Ecological Rights Foundation v. United States Army Corps of Engineers, et al.

— 1 — — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA — 8 — 9 ECOLOGICAL RIGHTS FOUNDATION, Case No. 23-cv-05309-MMC 10 Plaintiff, ORDER GRANTING IN PART, 11 v. DENYING IN PART PLAINTIFF'S MOTION FOR ATTORNEYS' FEES 12 UNITED STATES ARMY CORPS OF AND COSTS ENGINEERS, et al., 13 Re: Dkt. No. 50 Defendants. — 14 — 15 On October 17, 2023, plaintiff Ecological Rights Foundation (“EcoRights”) filed the 16 above-titled action. Now before the Court is its “Motion for Attorneys’ Fees and Costs.” 17 Defendants U.S. Army Corps of Engineers (“USACE”) and National Marine Fisheries 18 Service (“NMFS”) have jointly filed an Opposition, to which EcoRights has replied. 19 Having read and considered the papers filed in support of and in opposition to the motion, 20 the Court rules as follows. — 21 — 22 BACKGROUND 23 Plaintiff EcoRights is a California “non-profit, public benefit corporation, . . . 24 devoted to furthering the rights of all people to a clean, healthful, and biologically diverse 25 environment.” (See Compl. ¶ 15). Defendant USACE “exercises regulatory authority” 26 over facilities along the Yuba River pursuant to the Clean Water Act (see Compl. ¶ 24), 27 and defendant NMFS “is responsible for taking certain conservation actions affecting . . . 1 “seek[ing] to understand [USACE’s] and NMFS’ actions and policies that threaten the 2 Yuba River” (see Compl. ¶ 20), submitted several Freedom of Information Act (“FOIA”) 3 requests it anticipated would “shed light on these environmental effects” and “inform 4 ongoing and future advocacy efforts” (see Compl. ¶ 4). 5 A. FOIA Requests at Issue 6 On May 8, 2023, EcoRights submitted two FOIA requests to USACE (see Compl. 7 ¶¶ 40, 41) along with “four companion FOIA requests to NMFS” (see Compl. ¶ 51). The 8 requests directed at USACE sought all correspondence between USACE and NMFS 9 “regarding Daguerre Point Dam, the Brophy Diversion, the Cordua Diversion, Englebright 10 Dam, and the Narrows 1 and Narrows 2 hydropower facilities on the Yuba River in 11 California.” (See Compl. ¶ 4; see also Declaration of Stuart Wilcox in Support of Motion 12 for Attorneys’ Fees and Costs (hereinafter, “Wilcox Decl.”) Ex. 2 at 2, 11-12).1, 2 The 13 requests directed at NMFS sought the same information, plus any “internal NMFS 14 correspondence” regarding the above-referenced facilities on the Yuba River. (See 15 Compl. ¶ 51; see also Graff Decl. Attachs. 1, 2, 9, 11).3 Additionally, each of the above16 — 17 — 1 In citing to pages, the Court uses herein the numbers assigned thereto by the filer and, in the absence thereof, to the numbers assigned by this District’s electronic — 18 — filing system. — 19 — 2 Specifically, the FOIA requests sent to USACE asked for “[a]ll correspondence between the Corps Sacramento District, San Francisco Division and Headquarters, and — 20 — the National Marine Fisheries Service . . . concerning Daguerre Point Dam, the Brophy Diversion, and the Cordua Diversion on the Yuba River in California” (see Wilcox Decl. — 21 — Ex. 2 at 2) and “[a]ll correspondence between the Corps Sacramento District, San Francisco Division and Headquarters, and the National Marines Fisheries Service . . . — 22 — concerning Englebright Dam, and the Narrows 1 and Narrows 2 hydropower facilities on the Yuba River in California” (see Wilcox Decl. Ex. 2 at 11-12). — 23 — 3 Specifically, the FOIA requests sent to NMFS asked for “[a]ll correspondence — 24 — between NMFS and U.S. Army Corps of Engineers . . . concerning Daguerre Point Dam, the Brophy Diversion, and the Cordua Diversion,” (see Graff Decl. Attach. 1 at 2), “[a]ll — 25 — correspondence between NMFS and the U.S. Army Corps of Engineers . . . concerning Englebright Dam, and Narrows 1 and Narrows 2 hydropower facilities” (see Graff Decl. — 26 — Attach. 2 at 2), “[a]ll internal agency communications between any NMFS staff concerning Daguerre Point Dam, and two associated water diversions- the Brophy — 27 — Diversion and the Cordua Diversion- on the Yuba River in California” (see Graff Decl. 1 referenced requests sought production “either in the original computer file format the 2 documents were created in and are presently stored in or in the form of TIFF files 3 accompanied with load files rendering the documents usable in standard legal profession 4 document processing software.” (See, e.g., Wilcox Decl. Ex. 2 at 3 unnumbered 5 paragraph 4) 6 B. Records Productions 7 The Court addresses the defendants’ records productions in the chronological 8 order in which they were made. 9 1. NMFS’s Productions 10 On May 11, 2023, NMFS received the four above-referenced FOIA requests from 11 EcoRights (see Graff Decl. ¶ 4), two of which, as noted, sought correspondence between 12 USACE and NMFS. On May 17, 2023, those two requests were, with EcoRights’ 13 agreement, consolidated into a single request. (See Graff Decl. ¶¶ 5-7). On July 7, 14 2023, NMFS provided EcoRights with a determination letter in response to the 15 consolidated request, notifying EcoRights that it would produce 72 records in full and that 16 it had identified 63 records that originated with USACE, which would be referred to 17 “USACE for a release determination/direct response.” (See Graff Decl. Attach. 5 at 2).4 18 On July 26, 2023, NMFS provided EcoRights with a determination letter in 19 response to EcoRights’ request for internal communications concerning the Daguerre 20 Point Dam, the Brophy Diversion, and the Cordua Diversion, notifying EcoRights that it 21 would produce “276 records in full,” would produce “12 records with partial redactions,” 22 and would withhold 111 records in full. (See Graff Decl. ¶ 16). 23 On August 22, 2023, NMFS provided EcoRights with a determination letter in 24 response to EcoRights’ request for internal communications regarding the Englebright — 25 — Yuba River in California (see Graff Decl. Attach. 11 at 2). — 26 — 4 As both parties, throughout their respective briefing, use Arabic numerals in — 27 — connection with their references to production, the Court, for ease of reference, does so 1 Dam, notifying EcoRights that it would produce 142 records in their entirety, would 2 produce one record with partial redactions, would withhold 11 records in full, and that it 3 had identified one record that originated with USACE, which would be referred to 4 “USACE for a release determination/direct response.” (See Graff Decl. Attach. 12 at 2). 5 All three letters stated the determinations “complete[d] [NMFS’s] response to 6 [EcoRights’] request” and notified EcoRights of its right to file an administrative appeal. 7 (See Graff. Decl. Attachs. 5, 10, 12). 8 2. USACE’s Productions 9 On December 30, 2023, USACE provided EcoRights with a determination letter 10 regarding the FOIA requests made directly to USACE as well as the records that were 11 referred to USACE by NMFS (see Herrera Decl. ¶ 6, Ex. B), notifying EcoRights that it 12 would “provide[ ] [EcoRights] with most of the information requested” from USACE but 13 that some records would be partially redacted and some would be withheld. (See 14 Herrera Decl. Ex. B at 2).5 USACE also notified EcoRights that it had identified 45 15 records that originated with NMFS and were being referred to NMFS “for a review/release 16 determination and a direct response.” (See Herrera Decl. Ex. B at 2).6 The records 17 referred to USACE from NMFS were released in full. (See Herrera Decl. Ex. B at 3). 