Case 3:16-cv-01574-VC Document 320 Filed 03/16/22 Page 1 of 22
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`GEORGE A. KIMBRELL (Pro Hac Vice)
`AMY VAN SAUN (Pro Hac Vice)
`Center for Food Safety
`2009 NE Alberta Street, Suite 207
`Portland, OR 97211
`T: (971) 271-7372
`Emails: gkimbrell@centerforfoodsafety.org
`
`avansaun@centerforfoodsafety.org
`
`
`STEPHEN D. MASHUDA (Pro Hac Vice)
`Earthjustice
`810 Third Avenue, Suite 610, Seattle, WA 98104
`T: (206) 343-7340 / F: (206) 343-1526
`Email: smashuda@earthjustice.org
`
`BRETTNY HARDY (CSB No. 316231)
`Earthjustice
`50 California Street, Suite 500, San Francisco, CA 94111
`T: (415) 217-2142
`Email: bhardy@earthjustice.org
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`
`
`INSTITUTE FOR FISHERIES
`RESOURCES, et al.,
`Plaintiffs,
`
`v.
`
`XAVIER BECERRA, et al.,
`
`
`Defendants,
`
`and
`
`AQUABOUNTY TECHNOLOGIES, INC.
`
`
`Intervenor-Defendant.
`
`Case No. 3:16-cv-01574-VC
`
`
`
`PLAINTIFFS’ MOTION AND
`MEMO IN SUPPORT OF AWARD
`OF COSTS, FEES, AND OTHER
`EXPENSES PURSUANT TO THE
`EQUAL ACCESS TO JUSTICE
`ACT AND THE ENDANGERED
`SPECIES ACT
`
`Date: April 21, 2022
`Time: TBD
`Location: Video
`Judge: Hon. Vince Chhabria
`
`
`
`
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`CASE NO. 16-1574-VC
`PLAINTIFFS’ MOTION AND MEMO IN SUPPORT OF AWARD OF FEES AND EXPENSES
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`Case 3:16-cv-01574-VC Document 320 Filed 03/16/22 Page 2 of 22
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`
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`TABLE OF CONTENTS
`
`NOTICE OF MOTION AND MOTION ....................................................................................... 1
`
`INTRODUCTION ......................................................................................................................... 1
`
`I.
`
`II.
`
`III.
`
`IV.
`
`V.
`
`VI.
`
`PLAINTIFFS ARE PREVAILING PARTIES. ..................................................... 2
`
`FDA CANNOT MEET ITS BURDEN OF SHOWING THAT ITS
`POSITION WAS SUBSTANTIALLY JUSTIFIED. ............................................ 5
`
`PLAINTIFFS ARE ELIGIBLE FOR AN EAJA AWARD. .................................. 6
`
`PLAINTIFFS ARE ENTITLED TO AN ENHANCEMENT FOR
`ATTORNEYS’ RATES UNDER EAJA. .............................................................. 7
`
`THE HOURS FOR WHICH REIMBURSEMENT IS SOUGHT
`ARE REASONABLE AND APPROPRIATE..................................................... 13
`
`PLAINTIFFS ARE ENTITLED TO RECOVER COSTS AND
`OTHER EXPENSES. .......................................................................................... 15
`
`CONCLUSION ............................................................................................................................ 15
`
`CERTIFICATE OF SERVICE .................................................................................................... 17
`
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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Federal Cases
`
`In re Application of Mgndichian,
`312 F. Supp. 2d 1250 (C.D. Cal. 2003) ...................................................................................15
`
`Ass’n of Cal. Water Agencies v. Evans,
`386 F.3d 879 (9th Cir. 2004) ...............................................................................................4, 11
`
`Bellinghausen v. Tractor Supply Co.,
`306 F.R.D. 245 (N.D. Cal. 2015) .............................................................................................12
`
`Camacho v. Bridgeport Fin.,
`523 F.3d 973 (9th Cir. 2008) ...................................................................................................11
`
`Carbonell v. I.N.S.,
`429 F.3d 894 (9th Cir. 2005) .....................................................................................................2
`
`Cervantez v. Sullivan,
`739 F. Supp. 517 (E.D. Cal. 1990).............................................................................................6
`
`Citizens for Better Forestry v. U.S. Dep’t of Agric.,
`2010 WL 3222183 (N.D. Cal. Aug. 13, 2010) ..........................................................................8
`
`Ctr. for Food Safety v. Vilsack,
`No. C-08-00484 JSW (EDL), 2011 WL 6259891 (N.D. Cal. Oct. 13, 2011) ...........................8
`
`Ferland v. Conrad Credit Corp.,
`244 F.3d 1145 (9th Cir. 2001) .................................................................................................11
`
`G. F. v. Contra Costa Cnty.,
`2015 WL 7571789 (N.D. Cal. Nov. 25, 2015) ........................................................................12
`
`Gates v. Deukmejian,
`987 F.2d 1392 (9th Cir. 1992) .................................................................................................14
`
`Geertson Seed Farms v. Johanns,
`No. C 06-01075 CRB, 2011 WL 5403291 (N.D. Cal. Nov. 8, 2011)........................................8
`
`Hensley v. Eckerhart,
`461 U.S. 424 (1983) .............................................................................................................2, 13
`
`Idaho Watersheds Project v. Jones,
`253 F. App’x 684 (9th Cir. 2007) ..............................................................................................4
`
`Inst. for Fisheries Res. v. U.S. Food and Drug Admin.,
`499 F. Supp. 3d 657 (N.D. Cal. 2020) ...........................................................................1, 3, 5, 6
`
`
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`Federal Cases (Cont’d.)
