (“Fees for Baykeeper’s in-house counsel are

1 litigation work rather than serving as client liaisons.”).

2 Accordingly, the Court finds that Mr. Wheeler is not entitled to attorneys’ fees. Mr.

3 Wheeler’s requested fee total of $ 6,641.35 shall be deducted from the overall attorneys’ fee

4 calculation.

5 b. The Court Applies San Francisco Market Rates to Calculate Fees

6 Defendants argue that the Court should not rely on San Francisco market rates to calculate

7 Plaintiffs’ fees. ECF 88 at 13–18. According to Defendants’ the EAJA’s cap of $125 per hour

8 should apply. Id. Plaintiffs argue that the Court should apply enhanced San Francisco market

9 rates. ECF 74 at 12–16.

10 The Ninth Circuit applies a three-part test to determine whether to award enhanced

11 attorney’s fees pursuant to the EAJA. Nat. Res. Def. Council, Inc. v. Winter, 543 F.3d 1152, 1158

12 (9th Cir. 2008). In Love v. Reilly, the Ninth Circuit established the test as: (1) “the attorney must

13 possess distinctive knowledge and skills developed through a practice specialty;” (2) “those

14 distinctive skills must be needed in the litigation;” and (3) “those skills must not be available

15 elsewhere at the statutory rate.” Id. (quoting 924 F.2d 1492 (9th Cir. 1991)).

16 1. Peter Frost and Sangye Ince-Johannsen Possess Distinctive Knowledge

and Skills in Environmental Law

17

18 Plaintiffs argue that Peter Frost and Sangye Ince-Johannsen possesses distinctive

19 knowledge and skills in environmental litigation. ECF 74 at 12–13. Defendants concede that Mr.

20 Frost possess distinctive knowledge and skills, but argue that Mr. Ince-Johannsen does not possess

21 distinctive knowledge and skills. Id. at 14–15.

22 Here, Plaintiffs seek hourly rates for Mr. Ince-Johannsen of $450 in 2021, $465 in 2022,

23 $480 in 2023, $495 in 2024, and $510 in 2025. ECF 74 at 15 (citing Ince-Johannsen Decl. ¶ 14).

24 Mr. Ince-Johannsen obtained his J.D. in 2019 and earned certificates in both Environmental and

25 Natural Resources Law and International Law. ECF 76 ¶ 6. He also earned his school’s

26 Williamson Public Interest Environmental Law Award for “exceptional commitment, vision,

27 leadership, and creativity in the field of public interest environmental law”; and the

1 contributions to the school’s environmental, natural resources, and energy law program over the

2 course of my studies.” Id. After graduation, in 2019, Mr. Ince-Johannsen joined Western

3 Environmental Law Center as a legal fellow and was promoted to staff attorney in 2020. Id. ¶ 7.

4 He focuses on “wildlife and public land management, with particular emphases on the National

5 Environmental Policy Act and the ESA,” and has worked on several cases brought under the ESA,

6 National Environmental Policy Act, the Clean Water Act, and the APA. Id. ¶¶ 7–8. In addition to

7 his work at the Western Environmental Law Center, Mr. Ince-Johannsen also served as a

8 supervising attorney at the University of Oregon School of Law’s Environmental Law Clinic. Id.

9 ¶ 9. He has also served as a mentor for Lewis & Clark Law School students pursuing careers in

10 public interest environmental law and as a volunteer judge for Lewis & Clark Law School’s

11 environmental law moot court team. Id. ¶ 10.

12 The Court finds that Mr. Ince-Johannsen has demonstrated knowledge and skills––

13 particularly through his work at the Western Environmental Law and supervising attorney for

14 University of Oregon School of Law’s Environmental Law Clinic––in environmental law. See

15 Greenpeace, Inc. v. Stewart, 2020 WL 2465321, at *7 (9th Cir. 2020) (considering pre-law school

16 experience in evaluating distinctive knowledge and skills); Ingram v. Oroudjian, 647 F.3d 925,

17 928 (9th Cir. 2011) (courts may rely on their own knowledge of customary rates and their

18 experience concerning reasonable and proper fees); compare with Natural Resources Defense, 543

19 F.3d at 1160 (finding junior attorney lacked distinctive skills where the “attorneys had no

20 experience in environmental law other than what they gained in the concurrently litigated

21 companion case.”).

22 Accordingly, the Court finds that Plaintiffs have demonstrated that Mr. Ince- Johannsen

23 possess distinctive knowledge and skills. As Defendants concede, Mr. Frost also possesses

24 distinctive knowledge and skills.