18 On February 8, 2024, EcoRights sent a conferral letter to USACE and NMFS, 19 identifying 91 records purportedly missing from the productions made as of that date. 20 (See Wilcox Decl. Ex. 5). After reviewing the conferral letter, USACE undertook 21 additional searches and “identified 40 records to be released in full, 42 records to be 22 withheld in full, and one record to be released with redactions,” the 41 released records — 23 — — 24 — 5 The determination letter does not include the specific number of records referenced therein. — 25 — 6 NMFS received the referral on January 4, 2024 (see Martin Decl. ¶ 4) and — 26 — produced 38 records to EcoRights on January 17, 2024 (see Martin Decl. Attach. 2 at 2). The remaining 8 records were referred back to USACE, as NMFS deemed them — 27 — “unresponsive,” and USACE produced those records to EcoRights the next day. (See 1 addressing 17 of the 91 records EcoRights, in its conferral letter, had listed as “missing.” 2 (See Herrera Decl. ¶ 10). On March 13, 2024, the 41 records were produced to 3 EcoRights (see Herrera Decl. ¶ 10), and, on April 3, 2024, an additional 5 records, 3 of 4 which EcoRights, in its conferral letter, had listed as “missing,” were provided to 5 EcoRights (see Herrera Decl. ¶ 11). 6 3. Form and Format of Productions 7 The February 8, 2024, conferral letter sent by EcoRights to USACE and NMFS 8 also reiterated EcoRights’ request as to format, namely, that documents be produced 9 “either in the original computer file format the documents were created in and are 10 presently stored in or in the form of TIFF files accompanied with load files rendering the 11 documents usable in standard legal profession document processing software.” (See 12 Wilcox Decl. Ex. 5 at 2). Up to that point both USACE and NMFS had produced all 13 documents to EcoRights in PDF format. (See Martin Decl. ¶¶ 15-18; see also Wilcox 14 Decl. ¶ 18; Herrera Decl. ¶ 13). 15 On June 10, 2024, following various email exchanges between the parties’ 16 counsel (see Wilcox Mot Decl. ¶9, Ex. 9), “[d]efendants agreed to produce in native 17 format: (1) all records produced by [USACE] that had not yet been produced in native 18 format (except records that had been partially redacted, as per EcoRights’ compromise 19 proposal) and (2) all records referred to NMFS from [USACE]” (see Wilcox Decl. ¶ 28); 20 “[d]efendants also agreed to produce an index of metadata for all records referred to 21 [USACE] from NMFS” (see Wilcox Decl. ¶ 28). 22 In accordance with said agreement, USACE, on June 18, 2024, sent to EcoRights 23 the above-referenced “index of metadata,” after which USACE, on July 3, 2024, produced 24 in native format records responsive to the first of the above-referenced categories of 25 documents and, on July 22, 2024, produced in native format records responsive to the 26 second of the above-referenced categories of documents. (See Herrera Decl. Ex. O at 27 2). The July 22, 2024, releases were the final document productions in response to the 1 EcoRights, based on what it characterizes as the “excellent results it achieved” 2 (see Mot. at 4:14-15), brings the instant motion for an award of attorneys’ fees and costs 3 pursuant to 5 U.S.C. § 552 (a)(4)(E). — 4 — 5 DISCUSSION 6 “FOIA provides that a ‘court may assess against the United States reasonable 7 attorney fees and other litigation costs reasonably incurred in any case under [FOIA] in 8 which the complainant has substantially prevailed.’” Poulsen v. Dep’t of Defense, 994 9 F.3d 1046, 1050 (9th Cir. 2021) (quoting 5 U.S.C. § 552 (a)(4)(E)(i)). A FOIA plaintiff 10 requesting an award of attorney fees “must show that it is both eligible for, and entitled to, 11 such fees.” See Hiken v. Dep’t of Defense, 836 F.3d 1037, 1043 (9th Cir. 2016). 12 Here, however, prior to determining EcoRights’ eligibility and entitlement to a fee 13 award, the Court addresses NMFS’s argument that EcoRights’ failed to exhaust its 14 administrative remedies as to NMFS, such exhaustion, NMFS asserts and EcoRights 15 does not dispute, being a prerequisite to an award of attorneys’ fees in FOIA actions.7 16 A. Administrative Exhaustion 17 A FOIA requester may “challenge the adequacy of [an agency’s] response in court 18 if [it] is dissatisfied, but [it] must first exhaust available administrative remedies, including 19 an appeal within the agency.” See Corbett v. Transp. Sec. Admin., 116 F.4th 1024 , 1025 20 (9th Cir. 2024) (internal quotation and citation omitted). Where an agency has failed to 21 render a determination within the statutory time limit,8 however, such requester is 22 “deemed to have exhausted [its] administrative remedies.” See 5 U.S.C. 23 § 552(a)(6)(C)(i). Nevertheless, if the requester waits to sue until after the agency has — 24 — — 25 — 7 “USACE does not contest eligibility to fees—as to USACE.” (See Opp. at 10 n.2). — 26 — 8 Agencies must “determine within 20 [working] days . . . whether to comply” with a — 27 — FOIA request, see 5 U.S.C. § 552 (a)(6)(A)(i), or within thirty working days “[i]n unusual 1 responded, such requester is, once again, “required to pursue [its] administrative 2 remedies.” See Aguirre v. U.S. Nuclear Reg. Comm’n, 11 F.4th 719 , 725 (9th Cir. 2021). 3 For an agency response to a FOIA request to constitute a “determination” so as to 4 “trigger the administrative exhaustion requirement, the agency must at least: (i) gather 5 and review the documents; (ii) determine and communicate the scope of the documents it 6 intends to produce and withhold, and the reasons for withholding any documents; and 7 (iii) inform the requester that it can appeal whatever portion of the ‘determination’ is 8 adverse.” See Citizens for Resp. & Ethics in Wash. v. Fed. Election Comm’n, 711 F.3d 9 180, 188 (D.C. Cir. 2013) (hereinafter, “CREW”).9 10 Here, NMFS issued its responses to EcoRights’ FOIA requests prior to October 11 17, 2023, the date on which the instant action was filed. Consequently, if NMFS’s 12 responses constitute “determinations,” EcoRights had an obligation to exhaust its 13 administrative remedies. 14 As set forth in detail above, NMFS’s responses informed EcoRights of which 15 documents it intended to produce, which documents it would withhold, and which 16 documents it would refer to USACE. Additionally, each such response stated that NMFS 17 would take no further action regarding the FOIA requests to which it was responding. 