`
`Page(s)
`
`Int’l Woodworkers of Am., AFL-CIO, Loc. 3-98 v. Donovan,
`769 F.2d 1388 (9th Cir. 1985) ...................................................................................................5
`
`Int’l Woodworkers of Am., AFL-CIO, Loc. 3-98 v. Donovan,
`792 F.2d 762 (9th Cir. 1985) ...................................................................................................15
`
`Kali v. Bowen,
`854 F.2d 329 (9th Cir. 1988) .....................................................................................................5
`
`Love v. Reilly,
`924 F.2d 1492 (9th Cir. 1991) ...............................................................................................7, 8
`
`LSO, Ltd. v. Stroh,
`205 F.3d 1146 (9th Cir. 2000) ...................................................................................................4
`
`Marbled Murrelet v. Babbitt,
`182 F.3d 1091 (9th Cir. 1999) ...................................................................................................4
`
`Marbled Murrelet v. Pac. Lumber Co.,
`163 F.R.D. 308 (N.D. Cal. 1995) .............................................................................................11
`
`Moore v. James H. Matthews & Co.,
`682 F.2d 830 (9th Cir. 1982) ...................................................................................................13
`
`Moreno v. City of Sacramento,
`534 F.3d 1106 (9th Cir. 2008) .................................................................................................13
`
`Northern Spotted Owl v. Lujan,
`758 F. Supp. 621 (W.D. Wash. 1991) ........................................................................................8
`
`Pierce v. Underwood,
`487 U.S. 552 (1988) ...............................................................................................................5, 7
`
`Pineros y Campesinos Unidos Del Noroeste v. Pruitt,
`No. 17-cv-03434, 2018 WL 6613830 (N.D. Cal. Oct. 16, 2018) ............................................10
`
`Pollinator Stewardship Council v. EPA,
`No. 13-72346, 2017 WL 3096105 (9th Cir. June 27, 2017) ................................................8, 10
`
`Portland Audubon Soc’y v. Lujan,
`865 F. Supp. 1464 (D. Or. 1994) ...............................................................................................7
`
`Rawlings v. Heckler,
`725 F.2d 1192 (9th Cir. 1984) ...................................................................................................5
`
`Ridgeway v. Wal-Mart Stores, Inc.,
`269 F. Supp. 3d 985 (N.D. Cal. 2017) .....................................................................................12
`
`Ruckelshaus v Sierra Club,
`463 U.S. 680 (1983) ...................................................................................................................4
`
`
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`Federal Cases (Cont’d.)
