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NW Fishletter #328, February 20, 2014

[6] Enviros Bill Feds Over Hydro BiOp Litigation

Attorneys for Earthjustice, which has represented environmental and fishing groups who have successfully challenged NOAA Fisheries in federal court several times over the government's salmon plans, sent the feds another bill last week for services rendered.

After coming out on top in the latest round of litigation, when the 2010 supplemental BiOp was remanded in part in a 2011 decision, the EJ attorneys said an award of fees under the ESA is appropriate because their challenge to the 2008/2010 FCRPS BiOp "prevented Federal Defendants from implementing that BiOp to the detriment of listed salmon and steelhead."

The bill comes to nearly $536,000 for attorneys' fees since 2010. However, they said the government doesn't have to settle up until the litigation is completed. The Feb. 14 filing said plaintiffs were still deciding whether to challenge the latest supplemental hydro BiOp released in January.

The filing pointed out that federal law allows reimbursement up to $125 per hour, but more in special situations. "This case called for distinctive knowledge and specialized skills in the area of federal environmental litigation above and beyond what is ordinarily available at the EAJA [Equal Access to Justice Act] market rates, and Earthjustice and [National Wildlife Federation's] local counsel possessed the knowledge and skills needed to prosecute this case. These skills are in short supply in the market at EAJA rates," said their filing. The EJ filing said the rates were similar to or even lower than rates charged by attorneys in the Portland area with similar experience and expertise.

Accordingly, they billed the feds for lead attorney Todd True's time of 670 hours, at $500 per hour, EJ attorney Steve Mashuda's nearly 400 hours at $400 per hour, and local NWF counsel Dan Rolph's 37 hours at $475 per hour. Adding another $30,000 in reimbursable costs brought the total to $535, 593.62, for the period of time between June 2010 and the present.

In June 2010, EJ presented the court with a bill for $765,465.05 for its services between 2008 and 2010, but deferred a settlement at that time.

In 2008, the feds wrote a check for $940,000 to the environmental attorneys for their time during litigation over the BiOp from 2004 to 2008. -B. R.

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