18 Notwithstanding NMFS’s statement that it was taking no further action as to the 19 requested records, EcoRights contends the responses were not “determinations” 20 because, as to the records NMFS identified as originating with USACE and referred to — 21 — 9 The Ninth Circuit has not had occasion to determine what responses constitute — 22 — “valid ‘determinations’ for purposes of re-triggering the exhaustion requirement.” See Aguirre, 11 F.4th at 726 n.1. Courts across the country, however, have given — 23 — “appropriate deference” to the decisions of the District of Columbia courts, given their substantial expertise in FOIA matters. See, e.g., Our Children’s Earth Found. v. U.S. — 24 — Env’t Prot. Agency, No. C 08–01461 SBA, 2008 WL 3181583 , at *6 (N.D. Cal. Aug. 4, 2008); Knight First Amend. Inst. at Columbia Univ. v. U.S. Customs & Immigr. Servs., 30 25 F.4th 318 , 324 n.4 (2d Cir. 2022) (recognizing the Second Circuit has “frequently noted the District of Columbia Circuit's ‘particular FOIA expertise’ and looked to its decisions for — 26 — guidance in interpreting the FOIA”). Accordingly, this Court, like others in this District, see, e.g., Ctr. for Investigative Reporting v. U.S. Dep’t of Just., No. 21-cv-09613-SK, — 27 — 2022 WL 19915778 , at *2 (N.D. Cal. May 19, 2022), uses the CREW framework in 1 USACE, NMFS “did not determine and communicate the documents [it] intend[ed] to 2 produce and withhold, and the reasons for [any] withholding.” (See Mot. at 6:9-16) 3 (internal quotation and citation omitted). According to EcoRights, it was not until 4 December 30, 2023, when USACE decided to release all of the records referred to it by 5 NMFS, that a “determination” was actually made as to EcoRights’ requests. 6 In support thereof, EcoRights points to authority holding that when an agency 7 refers a document request to another agency the onus of FOIA compliance remains with 8 the agency that received the initial FOIA request. See Keys v. Dep’t of Homeland Sec., — 9 — 570 F. Supp. 2d 59, 70 (D.D.C. 2008) (holding agency receiving FOIA request “not 10 absolved of its obligations under FOIA when it refers the documents elsewhere”). 11 NMFS’s liability for USACE’s failure to itself act with regard to the referred records does 12 not, however, mean NMFS has failed to issue a “determination.” Rather, such failure 13 constitutes a withholding (see Compl. ¶ 57) (alleging NMFS and USACE “are 14 constructively withholding” referred records), and, depending on the length thereof, 15 NMFS may be deemed to have improperly withheld the documents it referred to USACE, 16 see McGehee v. CIA, 697 F.2d 1095, 1110 (D.C. Cir. 1983) (finding referral may amount 17 to “withholding” where it “significantly . . . increase[s] the amount of time [requester] must 18 wait”). 19 Regardless of which agency ultimately is liable for the withholding, however, it is 20 clear that at the time EcoRights filed suit, NMFS had produced all the records it expressly 21 stated it would produce and that the referred records were being withheld.10 In other 22 words, at the time the instant action was filed, all records were accounted for as either 23 produced or withheld, and, consequently, the Court finds NMFS’s determination letters 24 contained “adequate specificity, such that any withholding [could] be appealed — 25 — — 26 — 10 FOIA requires records not withheld to be made “promptly available to any person.” See 5 U.S.C. § 522 (a)(3)(A). The D.C. Circuit has interpreted this language to — 27 — require production, depending on the circumstances, “within days or a few weeks of a 1 administratively.” See CREW, 711 F.3d at 189 (citing 5 U.S.C. § 552 (a)(6)(A)(i)). 2 EcoRights next contends any such appeal would have been futile, and, thus, that 3 the exhaustion requirement should be waived. The Court disagrees. 4 If EcoRights had filed an administrative appeal, NMFS could have decided it did 5 “not want to wait for another agency to act,” a decision EcoRights argues should have 6 been made at the outset (see Reply at 3:24-26), and, given such revised position, NMFS 7 could have produced the requested records itself even though agencies “should typically 8 refer . . . record[s] to the component or originating agency for direct response,” see 15 9 C.F.R. § 4.5 (b). Because EcoRights failed to exercise its appeal rights and sued, 10 however, NMFS was not provided the opportunity to reconsider its decision or to build a 11 factual record relevant to the manner in which both NMFS and USACE handled the 12 requests. See Joint Bd. of Control of Flathead, Mission & Jocko Irr. Dists., 862 F.2d 195 , 13 200 (9th Cir. 1988) (finding “exhaustion rule allows an administrative agency to develop a 14 complete factual record, to apply its expertise and discretion, and possibly to resolve the 15 conflict without judicial intervention”). 16 In sum, because EcoRights did not exhaust its administrative remedies as to 17 NMFS, it is not eligible for an award of attorneys’ fees as against NMFS. 18 B. Prevailing Party 19 Even if EcoRights’ failure to exhaust its administrative remedies were not a bar to 20 its eligibility for a fees award against NMFS, EcoRights is not eligible for an award of fees 21 because, as defendants argue, it has not substantially prevailed on its claims against 22 NMFS. See Long v. U.S. Internal Revenue Serv., 932 F.2d 1309, 1313 (9th Cir. 1991) 23 (holding “[a] complainant in a FOIA action is deemed to be eligible for fees if [it] has 24 ‘substantially prevailed’ on [its] claim”). In response, EcoRights relies on the “catalyst 25 theory.” To succeed under the catalyst theory, “a plaintiff must demonstrate a voluntary 26 or unilateral change in position by the agency, if [plaintiff’s] claim is not insubstantial.” 27 See Poulsen v. Dep’t of Defense, 994 F.3d 1046 , 1051-52 (9th Cir. 2021) (internal 1 In that regard, EcoRights first argues the lawsuit caused the production of an 2 “index of metadata” from NMFS. (See Reply at 5:3-11). Such index, however, was not 3 what EcoRights asked for in its FOIA requests but, rather, was provided as a courtesy. 4 EcoRights further argues NMFS produced additional records after being sent the 5 conferral letter. (See Wilcox Reply Decl. ¶¶ 6-8). There has been no showing, however, 6 that those records would not have been produced absent the lawsuit. In particular, 7 NMFS had been working cooperatively with EcoRights before the filing of the lawsuit, it 8 continued to do so during the lawsuit, and the production on which EcoRights relies did 9 not represent a change in any position taken by NMFS. Moreover, there has not been a 10 showing that NMFS was even the party that produced the records. To the extent 11 EcoRights argues USACE’s production of records impliedly originating with NMFS 12 constitutes a production by NMFS, there is no indication that the release was in fact 13 authorized by NMFS. Indeed, USACE has not hesitated to release records originating 14 with NMFS irrespective of NMFS’s determination to the contrary. (See Martin Decl. ¶ 7) 15 (describing eight records NMFS found non-responsive and that USACE nevertheless 16 decided to produce). 17 The Court next turns to the question of whether EcoRights is entitled to an award 18 of fees against USACE. 