`
`Page(s)
`
`Schwarz v. Sec’y of Health & Hum. Serv.,
`73 F.3d 895 (9th Cir. 1995) .....................................................................................................12
`
`Seattle Audubon Soc’y v. Evans,
`771 F. Supp. 1081 (W.D. Wash. 1991) ......................................................................................8
`
`Thangaraja v. Gonzales,
`428 F.3d 870 (9th Cir. 2005) .....................................................................................................5
`
`United States v. Real Prop. Known as 22249 Dolorosa St.,
`190 F.3d 977 (9th Cir. 1999) .....................................................................................................2
`
`Wash. Dep’t of Wildlife v. Stubblefield,
`739 F. Supp. 1428 (W.D. Wash. 1989) ..................................................................................7, 8
`
`Williams v. Bowen,
`966 F.2d 1259 (9th Cir. 1991) ...................................................................................................5
`
`Wynn v. Chanos,
`Case No. 14-cv-04329-WHO, 2015 WL 3832561 (N.D. Cal. June 19, 2015),
`aff'd, 685 F. App’x 578 (9th Cir. 2017) ...................................................................................12
`
`Federal Statutes
`
`5 U.S.C. § 706 ....................................................................................................................1, 7, 9, 14
`
`16 U.S.C. § 1540(g) .........................................................................................................................1
`
`16 U.S.C. § 1540(g)(4) ..........................................................................................................1, 4, 15
`
`28 U.S.C. § 1920 ............................................................................................................................15
`
`28 U.S.C. § 2412(a)(1) ...................................................................................................................15
`
`28 U.S.C. § 2412(d) ............................................................................................................... passim
`
`28 U.S.C. § 2412(d)(1)(A) .........................................................................................................2, 15
`
`28 U.S.C. § 2412(d)(2)(A) ...............................................................................................................7
`
`28 U.S.C. § 2412(d)(2)(B) ...............................................................................................................7
`
`Internal Revenue Code § 501(c)(3)..................................................................................................7
`
`
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`NOTICE OF MOTION AND MOTION
`PLEASE TAKE NOTICE that the following Application for an Award of Attorney’s Fees,
`Costs, and Other Expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), and
`the Endangered Species Act, 16 U.S.C. § 1540(g), in the total amount of $1,945,889.14 will be
`heard by the Honorable Vince Chhabria of the United States District Court for the Northern District
`of California on no later than April 21, 2022, or as soon thereafter as counsel can be heard.
`INTRODUCTION
`Plaintiffs seek fees under the Equal Access to Justice Act (EAJA) because this action was
`brought under the Administrative Procedure Act (APA), 5 U.S.C. § 706. 28 U.S.C. § 2412(d). Under
`EAJA, a court shall award fees and costs to a prevailing party unless the court finds that the position
`of the United States was substantially justified or that special circumstances make an award unjust.
`Id. Plaintiffs meet these criteria and are eligible for a fee award at enhanced rates that reflect the
`expertise of its attorneys. Plaintiffs also seek fees under the Endangered Species Act (ESA) as one
`of the primary claims in this case—on which they were ultimately successful—was filed pursuant to
`the ESA citizen suit provision, 16 U.S.C. § 1540(g). The ESA allows a Court to award fees
`“whenever the court determines such award is appropriate.” 16 U.S.C. § 1540(g)(4).
`Plaintiffs filed this lawsuit challenging the Food and Drug Administration’s (FDA) approval
`of genetically engineered (GE) salmon over five years ago because FDA violated the National
`Environmental Policy Act (NEPA), the ESA, and the Federal Food, Drug, and Cosmetic Act
`(FFDCA) when it approved GE salmon—the first-ever such approval—without considering the full
`suite of environmental risks. After more than four years of extensive pre-merits motions practice,
`the Court ruled that FDA violated NEPA and the ESA and rejected the agency’s arguments that it
`lacked the authority to consider environmental effects under the FFDCA. Inst. for Fisheries Res. v.
`U.S. Food and Drug Admin., 499 F. Supp. 3d 657 (N.D. Cal. 2020). The Court held unlawful and
`remanded FDA’s approval decision, Environmental Assessment, and ESA “no effect” decision,
`requiring the agency to comply with its legal obligations under both NEPA and the ESA, including
`renewed consideration of whether to prepare a full Environmental Impact Statement and whether to
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`engage in consultation with the expert federal wildlife agencies under the ESA’s Section 7. Id. FDA
`initially appealed this Court’s judgment on April 12, 2021, ECF 304, but subsequently voluntarily
`dismissed that appeal on April 23, 2021, ECF 306.
`Immediately following, on May 21, 2021, Plaintiffs filed a “placeholder” fee application to
`attempt settlement, ECF 309, and then sent Defendants an initial settlement offer letter with
`supporting materials in July. Defendants did not respond until immediately before Thanksgiving.
`Subsequently, Plaintiffs and FDA were unable to make progress towards agreement. Thus, pursuant
`to ECF 318 and 319, Plaintiffs file this renewed/second motion for fees.