25 2. Peter Frost’s and Sangye Ince-Johannsen’s Distinctive Knowledge and

Skills Were Necessary for This Litigation

26

Plaintiffs argue that distinctive skills were needed to prevail in this litigation. ECF 74 at

27

14. Defendants argue that distinct skills were not needed in this litigation. ECF 88 at 16–17.

1 The Court declines Defendants’ invitation to label this case as a routine case involving

2 environmental law. As explained by Plaintiffs’ supporting declaration:

3 this case was particularly complex, because it required such an

extraordinary amount of time and effort to work through detailed

4 NMFS documents, compare documents to ensure what was

represented in one was consistent (or not) with others, compare

5 documents with other parts of the Administrative Record (including

public comments on the EA), and to distill all of them to present to

6 the Court those facts material to the claims it was asked to resolve on

summary judgment . . . parsing out the specifics of the Flow

7 Management Strategy and figuring out its relationship to Tiers 1 to 3,

as well as helping develop grounds for the Court’s findings related to

8 the impacts of flows on the Shasta coho population, was not work an

attorney who generally handles civil litigation could or perhaps would

9 do.

10 See ECF 91. ¶ 5. The Court finds that Plaintiffs have sufficiently demonstrated that distinctive

11 knowledge and skills were needed in this litigation. See Center for Food Safety, 2011 WL

12 6259891 at *16 (“Rather, the question is whether an attorney has specialized knowledge that was

13 “needful for the litigation,” even if some tasks within the case did not require that specific

14 knowledge.”); see id. (relying on declaration to determine whether distinctive knowledge and

15 skills were needed in this litigation).

16 3. Plaintiffs Have Sufficiently Shown that Distinctive Knowledge and Skills

Were Not Available at the EAJA Statutory Rate

17

Defendants argue that Plaintiffs’ declarations, filed in support of Plaintiffs’ motion,

18

contains boilerplate language concerning available market rates. ECF 88 at 17–18. Plaintiffs

19

argue that qualified counsel was not available at the EAJA rate. ECF 90 at 7–9.

20

The Court finds that Plaintiffs have sufficiently demonstrated that their skills were not

21

available elsewhere at the statutory rate. Plaintiffs “diligently sought legal representation to

22

undertake this case, and was unable to find a qualified attorney who would agree to represent

23

Friends at the base rate under the Equal Access to Justice Act.” ECF 78 ¶ 2; see also ECF 77 ¶ 2

24

(“EPIC sought legal representation to undertake this case, but was unable to find a qualified

25

attorney who would agree to represent it at base rates under the Equal Access to Justice Act.”).

26

“[I]t is often very difficult to find qualified attorneys willing to litigate against federal agencies, in

27

part because of the uncertainty of any success, and because of the considerable resources of the

1 U.S. Department of Justice.” ECF 78 ¶ 2; ECF 77 ¶ 2 (“[I]n my experience, for even relatively

2 simple civil lawsuits (which this case was not) in the forum, qualified attorneys routinely charge

3 far higher than EAJA base rates.”).

4 Accordingly, the Court finds that Plaintiff have sufficiently demonstrated they were unable

5 to obtain counsel at the statutory EAJA minimum. See Center for Food Safety, 2011 WL

6 6259891, at *17 (declaration stating that plaintiff was unsuccessful in locating a private attorney at

7 the EAJA statutory rate sufficient to show unavailability of appropriate counsel at the statutory

8 rate).

9 4. The Court Declines Defendants’ Invitation to Apply Oregon Market Rates

10 Defendants also argue that, to the extent the Court considers enhanced fees, the Court

11 should apply the market rates of Oregon because Plaintiffs’ counsel performed work in Eugene,

12 Oregon. ECF 88 at 18–19. Defendants argue that “certain circuits have held that rates should

13 reflect the home market of the attorney when the home market is substantially less costly than the

14 forum market and is the site of the bulk of the legal work.” Id. at 19. Defendants concede that the

15 Ninth Circuit has not adopted this out of circuit rule. Id. Plaintiffs argue that there is no precedent

16 for departing from the Ninth Circuit’s forum rule. ECF 90 at 9.

17 The Court declines Defendants’ invitation to adopt a new rule from out of circuit

18 precedent. The Court follows the Ninth Circuit’s general rule that “when determining a

19 reasonable hourly rate, the relevant community is the forum in which the district court sits.”