19 C. Entitlement to Fees 20 Once a FOIA plaintiff is found eligible for attorneys’ fees, “the district court has 21 discretion to determine whether the plaintiff is entitled to fees.” See Oregon Nat. Desert 22 Ass'n v. Locke, 572 F.3d 610, 614 (9th Cir. 2009). “In exercising such discretion, the 23 district court must consider: (1) the public benefit from disclosure, (2) any commercial 24 benefit to the plaintiff resulting from disclosure, (3) the nature of the plaintiff's interest in 25 the disclosed records, and (4) whether the government's withholding of the records had a 26 reasonable basis in law.” Hiken, 836 F.3d at 1044 (internal quotation and citation 27 omitted). 1 1. Public Benefit 2 The public benefit factor draws “a distinction . . . between [a] plaintiff who seeks to 3 advance his private commercial interests and . . . [a] public interest group seeking 4 information to further a project benefiting the general public.” See Davy v. CIA, 550 F.3d 5 1155, 1158 (D.C. Cir. 2008). In weighing this factor, courts consider “the public benefit 6 derived from the case,” including “both the effect of the litigation . . . and the potential 7 public value of the information sought.” See id. at 1159. 8 Here, EcoRights points out that it “sought records that would shed light on . . . 9 whether [defendants] are complying with their ESA [Endangered Species Act] duties to 10 ensure [USACE]-managed dams are not jeopardizing ESA-listed species and their 11 habitat” (see Mot. at 12:16-18), which information would serve to provide insight into 12 matters of public concern. 13 Accordingly, the first factor weighs in favor of an award of fees. 14 2. Commercial Benefit and Nature of Plaintiff’s Interest 15 Courts consider the second and third factors together to determine “whether the 16 plaintiff had a sufficient private incentive to pursue his FOIA request even without the 17 prospect of obtaining attorneys’ fees.” See McKinley v. Fed. Hous. Fin. Agency, 739 18 F.3d 707, 712 (D.C. Cir. 2014) (internal quotation and citation omitted). Where “a litigant 19 seeks disclosure for a commercial benefit or other personal reasons, an award of fees is 20 usually inappropriate.” See Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995). 21 Where a plaintiff is “a nonprofit public interest group, an award of attorney's fees furthers 22 the FOIA policy of expanding access to government information.” See Church of 23 Scientology of Cal. v. U.S. Postal Serv., 700 F.2d 486 , 494 (9th Cir. 1983). 24 Here, EcoRights, a non-profit, public benefit corporation, sought disclosure of 25 information relevant to a matter of public concern rather than a matter of private interest 26 or private benefit. 27 Accordingly, the second and third factors weigh in favor of an award of fees. 1 3. Reasonable Basis for Withholding 2 “The fourth factor is ‘whether the government’s withholding had a reasonable basis 3 in law’; in other words, whether the government’s actions appeared to have ‘a colorable 4 basis in law’ or instead appeared to be carried out ‘merely to avoid embarrassment or to 5 frustrate the requester.’” See Ecological Rights Found. v. Fed. Emergency Mgmt. 6 Agency, 365 F. Supp. 3d 993, 1001 (N.D. Cal. June 14, 2018) quoting Church of 7 Scientology, 700 F.2d at 492 n.6. The burden is on the agency to show “it had any 8 colorable or reasonable basis for not disclosing the material.” See Davy, 550 F.3d at 9 1163. 10 Here, EcoRights argues the fourth factor weighs in its favor because USACE had 11 no reasonable basis for failing to produce the responsive records in the requested format 12 or for its delay in responding to the requests. (See Mot. at 13:22-14:4). 13 In opposition, USACE points to its typical practice of collecting and processing 14 FOIA records as PDF files rather than in native format. (See Opp. at 17:8-11). FOIA 15 makes clear, however, that “an agency shall provide the record in any form or format 16 requested by the person if the record is readily reproducible by the agency in that form or 17 format,” see 5 U.S.C. § 552 (a)(3)(B), and USACE has not made any showing that the 18 records were not “readily reproducible” in the requested format.11 19 As to its delay in responding to the requests, USACE argues its response was 20 “driven by resource constraints, not agency recalcitrance.” (See Opp. at 16:19-20). 21 Courts have found, however, that “administrative delay and FOIA backlog do not form a 22 reasonable basis in law for withholding documents.” See Urban Air Initiative, Inc. v. 23 Environmental Protection Agency, 442 F. Supp. 3d 301 , 319-20 (D.D.C. 2020) (internal 24 quotation and citation omitted) (collecting cases and holding fourth factor “weighs slightly 25 in favor of plaintiffs” where “only reason provided for delay was lack of resources”). The — 26 — — 27 — 11 By contrast, NMFS submitted evidence that the records requested from NMFS 1 cases on which USACE relies do not hold to the contrary but, rather, stand only for the 2 proposition that an administrative delay on its own is not sufficient to support an award of 3 fees. See, e.g., Castillo v. United States Customs, No. 23-cv-03110-RS, 2024 WL 4 1182865, at *4 (N.D. Cal. Mar. 19, 2024) (finding, where plaintiff’s FOIA request “[did] not 5 implicate any significant public interests, and the public [could not] be said to have 6 derived any benefit from [the] case,” defendant’s failure “to comply strictly with the 7 statutory timing requirements [was] insufficient to support a fee award”). 8 Accordingly, USACE having failed to carry its burden of showing it had a 9 reasonable basis for its untimely production and failure to produce in the requested 10 format, the Court finds the fourth factor weighs in favor of an award of fees. 11 4. Balance of Factors 12 The “four factors are not equally weighted—they each involve a sliding scale, 13 allowing one or more factors to outweigh the others.” See Schoenberg v. Fed. Bureau of 14 Investigation, 2 F.4th 1270 , 1278 (9th Cir. 2021). Because the factors are “rather 15 amorphous,” see Morley v. Central Intelligence Agency, 894 F.3d 389, 390 (D.C. Cir. 16 2018), district courts are provided “very broad” discretion in balancing the factors when 17 they “point in different directions.” See Schoenberg, 2 F.4th at 1278. 18 Here, defendants argue, the fourth factor tips the balance in favor of denying fees 19 even though the other three factors favor an award of fees. (See Opp at 14:15-21); see 20 also, e.g., Schoenberg, 2 F.4th at 1277-78 (holding “district court acted within its 21 discretion to deny [plaintiff] fees” even though “the first three factors favored fees and 22 only the fourth disfavored fees”). As explained above, however, the fourth factor does 23 not weigh against an award here, as USACE has not proffered a reasonable basis in law 24 for either its decision to produce records in PDF format or for its delayed response. 25 In sum, all four factors weigh in favor of an award of fees, and, consequently, the 26 balance of factors weighs in favor of granting an award of fees and costs against USACE. 27 The Court next turns to a determination of the appropriate size of such award. See Long 1 court has determined that the plaintiff is both eligible for and entitled to recover fees, the 2 award must be given and the only room for discretion concerns the reasonableness of 3 the amount requested”). 