`In their initial spring 2021 petition, Plaintiffs’ line-by-line review of their timesheets for
`reasonableness eliminated over 975 hours, or 19% of total hours spent, for a total of 4,199.5 hours
`sought. ECF 309; Kimbrell Decl. ¶¶ 39-42; Mashuda Decl. ¶¶ 21-23. In this filing, Plaintiffs have
`further reduced their application (by 1,008.9 hours), discretionarily reducing the total hours sought
`by 1,983.9 hours or approximately 38%. Additionally, Plaintiffs have also reduced the hourly
`market rates sought to reflect the multiple years over which this case stretched. A summary of each
`timekeepers’ hours sought and hourly rates for each year is attached as Exhibit A to the van Saun
`Decl. (filed concurrently).
`Accordingly, for the reasons explained below, because the Plaintiffs are prevailing parties,
`the FDA lacks substantial justification, and the hours and rates sought are reasonable, Plaintiffs seek
`an award of $1,936,162 in attorney’s fees and $9,727.14 in costs/expenses.
`PLAINTIFFS ARE PREVAILING PARTIES.
`I.
`EAJA provides that a court “shall award to a prevailing party . . . fees and other expenses
`. . . incurred by that party in any civil action . . . brought by or against the United States.” 28
`U.S.C. § 2412(d)(1)(A). For purposes of EAJA, a party prevails if it “succeed[s] on any significant
`issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Hensley v.
`Eckerhart, 461 U.S. 424, 433 (1983); United States v. Real Prop. Known as 22249 Dolorosa St.,
`190 F.3d 977, 981 (9th Cir. 1999); see also Carbonell v. I.N.S., 429 F.3d 894, 900 n.5 (9th Cir.
`2005). Plaintiffs plainly qualify as a prevailing party in this litigation. In its Opinion and Order, the
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`Court on the merits held that FDA violated both NEPA and the ESA and remanded to FDA to
`comply with both laws. Inst. for Fisheries Res., 499 F. Supp. 3d at 668-70.
`As to NEPA, the Court held that FDA’s conclusion that the GE salmon approval would have
`no significant environmental effects was based on a flawed environmental assessment that “stopped
`without assessing the possibility of harm to the natural salmon species in the unlikely event of
`genetically engineered salmon establishing themselves in the wild,” rendering arbitrary and
`capricious its conclusion “that approving the production and growth of these salmon will have no
`significant impact.” Id. at 666. Relatedly, the Court held that FDA’s failure to examine the risks and
`effects if GE salmon were to escape violated the ESA. See id. at 668 (“Because the FDA did not
`sufficiently examine whether the engineered salmon would significantly impact wild salmon under
`NEPA, it follows that the agency cannot defend its conclusion that the engineered salmon would
`have no effect at all on Gulf of Maine salmon.”). Finally, the Court rejected FDA’s argument that it
`lacked the authority under the FFDCA to consider the environmental risks of GE salmon escape as
`“creat[ing] absurd possibilities” and determined that “the agency is always required to consider the
`subset of environmental impacts that directly involve the health of animals or humans.” Id. at 663-
`64.
`
`These related rulings all stem from the central thrust of Plaintiffs’ complaint alleging that
`FDA arbitrarily approved GE salmon without first considering the risk and harms if they were to
`escape into the wild. Id. at 662 (noting that Plaintiffs’ claims are “all based on the assertion that the
`FDA failed to adequately assess the risk that the salmon would escape and survive in the wild, and
`the consequences that would result for the environment if this risk materialized”). The Court’s
`decision and holdings go to the heart of Plaintiffs’ claims and their overarching reason for filing this
`litigation, see, e.g., ECF 53 ¶¶ 1, 7-10, and the remand to FDA to reconsider its decisions provides
`relief in accordance with Plaintiffs’ objective of requiring FDA to complete a lawful analysis,
`protective of the environment and imperiled salmon, see, e.g., id. at 64–65, Prayers for Relief.
`Further, Plaintiffs seek fees under both EAJA as well as the ESA. The ESA allows a Court to
`award fees “award costs of litigation (including reasonable attorney and expert witness fees) to any
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`party, whenever the court determines such award is appropriate.” 16 U.S.C. § 1540(g)(4).
`Application of this provision requires an evaluation of (1) whether the plaintiff “prevailed” and (2)
`whether an award of fees is “appropriate.” Id.
