I. Introduction

Plaintiffs, the Center for Biological Diversity (“the Center”) and the Friends of Fawnskin (“FOF”) (collectively “plaintiffs”) filed this suit under the Clean Water Act (“CWA”) §§ 301 and 304, 33 U.S.C. §§ 1311 & 1344, and the Endangered Species Act (“ESA”) § 9, 16 U.S.C. § 1538. The Center is a non-profit public interest organization that works to protect native species and their habitats through science, policy and environmental law. The FOF is a coalition of local residents of and visitors to Fawnskin (located on the North Shore of Big Bear Lake) that aims to preserve the town's character, environment and wildlife.

Plaintiffs initially were represented in this case by attorneys from the Center, along with Environmental Associates (Suzanne Bevash) and the Law Offices of Everett L. Delano III. In June 2005, Robins, Kaplan, Miller & Ciresi L.L.P. (RKMC) substituted into the case, replacing Bevash and Delano; the Center remained as co-counsel.

The Defendants are the real estate partnership and principals developing Marina Point (“the Project”), a proposed development located on the North Shore of Big Bear Lake directly on Grout Bay, which is one of the few remaining undisturbed bald eagle habitats at Big Bear Lake. The proposed Project consists of 133 condominium units, a swimming pool, two tennis courts, a health spa, restaurant, management offices, picnic areas, walking trails and a marina expected to house 175 boats. Defendants initially were represented by Foley & Lardner, and later by Latham & Watkins.

On May 20, 2004, Judge Robert Timlin issued a preliminary injunction, staying further work on the Project on the ground that a violation of the ESA was likely to occur in the future. This case was transferred to this Court in February 2005. At trial, the Court received the direct testimony of the parties' witnesses through trial declarations and presided over cross-examination between August 23, 2005 and August 30, 2005. On December 12, 2005, after the parties filed their closing briefs, the Court heard the parties' closing arguments and took the matter under submission.

On June 12, 2006, the Court issued its Opinion and Order Following Court Trial and on August 21, 2006, awarded Judgment in favor of plaintiffs. This Court found that construction on the project site had caused a “take” of the bald eagle and that further development would ultimately render the site completely inhospitable to the eagles in violation of the ESA. (See June 12, 2006 Opinion and Order at 7:4-18.)

This Court further found defendants to be in continuing violation of § 301 of the CWA and that there is a significant likelihood of future violations. (See June 12, 2006 Opinion and Order at 12:1-13.) The Court ordered defendants to pay to the United States Department of the Treasury $ 1,312,000.00 in statutory penalties and imposed a permanent injunction barring further development of the Project without the prior authorization of the Court. This Court also ordered defendants to undertake immediate remedial action as may be ordered by the U.S. Army Corps of Engineers. (See June 12, 2006 Opinion and Order at 12:14-19.)

*2 Following the entry of Judgment, plaintiffs moved for an award of attorneys' fees and costs pursuant to Fed. Rules Civ. Proc. 54(d) on the grounds that as prevailing parties they are entitled to costs pursuant to 28 U.S.C. § 1920, and an award of statutory costs of litigation, including reasonable attorneys' and expert witness fees, pursuant to the ESA, 16 U.S.C. 1540(g)(4), and the CWA, 33 U.S.C. § 1365(d).

Plaintiffs seek attorneys' fees in the amount of $1,626,961.40 and litigation costs and expenses of $153,864.22 as follows: RKMC seeks $654,914.80 in fees and $50,109.14 in costs; the Center seeks $450,025.00 in fees and $50,300.44 in costs; Bevash seeks $261,201.60 in fees and $2,276.00 in costs; and Delano seeks $260,820.00 in fees and $51,177.74 in costs.

Defendants ask this Court to stay plaintiffs' motion until the resolution of their appeal to the Ninth Circuit, arguing that if they succeed on appeal, plaintiffs will not be “prevailing parties” and will not be entitled to any award of fees and costs, thus rendering this motion moot. The Court finds no merit to this argument. If plaintiffs prevail on appeal, staying this fee motion would deprive the Ninth Circuit of the opportunity to review plaintiffs' award concurrently with its consideration of the appeal and only result in a second, separate appeal by defendants. Accordingly, this Court denies defendants' request for a stay.[1]

Defendants also oppose plaintiffs' fee motion on the grounds that the fees sought by plaintiffs are so exorbitant and unreasonable that plaintiffs' request “shocks the conscience”, and challenge the amount of fees requested, the amount of costs submitted and the rates sought by plaintiffs' attorney Suzanne Bevash.