4 D. Amount of Award 5 EcoRights seeks an award of fees in the amount of $166,840.20 and an award of 6 costs in the amount of $1,122.62. (See Sproul Reply Decl. ¶ 5). 7 “The customary method for awarding fees is the lodestar method, which is 8 performed by multiplying the number of hours reasonably expended by the prevailing 9 party in the litigation by a reasonable hourly rate.” Hiken, 836 F.3d at 1044 (internal 10 quotation and citation omitted). In light thereof, a plaintiff seeking an award of fees “must 11 submit [such plaintiff’s] bill to the court for its scrutiny” as to the reasonableness of both 12 the hourly rate and the number of hours expended. See Long, 932 F.2d at 1313-14 . 13 That being said, “[t]he essential goal in shifting fees (to either party) is to do rough justice, 14 not to achieve auditing perfection,” and, consequently, “trial courts need not, and indeed 15 should not, become green-eyeshade accountants.” See Fox v. Vice, 563 U.S. 826 , 838 16 (2011). 17 The Court begins with its analysis of the reasonableness of the claimed hourly 18 rates. 19 1. Hourly Rates 20 “To determine a reasonable hourly rate, the district court should consider: [the] 21 experience, reputation, and ability of the attorney; the outcome of the results of the 22 proceedings; the customary fees; and the novelty or the difficulty of the question 23 presented.” Hiken, 836 F.3d at 1044 (internal quotation and citation omitted). “The 24 reasonable rate should generally be guided by the rate prevailing in the community for 25 similar work performed by attorneys of comparable skill, experience, and reputation.” Id. 26 (internal quotation and citation omitted). For purposes of determining a reasonable 27 hourly rate the relevant community is “the forum in which the district court sits.” See 1 Fee applicants “have the burden of producing evidence that their requested fees 2 are in line with those prevailing in the community for similar services by lawyers of 3 reasonably comparable skill, experience and reputation.” See Vargas v. Howell, 949 4 F.3d 1188, 1199 (9th Cir. 2020) (internal quotation and citation omitted). “Affidavits of the 5 plaintiffs' attorney and other attorneys regarding prevailing fees in the community, and 6 rate determinations in other cases, particularly those setting a rate for the plaintiffs' 7 attorney, are satisfactory evidence of the prevailing market rate,” United Steelworkers of 8 Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990), and “[t]he defendant may 9 introduce rebuttal evidence in support of a lower hourly rate,” see Sorenson v. Mink, 239 10 F.3d 1140, 1145 (9th Cir. 2001). “[T]he proper scope of comparison . . . extends to all 11 attorneys in the relevant community engaged in equally complex [f]ederal litigation, no 12 matter the subject matter.” See Prison Legal News v. Schwarzenegger, 608 F.3d 446 , 13 455 (9th Cir. 2010). 14 Here, EcoRights seeks an award of fees for the work performed throughout the 15 case by attorneys Christopher Sproul (“Sproul”) and Stuart Wilcox (“Wilcox”), the former 16 being a “senior lawyer” at Environmental Advocates (see Declaration of Christopher 17 Sproul in Support of Motion for Attorneys’ Fees and Costs (hereinafter, “Sproul Decl.”) 18 ¶ 3) with “39 years of experience” (see Sproul Decl. ¶ 18), essentially all in the fields of 19 environmental law and government transparency law (see Sproul Decl. ¶ 7), and the 20 latter being “Of Counsel” at Environmental Advocates (see Wilcox Decl. ¶ 3) with “13 21 years of experience” (see Sproul Decl. ¶ 27), the last six of which working on “a variety of 22 actions challenging federal agency, municipality, state agency, and private actors’ actions 23 under FOIA and various environmental statutes” (see Wilcox Decl. ¶¶ 5, 7). 24 EcoRights claims hourly rates for Sproul in the amount of $995.00 for work 25 performed in 2023 and $1,065.00 for work performed in 2024 and 2025. (See Sproul 26 Reply Decl. Ex. 1). EcoRights claims hourly rates for Wilcox in the amount of $800.00 for 27 work performed in 2023 and $860.00 for work performed in 2024 and 2025; additionally, 1 EcoRights claims for Wilcox an hourly rate of $285.00 for work performed in 2023 and 2 $305.00 for work performed in 2024 and 2025. (See Wilcox Reply Decl. Ex. 1). 3 In support of said rates, Sproul cites, inter alia, three environmental law cases 4 from the Central District of California where his rates of $950.00 for work in 2022, 5 $995.00 for work in 2023, and $1,055.00 for work in 2024 were found reasonable, and 6 Wilcox’s rates of $675.00 for work in 2022, $775 for work in 2023, and $825 for work in 7 2024 were found reasonable. (See Sproul Decl. ¶ 19). To the extent some of those 8 rates were less than those requested here, Sproul explains that rates in the San 9 Francisco Bay Area are higher than those in Los Angeles (see Sproul Decl. ¶ 19) and 10 that inflation has driven up attorneys’ billable rates over time (see Sproul Decl. ¶ 20) 11 (citing U.S. Bureau of Labor Statistics). 12 The Court finds such showing constitutes satisfactory evidence of the prevailing 13 rates in the relevant market for counsel of both attorneys’ experience for the years in 14 question in the field of environmental law. 15 Defendants, in an effort to rebut EcoRights’ evidence, cite two FOIA cases, neither 16 in the field of environmental law, and awarding, respectively, $700.00 per hour for work 17 performed by a partner of unspecified years of experience in the Northern District of 18 California in 2018 and 2019 and $350.00 per hour for work performed by an attorney of 19 unspecified experience in the Central District of California in 2018, 2019, and 2020. In 20 the instant case, by contrast, the FOIA action constitutes a component of the field in 21 which Sproul and Wilcox specialize, namely environmental law. Moreover, the $700.00 22 hourly rate awarded in the first of the above two referenced cases is, after adjusting for 23 inflation, commensurate with an hourly rate of about $951.52 in 2025 (see Wilcox Reply 24 Decl. ¶ 9), and the $350.00 hourly rate found reasonable in the second of those two 25 cases was the attorney’s requested usual rate, see Schoenberg v. F.B.I., No. 18-cv26 01738, 2020 WL 4937813 , at *16 (C.D. Cal. May 8, 2020). 27 Defendants also contend the Court should reduce the above-referenced hourly 1 (See Opp. at 21:28). Defendants do not, however, cite to any case, nor could the Court 2 locate one, wherein an attorney was required to adjust his/her rates based on the 3 complexity of the particular task performed. Indeed, as the Ninth Circuit has observed, 4 “[p]rivate practitioners do not generally charge varying rates for the different lawyerly 5 tasks they undertake on a given case.” See Davis v. City and Cnty. of San Francisco, — 6 — 976 F.2d 1536 , 1548 (9th Cir. 1992). 7 Accordingly, the Court finds the rates sought by Sproul and Wilcox for all work 8 performed are reasonable. 