20 Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 979 (9th Cir. 2008). Defendants fail to

21 provide binding caselaw warranting departure from the Ninth Circuit’s general rule. Accordingly,

22 the Court adopts the market rates for San Francisco, California.

23 * * *

24 Under the Love v. Reiley test, the Court finds that Plaintiffs have demonstrated that (1) Mr.

25 Frost and Mr. Ince-Johannsen possess distinct knowledge and skill in environmental law; (2) Mr.

26 Frost’s and Mr. Ince-Johannsen’s distinctive knowledge and skills were needed in this case; and

27 (3) Plaintiffs have shown that adequate counsel was not available at the EAJA’s statutory rate.

1 proper for this case. Defendants provide no other basis for reducing the rates for Mr. Frost and

2 Mr. Ince-Johannsen.

3 Accordingly, the Court shall apply the following rates for Mr. Frost and Mr. Ince-

4 Johannsen:

5 Mr. Frost: $835 in 2021; $850 in 2022; $865 in 2023; $880 in 2024; and $895 in 2025.

6 Mr. Ince-Johannsen: $450 in 2021; $465 in 2022; $480 in 2023; $495 in 2024; and $510 in

7 2025

8 c. Plaintiffs are Entitled to Pre-Retainer and Pre-Complaint Work

9 Defendants argue that Plaintiffs’ request for approximately 340 hours of pre-retainer and

10 pre-complaint work is unreasonable. ECF 88 at 22. Defendants argue that, at most, Plaintiffs are

11 entitled to 70 hours total for pre-retainer and pre-complaint work. Id. at 23. Plaintiffs concede

12 that a 20% reduction is appropriate for work performed before the execution of the November 24,

13 2021 Retainer Agreement (“pre-retainer work”). ECF 90 at 13. Plaintiffs argue that the Court

14 should award 258.40 hours for work performed between the November 24, 2021 Retainer

15 Agreement and the filing of the complaint on June 15, 2022 (“pre-complaint work”). Id.

16 Mr. Frost and Mr. Ince-Johannsen spent 78.1 combined on pre-retainer work. ECF 91 at ¶

17 6; Id. Exh. E; ECF 100 12. Because Plaintiffs concede that a 20% reduction of the applicable

18 hours for pre-retainer work is appropriate, the Court shall deduct $11,333.30 from the overall fee

19 calculation.

20 Regarding pre-complaint work, Plaintiffs seek a total of 248.7 hours for work done by Mr.

21 Frost and Mr. Ince-Johannsen, totaling $164,116.50. ECF 91, Exh. E. As Defendants conceded

22 during oral argument, there were a number of stakeholders involved in this litigation. Plaintiffs

23 were required to prepare an extensive background investigation into the Shasta River, the coho

24 salmon, and respective Indian tribes. ECF 91 at ¶¶ 3, 12. Notably, in 2013, NMFS began to work

25 with a group of private, state, and municipal landowners and water districts to develop

26 conservation measures to benefit the SONCC coho salmon in exchange for certain regulatory

27 assurances. ECF 47 at 5. Considering that Plaintiffs’ counsel was first approached about the case

1 approximately eight years of research. Given the extensive history and necessary research

2 required for this case, the Court finds that a total of 248.7 hours for pre-complaint work, totaling

3 $164,116.50, is appropriate.

4 d. The Court Denies Defendants’ Unspecified Request for Reduction of Alleged

Excessive and Duplicative Work

5

Defendants argue that Plaintiffs’ request for attorneys’ fees involves 50 hours of excessive

6

or duplicative work. ECF 88 at 23. Defendants, therefore, request that the Court reduce the hours

7

of excessive or duplicative work by 50%. Id. Plaintiffs argue that Defendants fail to provide a

8

sufficient explanation for excessive and duplicative work. ECF 90 at 13–14. To the extent the

9

Court is inclined to reduce Plaintiffs’ attorneys’ fees for excessive or duplicative work, Plaintiffs

10

suggest that the Court reduce the amount of fees by no more than 10 percent pursuant to Moreno

11

v. City of Sacramento, 534 F.3d 1106 (9th Cir. 2008). ECF 100 at 13–14.

12

The Court finds that a reduction for excessive and duplicative work is not here. Notably,

13

Defendants’ request for a 50% reduction “requires a more specific explanation . . . [Defendants]

14

only state[] conclusorily that the amount of time spent was excessive.” Pollinator Stewardship

15

Council v. U.S. EPA, No. 13-72346, 2017 WL 3096105, at *11 (9th Cir. June 27, 2017). Because

16

Defendants fail to provide a more specific explanation, the Court denies Defendants requests to for

17

a 50% reduction of alleged excessive and duplicative work.

18

e. The Court Grants in Part Defendants’ Unspecified Request for Reduction of

19 Administrative Work

20 Defendants argue that the Court should deduct 30 hours, or $23,592.30, from Plaintiffs’

21 requested fees because the 30 hours consists of administrative, non-compensable work. ECF 88 at

22 24. Plaintiffs argue that Defendants mischaracterize Plaintiffs’ time entries and, to the extent the

23 Court is inclined to reduce Plaintiffs’ fees, the Court should consider the Moreno approach. ECF

24 90 at 14–15.

25 Having reviewed Plaintiffs’ billing records and time entries, the Court agrees that a 10%

26 reduction of 30 hours for administrative/clerical work under the Moreno approach is warranted in

27 this case. See Moreno, 534 F.3d at 1112 (“[T]he district court can impose a small reduction, no

1 specific explanation.”). Plaintiffs’ billing records include attorneys’ fees charges for clerical tasks,

2 such as “print out edits/questions brief as whole” and “document prep.” ECF 88-10. See Neil v.

3 Comm’ of SSA, 495 F. App’x. 845, 847 (9th Cir. 2012) (“We find that the district court did not

4 abuse its discretion in declining to award Neil attorney’s fees for purely clerical tasks such as

5 filing documents and preparing and serving summons.”). Such clerical tasks are appropriately

6 reduced. Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009) (“When clerical tasks are billed

7 at hourly rates, the court should reduce the hours requested to account for the billing errors.”).

8 * * *

9 Having reviewed the parties’ briefings, declarations, and exhibits, and having considered

10 the parties written and oral arguments, the Court finds that Plaintiffs’ motion for attorneys’ fees

11 was properly brought under the EAJA because Plaintiffs’ claims concerning the BiOp and EIS

12 were under the APA. The Court also finds that Plaintiffs’ motion is timely under the EAJA; Mr.

13 Wheeler is not entitled to attorneys’ fees; and application of enhanced fees at the San Francisco

14 market rate is proper. The Court further finds that Plaintiffs are entitled to a reduced amount for

15 pre-retainer work, but full amount for pre-complaint work. The Court denies Defendants’

16 unspecified request for reduction of alleged excessive and duplicative work, but finds that a 10%

17 reduction of 30 hours for clerical work is appropriate.

18 Accordingly, the Court calculates attorneys’ fees as follows: $692,832.62 (Plaintiffs total

19 requested attorneys’ fees not including $1,721.28 for costs and expenses) – $6,641.35 (attorneys’

20 fees for Mr. Wheeler) – $11,333.30 (agreed 20% reduction of applicable pre-retainer work) –

21 $2,392.00 (10% reduction of 30 hours for clerical work) = $672,465.97

22 Accordingly, the Court awards Plaintiffs’ attorneys’ fees of $672,465.97.

23 C. The Court Grants Plaintiffs’ Motion for Costs and Other Expenses

24 Plaintiffs request $1,721.28 for costs and other expenses under the EAJA. ECF 74 at 16.

25 Defendants argue that the Court should deduct $974.49 for travel costs. ECF 88 at 24.

26 The Court finds that Plaintiffs’ request for $1,721.28 in costs and expenses is proper.

27 Costs for travel are appropriately awarded under the EAJA. See Fang v. Gonzalez, No. 03-71352,

] photocopying, Federal Express, and travel charges incurred by his attorney. Contrary to the

2 || government’s contention, these charges by Fang’s attorney may be awarded under EAJA, in

3 addition to the costs taxed by the court.”).

4 || Iv. CONCLUSION

5 For the reasons above, the Court GRANTS IN PART AND DENIES IN PART

6 || Plaintiffs’ motion for attorneys’ fees, costs, and expenses. The Court awards Plaintiffs’ attorneys’

7 || fees of $672,465.97 and $1,721.28 for costs and expenses. Accordingly, Plaintiffs’ total award for

8 attorneys’ fees, costs, and expenses is $672,638.25. The Court also DENIES Defendants

9 || objections to Plaintiffs’ reply arguments and declarations.

10

11 IT IS SO ORDERED.

gq 12 Dated: December 22, 2025

1 T

14 United States District Judge

16

17

Oo

Z 18

19

20

21

22

23

24

25

26

27

28