II. Discussion

A. Legal Standard

Under the Endangered Species Act, a district court may award costs of litigation, including reasonable attorney and expert witness fees, to any party whenever the court determines such award is appropriate. 16 U.S.C. § 1540(g)(4). Similarly, under Section 505 of the Clean Water Act, 33 U.S.C. § 1365(d), the Court has discretion to award costs of litigation, including reasonable attorney and expert witness fees, to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate.

The purpose of private attorney general fee-shifting provisions like those contained in the ESA and CWA is to encourage competent, skilled attorneys to take on difficult cases and in doing so, to enforce these Acts. To accomplish that purpose, attorneys who win such cases should be paid for all of their reasonable efforts at the same rates as their counterparts in the commercial market. See Hensley v. Eckerhart, 461 U.S. 424 (1983); Blum v. Stenson, 465 U.S. 886 (1984).

The threshold determination is whether the party seeking attorneys' fees is a “prevailing party.” Hensley, 461 U.S. at 433-37.[2] In order to be a prevailing party, the party seeking fees need only have succeeded on “any significant issue in litigation which achieves some of the benefit” sought by them. Id.; Texas State Teachers Ass'n v. Garland Independent School Dist., 489 U.S. 782, 791 (1989); Ruckelshaus v. Sierra Club, 463 U.S. 680, 688 (1983). Courts have interpreted the “when appropriate” standard to permit awards to prevailing plaintiffs. Marbled Murrelet v. Babbitt, 182 F.3d 1091, 1095 (9th Cir. 1999).

*3 The appropriateness of a fee award is left to the discretion of the trial court. Armstrong v. Asarco, Inc., 138 F.3d 382, 388 (8th Cir. 1998); Sierra Club v. Hankinson, 351 F.3d 1358, 1361 (11th Cir. 2003). Once a party is found to be the prevailing party, a district court should determine the reasonableness of the fees sought based upon the reasonable hours multiplied by a reasonable rate (“the lodestar”). Hensley, 461 U.S. at 433-34. “The most critical factor is the degree of success obtained.” Id. at 436. “Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee.” Id. at 435. A strong presumption exists that the lodestar represents a reasonable free award. Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th Cir. 1987).

In this case, plaintiffs completely prevailed, obtaining not only injunctive relief protecting endangered bald eagle habitat and Big Bear Lake and its adjoining shoreline, but the imposition of federal fines on defendants. Because of the excellent result plaintiffs achieved, the Court, exercising its discretion, will award plaintiffs' appropriate fees and costs. Plaintiffs' fee request is based on the lodestar calculation.[3]Counsels' requested hourly rates and hours billed are discussed below.

B. Plaintiffs' Fee Request Does Not “Shock the Conscience”

Plaintiffs' attorneys are entitled to be compensated “for every item of service which, at the time rendered, would have been undertaken by a reasonable and prudent lawyer to advance or protect his client's interest...” Moore v. Jas. H. Matthews & Co., 682, F.2d 830, 839 (9th Cir. 1982). Reasonableness is based on the standards applied by the private bar in performing legal tasks for fee-paying clients. Davis v. City and County of San Francisco, 976 F.2d 1536 (9th Cir. 1992). The relevant issues are whether plaintiffs' counsel exercised sound legal judgment under the circumstances and whether the success that was achieved warrants the full lodestar. See, City of Riverside v. Rivera, 477 U.S. 561, 572 (1986); Moore v. Jas. H. Matthews, 682 F.2d at 839.

The hours claimed by plaintiffs' attorneys are described fully in their declarations and supporting contemporaneous time records. Counsels' hours are presumptively reasonable. Perkins v. Mobile Housing Bd., 847 F.2d 735, 738 (11th Cir. 1988). To deny their request, “it must appear that the time claimed is obviously and convincingly excessive under the circumstances.” Id.

As discussed further below, in light of plaintiffs' success on both claims and the reasonableness of the rates requested, plaintiffs' fee request does not shock the conscience. Moreover, defendants' counsel acknowledged at oral argument that defendants were charged legal fees in this same matter in excess of those requested by plaintiffs, which further demonstrates the reasonableness of plaintiffs' request.