`As to the first prong, unlike the fee-shifting provisions of many other environmental statutes,
`the ESA does not limit attorney fee awards to a “prevailing party.” See 16 U.S.C. § 1540(g)(4).
`Rather, a plaintiff is considered to have prevailed under the ESA where it has obtained any
`judicially enforceable relief, or even where its lawsuit was merely a catalyst to the defendant’s
`compliance. See, e.g., Ass’n of Cal. Water Agencies v. Evans, 386 F.3d 879, 884-85 (9th Cir. 2004);
`Idaho Watersheds Project v. Jones, 253 F. App’x 684, 685 (9th Cir. 2007).
`As to the second prong, attorney fees are “appropriate” under the ESA when a party achieves
`“some degree of success on the merits,” Ruckelshaus v Sierra Club, 463 U.S. 680, 694 (1983), or
`“succeeds on any significant issue in the litigation which achieves some of the benefit it sought in
`bringing suit.” LSO, Ltd. v. Stroh, 205 F.3d 1146, 1160 (9th Cir. 2000) (internal citations,
`quotations, and brackets omitted); see also Marbled Murrelet v. Babbitt, 182 F.3d 1091, 1094 (9th
`Cir. 1999) (ESA fee award appropriate if suit “has substantially contributed to the goals of the
`statute”).
`Here, Plaintiffs have prevailed on the merits of their ESA claim and an award of fees under
`the ESA is plainly appropriate. FDA’s compliance with the ESA for the GE salmon approval was
`a—if not the—central issue of the case. Plaintiffs overcame FDA and Intervenors’ efforts to limit
`the ESA claim to the administrative record and prevailed at summary judgment. Plaintiffs achieved
`their primary litigation goals regarding the ESA and the lawsuit has substantially contributed to the
`goals of the Act (preserving threatened and endangered species). Plaintiffs are entitled to recover
`their reasonable fees and costs under both the ESA recovery standards and EAJA.
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`II.
`
`FDA CANNOT MEET ITS BURDEN OF SHOWING THAT ITS POSITION WAS
`SUBSTANTIALLY JUSTIFIED.
`To the extent this application seeks fees under EAJA, FDA may defeat an award only if it
`can prove that its position was substantially justified both prior to and during the litigation. See, e.g.,
`Rawlings v. Heckler, 725 F.2d 1192, 1196 (9th Cir. 1984). The government bears the burden of
`proving reasonableness. Williams v. Bowen, 966 F.2d 1259, 1261 (9th Cir. 1991); Int’l
`Woodworkers of Am., AFL-CIO, Loc. 3-98 v. Donovan, 769 F.2d 1388, 1390 (9th Cir. 1985). To
`meet this burden, the agency must prove that its position had a reasonable basis in both fact and law.
`Pierce v. Underwood, 487 U.S. 552, 565 (1988). Courts consider the reasonableness of the
`underlying government action and the position asserted by the agency in defending its validity in
`court. Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988). The Ninth Circuit has instructed that “it
`will be only a decidedly unusual case in which there is substantial justification under the EAJA even
`though the agency’s decision was reversed as lacking in reasonable, substantial and probative
`evidence in the record.” Thangaraja v. Gonzales, 428 F.3d 870, 874-75 (9th Cir. 2005) (citation
`omitted).
`FDA cannot carry that heavy burden here. First, in greenlighting the first-ever GE food
`animal, FDA failed to evaluate effects on endangered wild salmon or other aspects of the
`environment—despite the clear requirements of NEPA, the ESA, the FFDCA, and a record replete
`with evidence from federal scientists and from the world’s preeminent experts on GE animal risk
`assessment urging FDA to fully examine and mitigate the potential consequences from GE salmon.
`Inst. for Fisheries Res., 499 F. Supp. 3d at 666-67 (summarizing some of this evidence). As the
`Court correctly underscored, the agency’s failure to complete this foundational risk assessment was
`“particularly important at the outset . . . [b]efore starting the country down a road that could well
`lead to commercial production of genetically engineered fish on a large scale.” Id. at 661. The Court
`determined that this fundamental error required FDA to fully analyze the risks to wild salmon and
`the environment before it makes any further decisions about GE salmon. Id. at 660-70.