9 2. Hours Expended 10 “The party seeking fees bears the burden of documenting the hours expended in 11 the litigation and must submit evidence supporting those hours.” Welch v. Metropolitan 12 Life Ins. Co., 480 F.3d 942, 945-46 (9th Cir. 2007). Counsel is not “required to record in 13 great detail how each minute . . . was expended” but at least “should identify the general 14 subject matter of [the] time expenditures,” see Hensley v. Eckerhart, 461 U.S. 424 , 437 15 n.12 (1983), and “[w]here the documentation of hours is inadequate, the district court 16 may reduce the award accordingly,” id. at 433 . 17 “The party opposing the fee application has a burden of rebuttal that requires 18 submission of evidence to the district court challenging the accuracy and reasonableness 19 of the hours charged or the facts asserted by the prevailing party in its submitted 20 affidavits,” Gates v. Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992), and “must 21 specifically identify defects or deficiencies in the hours requested.” Cotton v. City of 22 Eureka, Cal., 889 F. Supp. 2d 1154, 1176 (N.D. Cal. 2012) (holding “[c]onclusory and 23 unsubstantiated objections are insufficient to warrant a reduction in fees”). Even where 24 the opposing party fails to do so, however, the Court may not “accept[ ] uncritically [the 25 moving party’s] representations concerning the time expended.” See Sealy, Inc. v. Easy 26 Living, Inc., 743 F.2d 1378, 1385 (9th Cir. 1984). 27 Here, defendants, without identifying any particular billing entries they assert are 1 fees and costs relating to (1) “the preparation, filing, and service of a straightforward 2 FOIA complaint” (see Opp. at 21:9-10), (2) “clerical tasks like preparing documents for 3 service, filing proofs of service, and checking status of service” (see Opp. at 21:21-22), 4 (3) “routine litigation tasks such as reviewing and filing form stipulations and preparing 5 simple joint case management statements” (see Opp. at 21:25-27), (4) “document 6 review” (see Opp. at 22:5), (5) “format negotiations” (see Opp. at 23:18), (6) “fees-on7 fees” (see Opp. at 24:2-24), (7) “redundant billing” (see Opp at 23:25-27) and 8 (8) prosecuting claims against NMFS (see, e.g., Opp. at 23:17-18). The Court addresses 9 each category in turn. 10 a. Preparation and Service of Complaint 11 EcoRights billed $7,714.00 for 9.9 hours expended in the preparation of the 12 complaint.12 Defendants contend such time is “excessive, especially, for experienced 13 counsel who routinely file very similar, formulaic FOIA complaints.” (See Opp. at 21:1014 12). Courts, however, have “awarded around ten hours for the preparation of most 15 vanilla FOIA complaints.” See Colorado Wild Public Lands v. U.S. Forest Serv., No. 2116 cv-2802 (CRC), 2025 WL 2406340 , at *6 (D.D.C. Mar. 21, 2025). Although, as 17 defendants point out, EcoRights, in drafting the Complaint, used sections of complaints it 18 had filed in other actions, the usefulness of prior pleadings, as EcoRights notes, “does 19 not excuse [its] counsel from ensuring that they accurately present the facts and make 20 only meritorious legal arguments.” (See Reply at 12:18-20). 21 Accordingly, fees relating to this category of services will not be reduced. 22 b. Clerical Tasks 23 Defendants challenge $1228.00 billed for 3.3 hours expended on what defendants 24 characterize as “clerical tasks.” (See Opp. at 21:21-22). Clerical tasks should be 25 “subsumed in firm overhead rather than billed at paralegal rates.” See Nadarajah v. — 26 — — 27 — 12 The Court addresses the hours billed serving the Complaint in a subsequent 1 Holder, 569 F.3d 906, 921 (9th Cir. 2009). “[T]asks such as filing documents on ECF, 2 revising and preparing documents referred to in time records as ‘filings,’ email exchanges 3 between attorneys, and organizing certain files in anticipation of preparing a motion are 4 not clerical tasks.” Am. C.L. Union Immigrants’ Right Projects v. U.S. Immigr. & Customs 5 Enf’t, No. 16-cv-06066-JSC, 2018 WL 488997 , at *5 (N.D. Cal. Jan. 19, 2018). On the 6 other hand, tasks such as “printing documents, downloading documents, collating files, 7 calendaring items, booking travel, communications with the Court, and reviewing 8 ministerial court notices are clerical in nature.” See Andrade v. Gaurino, No. 16-00347 9 JAO-WRP, 2019 WL 12520114 , at *6 (D. Haw. Sept. 17, 2019). 10 Although the Court does not find the tasks identified by defendants qualify as 11 “clerical,” the Court has identified 2.6 other hours that do so qualify. In particular, Wilcox 12 spent 0.1 hours billed at $800.00 per hour “calendaring dates,” 1.8 hours billed at 13 $860.00 on clerical tasks such as “revis[ing] calendar dates,” and 0.7 hours billed at 14 $305.00 per hour “resolv[ing]” a “file formatting issue.” (See Wilcox Reply Decl. Ex 1 at 2, 15 4-5, 9-10, 12, 16-17, 20)13 16 Accordingly, the above-listed fees, totaling $1,841.50, will not be awarded. 17 c. Reviewing and Filing Stipulations and Preparing Case Management Statements — 18 — Defendants contend the $11,519.50 billed for 13.3 hours expended in performing — 19 — tasks relating to “case management issues, . . . such as reviewing and filing form — 20 — stipulations and preparing simple joint case management statements” are excessive. — 21 — (See Opp. at 21:25-28). In challenging the number of hours expended in this category of — 22 — services, however, defendants have not pointed to any particular entries, nor has the — 23 — Court identified any such hours other than the above-referenced 2.6 hours that have — 24 — already been deducted. — 25 — — 26 — 13 The above-referenced hours were expended on 10/19/23, 1/20/24, 1/26/24, — 27 — 4/17/24, 5/9/24, 5/13/24, 5/14/24, 7/5/24, 7/24/24, 7/26/24, 8/8/24, 11/9/24, 1/10/25, and 1 Accordingly, fees relating to this category of services will not be further reduced. 2 d. Document Review 3 Defendants contend the Court should reduce the $9,288.00 billed for 10.8 hours 4 expended in document review, for the reason that, according to defendants: (1) fees for 5 document review are “unrecoverable under FOIA,” (2) plaintiff’s attorneys “did a 6 substandard job in the document review,” and (3) utilizing an attorney with “13 years of 7 legal experience . . . for a simple review” is unreasonable. (See Opp. at 22:5-23:8). As 8 explained below, the Court is not persuaded. 9 First, fees incurred performing limited review of documents to determine 10 whether “production ends the litigation or if there are still compliance issues that 11 necessitate further litigation” are recoverable. See Am. C.L. Union Immigrants’ Right 12 Projects v. U.S. Immigr. & Customs Enf’t, No. 16-cv-06066-JSC, 2018 WL 488997 , at *4 13 (N.D. Cal. Jan. 19, 2018); see also Elec. Priv. Info. Ctr. v. U.S. Dep't of Homeland Sec., — 14 — 811 F. Supp. 2d 216, 240 (D.D.C. 2011) (awarding fees for review of disclosure; noting “it 15 would seem critical to the prosecution of a FOIA lawsuit for a plaintiff to review an 16 agency’s disclosure for sufficiency and proper withholding”). 