The opinion of the court was delivered by: ORRICK
Attorneys from six different legal service organizations and law firms, representing a total of twenty-three Indian tribes who have intervened in this action for declaratory and injunctive relief, have filed petitions and affidavits seeking fees and costs in excess of $ 450,000 for services rendered to date in Phase II of this litigation. Counsel for the intervening tribes also request that this "lodestar" figure be augmented by a multiplier based on the contingent circumstances under which the services were rendered and the quality of the services.
An award of attorneys' fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 (the "Act"), is appropriate because the intervening tribes have succeeded in establishing rights secured by federal law in an action that is based in part on claims involving constitutionally-secured rights. However, fees will not be awarded at this time for services rendered on issues on which the intervening tribes cannot yet be said to have prevailed. While this Memorandum Opinion sets forth the Court's findings with respect to the appropriateness of an award and the rate at which fees should be set for particular attorneys, the exact amount of the fees to be awarded cannot be calculated until counsel file supplemental affidavits indicating the hours spent on the issues on which intervenors have not prevailed at this time, namely, whether the right to have treaty fish protected from environmental degradation has been violated and, if so, what relief, if any, is warranted.
This complex case was commenced in 1970 by the United States on its own behalf and as trustee of seven Indian tribes to settle several disputed issues concerning the nature and scope of the Indian tribes' treaty-based fishing rights. The seven Indian tribes subsequently intervened in the action along with other tribes. The case has been litigated in two phases. Phase I culminated in a 1979 Supreme Court opinion which conclusively established the tribes' treaty-based right to a specific allocation of salmon and steelhead trout in the geographic area encompassed in this litigation. Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 685-89, 61 L. Ed. 2d 823, 99 S. Ct. 3055 (1979). Phase II, the subject of these applications for fees and costs, involved consideration of two issues reserved by the Phase I court, specifically: (1) whether hatchery-bred fish are included in the allocable fish population, and (2) whether the right of taking fish incorporates the right to have treaty fish protected from environmental degradation. In its Opinion filed September 26, 1980, this Court granted the plaintiffs' motions for partial summary judgment, finding that hatchery-bred fish were to be included in the allocation and that the fishing right did include the right to have treaty fish protected from environmental degradation. The Opinion specifically did not reach the questions whether the right to have treaty fish protected from environmental degradation has been violated and, if so, what relief, if any, may be warranted. United States v. Washington, 506 F. Supp. 187, 202 (1980). Although this Court entered judgment on the motions for partial summary judgment,
these questions remain for future resolution.
On May 8, 1981, Judge Craig awarded attorneys' fees to counsel for the intervening tribes pursuant to 42 U.S.C. § 1988 for services rendered in Phase I of this litigation. Counsel for the intervening tribes now seek fees and costs for services provided in Phase II of this litigation and seek a declaration that they will be entitled to additional fees for any subsequent services rendered in enforcing the Phase II decision or in defending it on appeal.
Although the traditional rule in American courts has been to require each party to bear his own costs and attorneys' fees, see Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975), Congress altered this rule in cases involving the vindication of civil rights by passing the Act. By its terms, the Act authorizes the payment of reasonable attorneys' fees in suits to enforce the provisions of 42 U.S.C. § 1983, and subsequent decisions have made it clear that such awards to prevailing parties are to be the norm rather than the exception. E.g., Sethy v. Alameda County Water District, 602 F.2d 894, 897 (9th Cir. 1979).
Neither the United States nor the intervening tribes specifically alleged in their pleadings in Phases I and II of this action that they were seeking relief for deprivation of rights secured by laws of the United States as provided by § 1983, or alleged jurisdiction under its statutory authority. 28 U.S.C. § 1343. Judge Boldt nevertheless concluded that jurisdiction over the allocation issue in Phase I under § 1343(3) and (4) was established by plaintiffs' allegations, United States v. Washington, 384 F. Supp. 312, 399 (W.D. Wash. 1974) (conclusion of law 1c), and Judge Craig interpreted Judge Boldt's specific conclusions concerning violations of due process and discrimination as a determination of claims under § 1983. See Order of Judge Craig filed May 8, 1981. This Court also recognized the discriminatory nature of the violations found in Phase I of these proceedings United States v. Washington, supra, 506 F. Supp. 187, 192 & n.18, 204 & n.66. It is clearly the law of this case that Phase I considered claims for relief from deprivation of constitutionally-secured rights under § 1983 which were brought before the court within the jurisdiction established by 28 U.S.C. § 1343.
Although Phase II involves issues reserved by the Phase I court, it is not a different lawsuit. The constitutional nature and jurisdictional basis of the claims raised in Phase I remain an element of the proceedings in Phase II of this case. See Richmond v. Weiner, 353 F.2d 41, 44 (9th Cir. 1965) (holding that the district court continued to exercise jurisdiction over a nonfederal claim following bifurcation of the claim from federal issues). The Supreme Court has recently recognized that Congress intended to authorize the award of attorneys' fees in cases in which a plaintiff prevails on a claim for which fees ordinarily could not be awarded under § 1988 if that claim were pendent to a substantial constitutional claim, and that this legislative action did not violate the Eleventh Amendment when such awards were sought against a state defendant. Maher v. Gagne, 448 U.S. 122, 132, 65 L. Ed. 2d 653, 100 S. Ct. 2570 and n.15 (1980). There can be no doubt of the substantial nature of the constitutional claims in Phase I in light of Judge Boldt's findings in favor of plaintiffs. Viewing the claims in Phase II as pendent to the constitutionally-based claims of Phase I, it is apparent that Phase II is an appropriate case for considering requests for attorneys' fees authorized by 42 U.S.C. § 1988.
Wholly apart from this pendency theory, an award of attorneys' fees under § 1988 is appropriate in this action because the claims considered by this Court in Phase II are cognizable in their own right as § 1983 claims. State officials acting in their official capacities are among the defendants alleged to have violated the rights of the intervening tribes. They are "persons" within the meaning of § 1983 against whom attorneys' fees may be awarded. Hutto v. Finney, 437 U.S. 678, 57 L. Ed. 2d 522, 98 S. Ct. 2565 (1978). The actions allegedly undertaken by defendants that violated the rights of the intervening tribes were alleged to have been performed "under color of state law" in the form of regulations removing hatchery-reared fish from the share of intervening tribes and the issuance of permits for activities that damaged tribal fisheries.
The rights claimed by the intervening tribes and declared by this Court are found in treaties ratified by the Congress
and hence must be viewed as rights secured by "laws" of the United States. See C. Antieau, Federal Civil Rights Acts § 207 (1980). Thus, while neither the United States nor the intervening tribes pleaded these claims specifically under § 1983,
the allegations satisfy the requirements for pleading claims of deprivation of statutorily-secured rights under § 1983. Because attorneys' fees awards under § 1988 are not limited only to § 1983 claims based on violations of civil rights or equal protection laws but are applicable to all statutorily-based § 1983 claims heard by a court with jurisdiction over the claims, Maine v. Thiboutot, 448 U.S. 1, 65 L. Ed. 2d 555, 100 S. Ct. 2502 (1980); Maher, supra, 448 U.S. at 128, the applications of tribal counsel for fees in Phase II are appropriately presented.
Under either of these theories, it is clear that the intervening tribes "prevailed" within the meaning of § 1988 at least with respect to the issues on which partial summary judgment was entered. While several issues remain to be tried concerning violations of the tribes' environmental right and the potential remedies that may be applied, the Supreme Court has recently noted that "nothing in the language of § 1988 conditions the District Court's power to award fees on full litigation of the issues or on a judicial determination that the plaintiff's rights have been violated." Id. Both the Supreme Court and Congress have recognized that an interlocutory award of fees may be appropriate following an order that determines substantial rights of the parties. See Hanrahan v. Hampton, 446 U.S. 754, 757, 64 L. Ed. 2d 670, 100 S. Ct. 1987 (1980). Here, substantial rights to a valuable resource, hatchery-bred fish, and to the protection of a valuable natural resource, the fisheries, have been declared to exist in the intervening tribes.
Because the claims before this Court in Phase II come within the provisions for attorneys' fees under § 1988 either under a theory of pendency to constitutionally-based claims in Phase I or as statutorily-based § 1983 claims in their own right, and because the intervening tribes prevailed with respect to those aspects of the claims which have been presented to the Court thus far, reasonable attorneys' fees and costs will be awarded to tribal counsel.
Section 1988 provides for the payment of a "reasonable attorney's fee as part of the costs." In determining what is a reasonable fee for the services rendered by tribal counsel in this action, the Court will apply the standards of review listed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert. denied, 425 U.S. 951, 48 L. Ed. 2d 195, 96 S. Ct. 1726 (1976), within the framework first delineated in Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973).
The initial step under both the Kerr and Lindy approaches is to calculate the time and labor required by the litigation. The Court has carefully scrutinized the time records supplied by counsel for instances of duplicative effort, see, e.g., In re Equity Funding Corp. of America Securities Litigation, 438 F. Supp. 1303, 1328 (C.D. Cal. 1977), and vagueness or inaccuracy in recordkeeping, e.g., Lockheed Minority Solidarity Coalition v. Lockheed Missiles & Space Co., 406 F. Supp. 828, 831 (N.D. Cal. 1976). With the possible exception of a number of hours expended in research and drafting of the briefs concerning attorneys' fees, the Court's examination has revealed no significant evidence of duplication. The tribal counsel's services have been ably coordinated by lead counsel. The division of services among counsel most active in the case,
while not formal, constituted an efficient use of their time. Although the interaction between tribal counsel and counsel for the United States has not been detailed in these applications, it is apparent that the United States relied extensively on the discovery efforts of tribal counsel,
and that tribal counsel, coordinated their efforts with those of the attorneys for the United States.
Participation by attorneys for individual tribes in this action was largely limited to work on discovery that pertained to the unique circumstances and interests of their particular clients and did not duplicate the efforts of lead counsel who represented the general interests of the tribes as a whole. Tribal counsel's affidavits and time records also indicate that counsel maintained contemporaneous time records. In limited instances in which hours requested were reconstructed, the sources used were reliable, the services performed were reasonably detailed, and the hours requested appear to have been conservatively estimated. Such reconstructions are a proper basis for awarding fees. Detroit v. Grinnell Corp., 560 F.2d 1093, 1102-03 (2d Cir. 1977).
The Court has also examined the fee applications for evidence of unnecessary expenditures of services by tribal counsel. Notwithstanding defendants' generalized allegations of such expenditures, the Court has found no specific instances in the time records submitted of work that was not reasonably undertaken by the tribal counsel. While tribal counsel are seeking compensation for a great many hours of work, the time requested must be assessed against another Kerr factor, the difficulty of the questions involved in Phase II. Copeland v. Marshall, 205 U.S. App. D.C. 390, 641 F.2d 880, 890 (D.C. Cir. 1980). In this case, the hatchery issue was characterized by highly technical factual development, while defendants themselves have recognized the novelty of the environmental rights issue raised by plaintiffs.
In light of the difficulty of these issues, the number of hours requested is not, on its face, excessive.
There is, however, one category of services that should not be included in an award of services at this time. The Court has yet to consider two issues expressly reserved from the partial summary judgment proceedings, namely, whether the right to have treaty fish protected from environmental degradation has been violated and, if so, what relief, if any, may be warranted. While the intervening tribes may be considered "prevailing parties" for attorney's fees purposes if they "succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit," the amount of fees received should be based on the work performed on issues on which they were successful. Sethy, supra, 602 F.2d at 897-98. See also Copeland, supra, 641 F.2d at 891-92 & n.18; Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978). Because litigation of this case is not yet concluded, it is not analogous to cases in which fees have been awarded for services performed on issues that were necessarily prepared but not ultimately reached. See, e.g., Seattle School District No. 1 v. Washington, 633 F.2d 1338, 1349 (9th Cir. 1980). ...