`Second, in attempting to defend its failure to fully analyze the risks that GE salmon pose to
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`wildlife and the environment, FDA presented a novel and far-reaching argument the FFDCA did not
`provide the agency authority to consider whether—or act to ensure that—GE salmon (or any future
`GE animals) were safe for the environment. Id. at 662-63. In rejecting this argument—presented for
`the first time in the litigation—the Court explained that FDA’s position “would seem to create
`absurd possibilities” and that “[o]nce NEPA enters the discussion, the FDA’s narrow view of its
`authority becomes even less defensible.” Id. at 664. The Court noted that FDA’s newly minted
`“narrow interpretation of its own authority that the FDA has taken in this litigation does not appear
`to match up with the agency’s prior statements and actions.” Id. at 664 n.1. A conclusion that “either
`the government’s underlying conduct which gave rise to the litigation or its litigation position was
`not substantially justified is sufficient to support an award of EAJA fees.” Cervantez v. Sullivan, 739
`F. Supp. 517, 521 (E.D. Cal. 1990) (citation omitted). Here, FDA cannot demonstrate that this
`litigation position was substantially justified.
`Nor were FDA’s positions on related motions and issues that extended the course of this
`litigation substantially justified. For example, after this Court held that FDA must complete the
`record with documents that the agency directly or indirectly relied upon, ECF 88, FDA moved to
`stay this litigation and then sought an extraordinary writ of mandamus from the Ninth Circuit to
`avoid producing the full record. After the Ninth Circuit rejected the writ petition one year later, FDA
`initially claimed that it needed up to four years to produce the required documents, ECF 115 at 6,
`requiring the Court to order a far shorter production and assign oversight of record production to
`Magistrate Judge Corley, ECF 118. FDA’s arguments and overall approach in defending its
`categorical omission of substantial material from the record both prolonged this litigation and
`undercut any assertion that its position was substantially justified.
`PLAINTIFFS ARE ELIGIBLE FOR AN EAJA AWARD.
`III.
`Each of the plaintiff organizations in this case, except the Quinault Indian Nation, meets the
`eligibility requirements for an award of fees and costs under EAJA. Institute for Fisheries
`Resources, Golden Gate Salmon Association, Kennebec Reborn, Friends of Merrymeeting Bay,
`Cascadia Wildlands, Center for Biological Diversity, Ecology Action Centre, Friends of the Earth,
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`Food and Water Watch, and Center for Food Safety are exempt from taxation under § 501(c)(3) of
`the Internal Revenue Code and have fewer than 500 employees. Plaintiff Pacific Coast Federation of
`Fishermen’s Associations is a trade organization with fewer than 500 employees and a net worth
`that does not exceed $7 million. Accordingly, these Plaintiffs satisfy the EAJA party eligibility
`requirements for an award of fees and costs. 28 U.S.C. § 2412(d)(2)(B).
`The participation of the Quinault Indian Nation, a sovereign government, does not alter the
`availability of a fee award under EAJA because the remaining ten Plaintiffs would have pursued the
`case even without the participation of the Quinault Indian Nation and likely would not have brought
`the case without the participation of at least some of the EAJA eligible Plaintiffs. Wash. Dep’t of
`Wildlife v. Stubblefield, 739 F. Supp. 1428, 143-32 (W.D. Wash. 1989) (awarding fees despite
`participation of ineligible party because remaining Plaintiffs would have pursued case anyway). The
`participation of the Quinault Indian Nation has no effect on eligibility for fees under the ESA.
`
`IV.
`
`PLAINTIFFS ARE ENTITLED TO AN ENHANCEMENT FOR ATTORNEYS’
`RATES UNDER EAJA.
`EAJA establishes a 1996 recovery rate of $125 per hour, but a court may award a higher rate
`based on “a special factor, such as the limited availability of qualified attorneys for the proceedings
`involved.” 28 U.S.C. § 2412(d)(2)(A); Pierce, 487 U.S. at 572 (1988) (reimbursement above the
`EAJA rate is allowed where an attorney is “‘qualified for the proceedings’ in some specialized
`sense”). Here, the special factor is the distinctive knowledge and specialized skill in federal
`environmental litigation, specifically under NEPA, the ESA, and the APA, as well as knowledge of
`GE animals and FFDCA oversight of them, all required to successfully challenge the approval.
`The Ninth Circuit has long recognized environmental litigation as a specialized practice area
`warranting fee enhancements under EAJA. See, e.g., Love v. Reilly, 924 F.2d 1492, 1496 (9th Cir.