C. Billing Rates

Reasonable hourly rates are based on “the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel.” Blum v. Stevenson, 465 U.S. at 895. Private firm rates may be awarded to public interest organizations when appropriate. Guam Soc'y of Obstetricians and Gynecologists v. Ada, 100 F.3d 691, 705 (9th Cir. 1996). Fee awards also may include compensation for the services of paralegals and law clerks. Missouri v. Jenkins, 491 U.S. 274, 286-287 (1989).

*4 The relevant community is generally where the district court sits. Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997). It also can be where some of the moving party's attorneys practice. Davis v. Mason County, 927 F.2d 1473, 1488 (9th Cir. 1991). Current billing rates should be applied to compensate for delay in payment. Chemical Bank v. City of Seattle, 19 F.3d 1291, 1305 (9th Cir. 1994); Gates v. Deukmejian, 987 F.2d 1392, 1406-07 (9th Cir. 1993).

The prevailing party has the burden of justifying the reasonableness of the requested rates. Blum, 465 U.S. at 895. The fee applicant should present evidence that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation. Id. at 896 n.11.

Other than for plaintiffs' counsel, Suzanne Bevash, defendants have not challenged the rates requested by plaintiffs' counsel. Defendants urge this Court to award Ms. Bevash's fees at their historical rate, rather than at current rates.

The present case was litigated and tried in the Central District of California and most of plaintiffs' counsel are located in the Central District. Accordingly, this Court will apply the current rates prevailing in the Central District, and, particularly, in Los Angeles County. Plaintiffs have requested the following hourly rates:

Robins, Kaplan, Miller & Ciresi, L.L.P.: $460.00 per hour for partner, Bernice Conn; $390.00 per hour for partner, Michael Geibelson; $590.00 per hour for partner, Roman M. Silberfeld; $220.00 per hour for associate Hassan Allen; and $140.00 per hour for paralegal Leslie Lewis.

Center for Biological Diversity: $360.00 per hour for attorney Brendan Cummings; $350.00 per hour for attorney Adam Keats; $300.00 per hour for attorney Kassia Siegel; and $ 100 per hour for law clerk Jonathan Evans.

Environmental Associates: $440.00 per hour for attorney Suzanne Bevash.

Law Offices of Everett Delano: $460.00 per hour for attorney Everett DeLano; $390.00 per hour for attorney M. Dare Delano.

In addition to the declarations of counsel in this case which fully set forth the background and qualifications of the attorneys for whose work fees are requested, plaintiffs submitted declarations from other local attorneys establishing that the requested rates are well within the current prevailing market rates in Los Angeles for private attorneys and paralegals with similar experience performing comparable work. Plaintiffs also submitted excerpts of a June 2006 billing rate study of the Los Angeles legal market prepared by PricewaterhouseCoopers LLP which further confirms the reasonableness of the hourly rates requested for the work performed by plaintiffs' counsel. As noted above, with the exception of Suzanne Bevash, defendants do not challenge any of the requested rates.

This Court finds that the rates requested by plaintiffs' counsel, including their public interest attorneys, fall well within the reasonable rates charged by Los Angeles firms for comparable work. Guam Soc'y of Obstetricians and Gynecologists, 100 F.3d at 696 (“declarations of the ‘prevailing market rates in the relevant community ... [are] sufficient to establish the appropriate [billing] rates for lodestar purposes.’ ” (quoting Davis v. City and County of San Francisco, supra, at 1547). However, after consideration, this Court adopts defendants' position with regard to the rates requested by former counsel, Suzanne Bevash, and reduces Ms. Bevash's fees by $13,829.00 to reflect the actual billing rates in effect at the time services were rendered.

D. The Hours Billed

*5 Plaintiffs' counsel have submitted detailed billing records documenting the hours and work performed in this case along with their declarations further explaining the nature and purpose of their work. (See, Declarations of Bernice Conn, Michael A. Geibelson, Roman M. Silberfeld, Kassia Siegel, Adam Keats, Brendan Cummings, Everett Delano and Suzanne Bevash). Defendants challenge approximately $325,000.00 of the fees sought by plaintiffs. Defendants have the burden of submitting evidence to rebut plaintiffs' request. Deukmejian, 987 F.2d at 1397-98.

1. Work Relating to the RICO and State Cases

Defendants challenge $26,384.00 of requested fees which they claim is for services performed by plaintiffs' counsel in other actions involving the same parties. (See Exhibit “A” to defendants' opposition.)