17 Here, Wilcox “quickly scann[ed] the records for places where there were 18 redactions and/or references on the face of the records themselves to other records that 19 appeared to have not been produced” and “did not read the records for content.” (See 20 Wilcox Decl. ¶ 20). In other words, “[t]his is not a case where a plaintiff filed a complaint 21 for documents under FOIA, the agency released the documents, and the plaintiff then 22 requested attorney's fees for its time reviewing the released documents.” See Elec. Priv. 23 Info. Ctr. v. FBI, 80 F. Supp. 3d 149, 160 (D.D.C. 2015). 24 Second, the Court finds unpersuasive defendants’ contention that the award of 25 fees should be reduced because counsel assertedly did a “substandard job” in reviewing 26 the documents produced. In assessing whether the production was satisfactory, Wilcox 27 billed 10.8 hours for reviewing over 4,700 of pages of documents to assess whether the 1 the 91 documents EcoRights then identified as “missing” were already included in 2 defendants’ productions, EcoRights points out that its review resulted in the production of 3 “over 1,200 additional pages” and the correction of “problems with many other records” 4 (see Reply at 14:11-13; see also Wilcox Decl. ¶ 23) and that its decision to limit the 5 number of hours expended was made to “avoid incur[rence] of excessive fees” and 6 “allowed [d]efendants, who were more familiar with the records, to determine whether . . . 7 records were missing” (see Reply at 14:17-19). The Court finds counsel for EcoRights 8 suitably straddled the line between efficiency and accuracy. 9 Further, to the extent defendants contend a more junior attorney should have been 10 assigned to such tasks, the Ninth Circuit has held that courts should “not attempt to 11 impose [their] own judgment regarding the best way to operate a law firm, nor to 12 determine if different staffing decisions might have led to different fee requests.” See 13 Moreno v. City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008). 14 Accordingly, fees relating to this category of service will not be reduced. 15 e. Formatting Negotiations 16 Defendants challenge the “more than 15 hours” expended in formatting 17 negotiations14 and argue “the requested fees for negotiations regarding the format of 18 USACE’s release are grossly disproportionate to the results [EcoRights] obtained” 19 because EcoRights “already had all the substantive information, and it was simply 20 seeking additional native metadata.” (See Opp. at 23:15-21). The requested additional 21 information was sought in EcoRights’ initial requests; to the extent it was “readily 22 reproducible by the agency in that form or format,” see 5 U.S.C. § 552 (a)(3)(B), it should 23 have been timely provided in such format, and EcoRights is entitled to fees for the time it 24 was required to expend negotiating such production. 25 Accordingly, fees relating to this category of service will not be reduced. — 26 — — 27 — 14 Defendants do not identify the particular hours nor do they ascribe a particular 1 f. Fees on Fees 2 Plaintiffs seek fees in the amount of $116,612.20 for hours expended in fee 3 litigation, i.e. those spent participating in negotiations, attending mediation, and 4 prosecuting the instant motion. 5 Under FOIA, plaintiffs who substantially prevail may recover, as part of their 6 reasonable fees and costs, fees incurred pursuing an award of fees. See Assembly of 7 State of Cal v. U.S. Dep’t of Commerce, No. Civ. S–91–990WBS/JFM, 1993 WL 188328 , 8 at *16-17 (E.D. Cal. May 28, 1993) (“review[ing] . . . the language and purpose of the fees 9 provision under FOIA” and holding “an award for reasonable fees on fees is 10 appropriate”). 11 Defendants contend EcoRights’ request for fees on fees is excessive in that such 12 fees exceed by a considerable amount the fees incurred during the merits portion of the 13 litigation. Where, as here, however, a case settles early in the litigation and/or before any 14 motion practice, “the proportion of time spent on recovering attorneys’ fees relative to the 15 time spent on the merits is likely to be larger than it would be if the parties engaged in 16 lengthy litigation.” See Human Rts. Def. Ctr. v. Cnty. of Napa, No. 20-cv-01296-JCS, — 17 — 2021 WL 1176640 , at *14 (N.D. Cal. Mar 28, 2021). 18 Further, in challenging the amount of fees on fees sought, defendants have not 19 pointed to any particular entries as being an excessive expenditure of time, and the 20 Court, having reviewed the billing records, has not, with one exception, identified any 21 such entries, the one exception being 0.7 hours billed at an hourly rate of $860.00, which 22 results in a fee of $602.00 for the time Wilcox spent waiting for a case management 23 conference to be called. (See Wilcox Reply Decl. Ex. 1 at 15). The case management 24 calendar for that date was conducted via Zoom, and the time counsel spent waiting to be 25 called could have been spent productively working on another matter. Indeed, one of the 26 reasons the Court holds case management conferences remotely is to reduce the costs 27 associated with counsel’s traveling to the courthouse and having no other option than to 1 Accordingly, $602.00 of the amount claimed for fees on fees will not be awarded, 2 and the Court will address any further reductions in a later section herein. 3 g. Redundant Billing 4 Defendants, again without pointing to any specific time entries, contend there are 5 “multiple instances of redundant billing” by Sproul and Wilcox. Having reviewed the 6 billing records, the Court has identified a single instance of what appears to be duplicate 7 billing, specifically two entries on May 9, 2024, each of one half-hour duration, each in the 8 amount of $532.50, and both described by Sproul as “[c]all with Stuart Wilcox to discuss 9 revisions to conferral letter and contents of joint case management statement due 10 tomorrow.” (See Sproul Reply Decl. Ex. 1 at 3). 11 Although the billing records also include separate billing entries by Sproul and 12 Wilcox for other telephone conferences in which they mutually engaged and for reading 13 the same letter or email, it is not unexpected that the two attorneys on the case would 14 need to converse with each other periodically about the case, see Rodriguez v. Barrita, 15 Inc., 53 F. Supp. 3d 1268, 1281-82 (N.D. Cal. 2014) (awarding fees to each attorney for 16 “time spent conferencing with one another”), nor is it unexpected that each of the two 17 attorneys on the case would review emails from opposing counsel. 18 Accordingly, the above-referenced duplicate fee in the amount of $532.50 will not 19 be awarded, and no other deductions will be made on the grounds of redundancy. 20 h. Time Spent on Issues Solely Relating to NMFS 21 Because the Court has found EcoRights failed to exhaust its administrative 22 remedies as to NMFS and that, in any event, EcoRights is not a prevailing party as to 23 said defendant, the Court will disallow fees and/or costs for services pertaining 24 exclusively to EcoRights’ claims against NMFS. See Lambert v. Ackerley, 180 F.3d 997 , 25 1012 (9th Cir. 1997) (holding “[p]arties are entitled to fees only for work related to issues 26 on which they prevail”). 