`1991) (“Environmental litigation is an identifiable practice specialty that requires distinctive
`knowledge.”). Moreover, courts have granted attorneys at Plaintiffs’ counsel Earthjustice
`(previously known as Sierra Club Legal Defense Fund) fee enhancements for their special expertise
`in environmental litigation in numerous cases. See, e.g., Portland Audubon Soc’y v. Lujan, 865 F.
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`Supp. 1464, 1476 (D. Or. 1994); Seattle Audubon Soc’y v. Evans, 771 F. Supp. 1081 (W.D. Wash.
`1991); Northern Spotted Owl v. Lujan, 758 F. Supp. 621 (W.D. Wash. 1991). Indeed, in Wash.
`Dep’t of Wildlife v. Stubblefield, 739 F. Supp. at 1433, the court awarded fees at an enhanced rate,
`observing that “[t]he Sierra Club Legal Defense Fund [] engages entirely in public interest
`environmental litigation, a discrete, specialized field of practice.” As that court noted, the
`combination of substantive legal knowledge and litigation expertise is found almost exclusively in
`public interest law firms like Earthjustice. Id. at 1432. See also Citizens for Better Forestry v. U.S.
`Dep’t of Agric., 2010 WL 3222183, at *7 (N.D. Cal. Aug. 13, 2010).
`Similarly, this Court has twice previously recognized that Plaintiffs’ counsel CFS has
`attorneys not only with specialized knowledge in environmental litigation, but also expertise in the
`specific subject matter of this case, namely genetically engineered organisms, and their
`environmental risks. See, e.g., Geertson Seed Farms v. Johanns, No. C 06-01075 CRB, 2011 WL
`5403291, at *8–9 (N.D. Cal. Nov. 8, 2011) (stating that CFS attorneys have specialized skills and
`knowledge in environmental litigation and awarding fees at a specialized rate); Ctr. for Food Safety
`v. Vilsack, No. C-08-00484 JSW (EDL), 2011 WL 6259891, at *1, *10–17 (N.D. Cal. Oct. 13,
`2011), report and recommendation adopted, 2011 WL 6259683 (N.D. Cal. Dec. 15, 2011) (in a co-
`counsel arrangement substantially similar to this case, both CFS and Earthjustice attorneys qualified
`for enhanced rates for specialized skill and knowledge).
`The Ninth Circuit has identified three factors to be considered in awarding a fee
`enhancement under EAJA: (1) the attorney must possess some distinctive knowledge and skills
`developed through a practice specialty; (2) those distinctive skills must be needed in the litigation;
`and (3) those skills must not be available elsewhere at the statutory rate. Love, 924 F.2d at 1496;
`Pollinator Stewardship Council v. EPA, No. 13-72346, 2017 WL 3096105, at *2–7 (9th Cir. June
`27, 2017). The rate that is adequate to attract competent counsel for services requiring distinctive
`knowledge or specialized skill is the prevailing market rate in the forum where the court sits, here
`the Northern District of California. Pollinator Stewardship Council, 2017 WL 3096105, at *6.
`Here, a fee enhancement aligned to the prevailing market rate of the forum court is fully
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`appropriate. Plaintiffs’ counsel all have distinctive knowledge and skills in environmental litigation.
`Each of them has extensive experience litigating on behalf of the public interest, specifically
`applying the core environmental laws at issue in this case (NEPA and the ESA) as well as other
`federal environmental statutes governing wildlife and environmental protection. van Saun Decl. ¶¶
`3-12, 38-47; Mashuda Decl. ¶¶ 6-11; Hardy Decl. ¶¶ 6-8; Kimbrell Decl. ¶¶ 4-21. They also have
`expertise with respect to issues of law and procedure under the APA, and the interplay between
`environmental and administrative law. Id. Finally, along with others in their organizations, they
`have collectively been engaged for more than a decade in advocacy to ensure that genetically
`engineered salmon do not adversely affect the environment and came to this case with deep
`knowledge of the relevant science and FDA’s decision-making process. van Saun Decl. ¶¶ 8-12;
`Mashuda Decl. ¶ 12; Kimbrell Decl. ¶¶ 9-13, 28-31, & 36.
`Steve Mashuda is the Managing Attorney for the Oceans Program at Earthjustice. In his 24
`years in environmental litigation, he has developed expertise with a wide variety of environmental
`statutes, includ