In November 2004, defendants filed a RICO action against certain U.S. Forest Service biologists and a member of FOF accusing them of conspiring to defraud the defendants of government services and scheming to block the issuance of construction permits for the Project (See U. S. District Court, Central District of California, Western Division, Case No. ECV04-1387-R). In March 2006, this Court granted the U.S. Government's and FOF member's motions to dismiss, and, in August 2005, sanctioned defendants' counsel and awarded fees and costs to the FOF's member's counsel in that case.[4]

The evidence and credibility of witness testimony offered in this case was challenged by defendants in their related RICO case. The defendants in the RICO action were witnesses in this case; they were deposed, testified at trial and their records were introduced at trial.[5]Defendants' unclean hands defense in this case was based on the claims made in the related RICO case. The two cases were inextricably entwined. This Court concludes that the few challenged time entries relating to work performed by plaintiffs' counsel in this case which involved the related RICO case are justified.

In 2004, plaintiffs also filed a related state court action involving the Project (Center for Biological Diversity, et al. v. County of San Bernardino, et al., San Bernardino County Superior Court Case No. SCVSS 111660). Defendants challenge certain time entries related to preparation of the TRO application in this case, claiming that the work duplicates work performed on a TRO application in the state case. But defendants have not presented any evidence supporting their claim. Plaintiffs succeeded in obtaining a TRO and preliminary injunction from Judge Timlin in this case. They should not be denied fees for this work because a similar TRO application may have been submitted, and denied, in the state case. Defendants also challenge additional time entries relating to work which they claim are for trial work performed in the state court case. But, defendants have not submitted any evidence supporting these claims either and this Court takes judicial notice of the fact that the state court case was dismissed on summary judgment, not at trial.

2. Plaintiffs' Substitution of Trial Counsel

*6 Defendants seek to disallow $138,410.00[6] of Robins, Kaplan, Miller & Ciresi's (RKMC) fees, claiming these fees represent duplicative work. RKMC substituted into this case in June 2005; trial was set for July 19, 2005. On June 24, 2005, this Court issued its Minute Order continuing the trial to August 23, 2005 and ordered the parties to submit their direct cases through written witness statements.

Defendants challenge RKMC's pre-trial and trial preparation work. The challenged time entries primarily concern document review, research, conferences with co-counsel and experts, preparation of witness declarations, and exhibit selection and preparation. (See Exhibit “B” to defendants' opposition). Defendants argue generally that the identified entries represent work which would not otherwise have been required if plaintiffs' counsel had not been replaced on the eve of trial.

A review of the challenged entries, however, reveals that the work at issue included the preparation of new expert reports, conferences with experts, the taking of new (or new sessions) of witness and expert depositions (including the defendants' depositions) the preparation of 11 lay witness trial declarations, 3 expert trial declarations and deposition designations for 8 additional witnesses, as well as motions in limine, revised exhibit lists, correspondence and meetings with defense counsel regarding trial submissions and the development of trial strategy. None of this work was performed by prior counsel, nor is there any reason to conclude that it would have taken prior counsel less time to perform this work.

In exercising its “billing judgment” to avoid seeking fees for duplicative or unnecessary work, RKMC voluntarily reduced its total fees incurred of $689,384.00 by 5%, or $34,469.00, leaving a total of $654,914.80. After reviewing the challenged entries, this Court finds that RKMC's original fee request should have been reduced by 10%, rather than 5%, for a total deduction of $68,938.40, thereby making RKMC's fee award $620,445.60.

3. Multiple Attorneys at Depositions

Defendants seek to disallow $42,692.50 in fees which they claim plaintiffs unnecessarily incurred because two of their attorneys attended “nearly every deposition”. But a review of the billing entries establishes that only one of plaintiffs' counsel appeared at fourteen of the twenty-four depositions taken in this case. And, at five other depositions where two of plaintiffs' counsel attended, defendants also were represented by two attorneys. (See Supplemental Conn Decl. at ¶ 3).

There is nothing inherently unreasonable in having two of plaintiffs' attorneys attend certain depositions, particularly when defendants also have seen fit to have two attorneys attending the deposition. In fact, this Court notes that, at times, defendants sent two attorneys to depositions where only one of plaintiffs' counsel was present (Rosenbaum, Tabatabai 1, Zimmerman). Defendants have not submitted any evidence which would support the conclusion that having two attorneys appear at these specific depositions was unreasonable. (R. Eliason, S. Eliason, Huffman, Okovita and Bloom 2) (See Keats Decl. ¶ 23-20).