27 Here, with the exception of 1.3 hours billed at an effective hourly rate of $324.62 1 and dedicated to effectuating service on NMFS (see Wilcox Reply Decl. Ex. 1 at 2-3),15 2 the work performed on the merits portion of the case appears to have been directed at 3 EcoRights’ claims against both defendants jointly, such claims being, essentially, related 4 and intertwined, see Thomas v. City of Tacoma, 410 F.3d 644, 649 (9th Cir. 2005) 5 (holding “district court should focus on whether the claims on which [p]laintiff did not 6 prevail involve a common core of facts or are based on related legal theories”) (internal 7 quotation and citation omitted) (emphasis in original) and “[t]o the extent the claims are 8 related, [EcoRights] should recover reasonable fees for prosecuting those claims,” see id. 9 Next, as to “[f]ees for fee litigation,” time spent litigating entitlement to fees “should 10 be excluded to the extent that the applicant ultimately fails to prevail in such [fees] 11 litigation.” See Commissioner, I.N.S. v. Jean, 496 U.S. 154 , 163 n.10 (1990). As the 12 Supreme Court has explained, “[f]or example, if the Government's challenge to a 13 requested rate . . . resulted in the court's . . . reducing the award . . . from the requested 14 amount, then the applicant should not receive fees for the time spent defending the 15 higher rate.” See id. 16 Here, as to EcoRights’ initial brief in support of its motion for fees, the Court has 17 identified $41,366.00, representing 48.1 hours of work performed by Wilcox at a rate of 18 $860.00 per hour on tasks described as “[l]egal research for motion for attorney fees and 19 cost motion,” “[d]rafting motion for attorneys' fees and costs,” and other broadly described 20 tasks related to the preparation of said brief (see Wilcox Reply Decl. Ex. 1 at 13-14, 1721 21),16 as well as $1,709.00, representing 1.6 hours of work performed by Sproul at a rate 22 of $1,065.00 per hour on similarly vaguely described tasks relating to such preparation. — 23 — — 24 — — 25 — 15 The above-referenced hours were expended on 10/24/23, 11/7/23, 11/29/23, 12/5/23, 12/11/23, 12/14/23, and 12/29/23. — 26 — 16 The above-referenced hours were expended on 8/8/24, 8/20/24, 8/21/24, — 27 — 8/22/24, 8/23/24, 8/26/24, 9/19/24, 9/20/24, 9/23/24, 1/7/25, 1/9/25, 1/11/25, 1/13/25, 1 (See Sproul Reply Decl. Ex. 1 at 4, 6).17, 18 Because the Court cannot discern what 2 topics were being researched or which portions of the initial brief were being drafted, it 3 cannot determine what portion of these tasks was dedicated to work pertaining to the 4 recovery of fees from NMFS. 5 As approximately one fifth of that brief pertains to NMFS-specific issues such as 6 eligibility, i.e., issues that are unrelated to EcoRights’ successful arguments, the Court 7 will disallow one fifth of the above-referenced 49.7 hours. See, e.g., Kopp v. United 8 States Secret Serv., No. 18-cv-04913-JCS, 2019 WL 2327933 , at *7 (N.D. Cal. May 31, 9 2019) (finding reduction of fee award by one third constituted “reasonable approximation 10 of the extent to which [plaintiff] fail[ed] to prevail on his [fees] motion”); Wal-Mart Stores, 11 Inc. v. City of Turlock, 483 F. Supp. 2d 1023, 1042 (E.D. Cal. 2007) (awarding fees-on12 fees in amount approximating percentage of time dedicated to successful argument). 13 Such disallowance, constituting a reduction of Wilcox’s time by 9.62 hours and a 14 reduction of Sproul’s time by 0.32 hours, resulting in deductions of $8,273.20 and 15 $340.80, respectively, comes to a combined reduction of $8,614.00. 16 As to EcoRights’ reply brief filed in support of its motion for fees, the Court has 17 identified $26,574, representing 30.9 hours of work performed by Wilcox between 18 February 20, 2025, and March 11, 2025, at a rate of $860.00 per hour on tasks described 19 as “[l]egal research for fee motion reply brief,” “drafting fee motion reply,” and other 20 similarly described tasks related to the preparation of the reply brief. (See Wilcox Reply 21 Decl. Ex. 1 at 22-24). The Court also has identified $319.50, representing 0.3 hours of 22 work performed by Sproul on February 20, 2025, at a rate of $1,065.00 per hour on 23 similarly vaguely described tasks relating to the preparation of the reply brief. (See — 24 — 17 The above-referenced hours were expended on 8/26/24, 1/9/25, 1/14/25, and — 25 — 1/17/25. — 26 — 18 The above hours do not include time spent preparing the declarations filed in support of the motion which attest predominately to the history of the case, the — 27 — experience of counsel, and the prevailing market rates in the community, all of which 1 Sproul Reply Decl. Ex. 1).19 Because the Court cannot discern what topics were being 2 researched or which portions of the reply brief were being drafted, it cannot determine 3 what portion of these tasks was dedicated to work pertaining to recovery of fees from 4 NMFS. 5 As approximately one third of the reply brief pertains to NMFS-specific issues such 6 as exhaustion of administrative remedies and prevailing party status, i.e., issues that are 7 unrelated to EcoRights’ successful arguments, the Court will disallow a third of the 8 above-referenced 31.2 hours. Such disallowance, constituting a reduction of Wilcox’s 9 time by 10.3 hours and a reduction of Sproul’s time by 0.1 hours, resulting in deductions 10 of $8,858 and $106.50, respectively, comes to a combined a reduction of $8,964.50. 11 Accordingly, the above-listed fees, which total $18,000.50, will not be awarded. 12 E. Costs 13 Defendants contend the Court should “proportionally reduce [EcoRights’] cost 14 demand of $1,122.62” to the extent “it is not eligible for or entitled to fees” from NMFS by 15 disallowing the “$262.74 in costs of service on NMFS” and a portion of the “$337.10 in 16 legal research costs.” (See Opp. at 25:2-10). The Court, for the reasons explained 17 above, will not award the $262.74 in costs incurred in serving NMFS and will reduce by 18 one fifth, i.e., $67.42, the costs incurred performing legal research in connection with 19 EcoRights’ initial brief in support of its fees motion. (See Sproul Decl. Ex. 10 at 2).20 20 Accordingly, costs in the amount of $330.16 will not be awarded, leaving a costs 21 balance of $792.46. — 22 — — 23 — — 24 — — 25 — 19 The above hours do not include time spent preparing the declarations filed in support of the reply which attest predominately to the history of the case and the — 26 — prevailing market rates in the community, all of which would have been necessary were EcoRights only seeking fees against USACE. — 27 — 1 CONCLUSION 2 For the reasons stated above, EcoRights’ Motion for Attorneys’ Fees and Costs is 3 || hereby GRANTED IN PART and DENIED IN PART as follows: 4 1. As against defendant USACE, the motion is hereby GRANTED IN PART, and 5 EcoRights is awarded attorneys’ fees in the amount of $145,863.70 and costs 6 in the amount of $792.46 for a total award of $146,656.16. 7 2. As against defendant NMFS, the motion is hereby DENIED. — 8 — 9 IT IS SO ORDERED. — 10 — 11 Dated: October 29, 2025 : INE M. CHESNEY 12 United States District Judge — — 13 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —