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Sierra Club v. BNSF Railway Co.

United States District Court, W.D. Washington, Seattle

July 25, 2017

SIERRA CLUB, et al., Plaintiffs,
v.
BNSF RAILWAY COMPANY, Defendant.

          ORDER GRANTING IN PART PLAINTIFFS' MOTION FOR ATTORNEY FEES

          Jonn C. Cougnenour UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiffs' motion for attorney fees and costs (Dkt. No. 386). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS in part and DENIES in part the motion for the reasons explained herein.

         I. BACKGROUND

         The above-captioned matter was a Clean Water Act (CWA) citizen lawsuit in which seven environmental advocacy organizations alleged that Defendant BNSF Railway Company violated federal law by allowing its railcars to discharge coal and related pollutants into protected waterways within Washington. (See Dkt. No. 113.) Plaintiffs based Defendant's CWA violations on the alleged fact that “[e]ach and every train and each and every rail car discharges coal pollutants to waters of the United States when traveling adjacent to, over, and in proximity to the waters of the United States.” (Id. at ¶ 48.) After multiple years of litigation, the Court denied the parties' cross motions for summary judgment. (Dkt. No. 337.) After six days of trial, the parties reached a settlement in principle. (Dkt. No. 367.)

         On May 2, 2017, the Court entered the proposed consent decree. (Dkt. No. 384.) Defendant is required to (1) perform a study of the viability of coal car covers; (2) remove and monitor the coal and petcoke at six separate sites; and (3) pay $1 million to The Rose Foundation for Communities and the Environment. (See Id. at 5-9.) The consent decree also provides that Plaintiffs may move for reasonable attorney fees and litigation costs. (Id. at 10.) Plaintiffs filed this instant motion, arguing they are entitled to fees and that the requested fees are appropriate. (Dkt. No. 386.)

         II. DEFENDANT'S SURREPLY

         Defendant filed a surreply to strike the declarations submitted with Plaintiffs' reply. (Dkt. No. 415.) Defendant argues the declarations contain legal arguments and offer new evidence. (Id. at 1.) The Court GRANTS the request to strike the declarations to the extent the declarations contain legal arguments in an attempt to circumvent the reply brief page limits. (See, e.g., Dkt. No. 404 at ¶ 9.) However, the Court DENIES the request to the strike costs documentation exhibits. (See, e.g., Dkt. Nos. 404-5, 405-1.) As detailed below, the documentation provided with the original motion was detailed enough to evaluate if the costs were reasonable. The Court does not need to rely on the reply exhibits. Therefore, these documents are not prejudicial and will not be stricken.

         III. MOTION FOR ATTORNEY FEES AND COSTS

         Attorney fees and costs are awarded under the CWA if the Court finds that Plaintiffs are the “prevailing or substantially prevailing party” and that an award is “appropriate.” St. John's Organic Farm v. Gem Cty. Mosquito Abatement Dist., 574 F.3d 1054, 1058 (9th Cir. 2009) (citing 33 U.S.C. § 1365(d)).

         A. Prevailing Party

         Plaintiffs are the prevailing party if (1) the settlement is judicially enforceable; (2) the agreement materially alters the relationship between the parties; and (3) Plaintiffs obtained actual relief on the merits of their claims. Id. at 1059. Defendant concedes that the first two elements are met, but makes the bold argument Plaintiffs did not obtain actual relief on the merits. (Dkt. No. 399 at 2.) Defendant is wrong.

         Essentially, Defendant claims that because Plaintiffs did not obtain the exact relief they sought in their complaint, they are not the prevailing party. (Dkt. No. 399 at 2-3.) However, to obtain actual relief on the merits, “[t]he relief achieved need not be of precisely the same character as the relief sought in the complaint, but it must require defendants to do something they otherwise would not have been required to do.” St. John's Organic Farm, 574 F.3d at 1059. This burden is not demanding. “[T]he amount of relief obtained may be much smaller than the amount sought” and it “need not be identical in form.” Id. at 1060. There is no dispute that the relief Plaintiffs obtained in the consent decree requires Defendant to do something it otherwise would not have been required to do. The agreement requires substantial work at a significant cost to Defendant. Moreover, the relief achieved is parallel and similar to the relief originally requested. The Court will not entertain Defendant's argument any further. Plaintiffs are the prevailing party.

         B. Appropriate Attorney Fees and Costs

         After agreeing in their reply to reduce some requests, Plaintiffs ultimately request $3, 549, 095.62 in attorney fees and $298, 331.14 in costs, totaling $3, 847, 426.76. As a preliminary note, this case was vigorously litigated for many years, as evidenced by over 400 docket entries and the nearly 10, 000 hours Plaintiffs' counsel worked on the matter. The complexity of the issues and the intensity of litigation counsels a substantial attorney fees and costs award to the prevailing party, Plaintiffs.

         1. Attorney Fees

         Attorney fees are calculated using the “lodestar” method, which involves multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). In Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), the Ninth Circuit listed a number of factors district courts should consider in making their determination of both the number of hours reasonably expended and a reasonable hourly rate. “Among the factors identified by Kerr as relevant to the determination of a reasonable fee are the following: experience, reputation, and ability of the attorney; the outcome of the results of the proceedings; the customary fees; and the novelty or the difficulty of the question presented.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 1211 (9th Cir. 1986).

         a. Hours Expended

         Defendant does not argue that Plaintiffs spent too many hours on this case in proportion to the magnitude of their allegations. (Dkt. No. 399 at 4.) Instead, Defendant argues that Plaintiffs worked too many hours because the allegations were “preposterous” and Plaintiffs' counsel overbilled in the ways described below. (Id.) The Court concludes Plaintiffs' claims were not preposterous. This is emphasized by the consent decree, which substantially alters Defendant's behavior, and the massive amount of evidence put forward at trial regarding coal and petcoke discharges. Therefore, Defendant's arguments that the attorney fees amount should be reduced because the lawsuit “overpromised” and the evidence “under-delivered, ” (id. at 11), are unpersuasive and will not be considered any further. The Court will address Defendant's overbilling arguments in the order they were briefed in the opposition.

         Unnecessary Work: Defendant contends the Court should eliminate hours billed for unnecessary work including Plaintiffs' (1) improperly filed separate statement of material facts, (2) subpoenas which were either quashed or withdrawn; (3) motions regarding confidentiality designations; (4) lengthy trial brief; and (5) preparation of over 1, 500 trial exhibits when approximately 250 were ultimately used at trial. (Dkt. No. 399 at 5.)

         The Court concludes the improperly filed separate statement of material facts was unnecessary work. This district does not allow such documents to be filed. Regardless of whether or not the Court ...


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