4. Plaintiffs' Retention of Non-Local Counsel

The Project site and many witnesses who testified in this case are located at Big Bear Lake in San Bernardino County, California. Plaintiffs filed this case in the nearby district court in Riverside County where it remained from April 2004 to February 2005 when it was transferred, on the Court's own initiative, to Los Angeles County. Defendants argue that $44,055.00 in fees was unnecessarily incurred by the Center's attorneys in traveling to court appearances, meetings and depositions.

*7 With one exception, defendants seek to disallow Kassia Siegel's travel time after RKMC (located in Los Angeles, California) entered the case. Ms. Siegel works out of Joshua Tree in San Bernardino County. Adam Keats works out of the Center's San Francisco office. Defendants challenge all of Mr. Keat's travel time from San Francisco, arguing that the Center should have hired “local counsel” rather than having Mr. Keats represent them. Many of the challenged time entries involve travel to client meetings in Big Bear Lake, depositions noticed by the defendants, appearances at court hearings and trial preparation meetings with co-counsel.

The Center for Biological Diversity is a non-profit organization. Ms. Siegel and Mr. Keats are exceptionally qualified in-house counsel. The Court finds that the Center is not required to hire, nor required to establish that it could not retain, outside counsel which it would have to pay to prosecute its case when qualified inhouse counsel is competent and available to represent the Center at no additional cost.

5. Roman Silberfeld's Time

Defendants seek to strike $52,067.50 of Roman Silberfeld's time because he “may also be billing for work related to other litigation, but it is impossible to tell”. Defendants did not submit any evidence supporting their challenge.

Mr. Silberfeld has sworn under oath that his work related to this case and there is no evidence to the contrary. Furthermore, the specific nature of Mr. Silberfeld's work easily can be determined from the contemporaneous entries of Mr. Silberfeld's partners and co-counsel. This court has no reason to doubt that Mr. Silberfeld's work related to the prosecution of the case and that it took the time recorded. Marbled Murrelet v. Pacific Lumber 163 F.R.D. 308, 322 (N.D.Cal. 1995).

E. Litigation Expenses

Defendants challenge $105,770.32 of plaintiffs' requested costs on the grounds that insufficient documentation was provided by RKMC, the Center and Delano in plaintiffs' motion. (See Exhibit “F” to opposition). However, plaintiffs subsequently submitted voluminous backup documentation of their cost request which cures any prior deficiencies. See, Supplemental Conn Declaration, Exs. 9-11 filed October 30, 2006.)

For instance, Defendants challenge $8,851.53 in expert costs requested by RKMC, but RKMC subsequently submitted copies of an invoice from, and check to, Tim Krantz in that amount dated September 7, 2006. (See Exh. 9, p. 40-41 to the Supplemental Conn Declaration). Defendants challenge $36,022.35 in expert fees claimed by the Center, but the Center submitted copies of expert invoices totaling that amount, (Id. Exh. 10, p. 233-238) and Delano submitted a copy of an invoice documenting expert fees paid by him of $1,237.00 (Id. Ex. 11, p. 347).

Plaintiffs also submitted appropriate documentation of the remaining cost items challenged by defendants as well as declarations attesting to the nature of, and need for, the costs incurred. Given the litigious nature of this litigation, the TRO, trial, depositions and voluminous documentation generated for the Project by the defendants and various federal and state agencies, this Court finds plaintiffs' cost request to be reasonable. Accordingly, the Court awards plaintiffs costs in the amount of $114,772.92.[7]

III. Conclusion

*8 In little more than a year, plaintiffs obtained a TRO and preliminary injunction, participated in extensive written and oral discovery, successfully opposed defendants' motion to dismiss and motion for summary judgment, tried the case to an outcome which was successful on all claims, filed numerous post-trial briefs and successfully opposed defendants' motion for new trial. The extensive nature of the work required to achieve these results in detailed is plaintiffs' counsels' declarations and time records. The complex evidence and claims in this case, as well as the critical environmental issues, justify the time spent by plaintiffs' attorneys in both pursuing and defending their clients' claims and in achieving these outstanding results.

For the reasons stated above, the Court grants plaintiffs' motion. With the aforesaid modifications to the lodestar, the Court awards plaintiffs $1,578,663.20 in fees[8] and $114,772.92 in costs for a total award of $1,693,436.12, in addition to the costs taxed by the Clerk.