Black Hills Clean Water All. v. U.S. Forest Serv., No. 20-5034, 2024 WL 2060555 (D.S.D. May 8, 2024) (Piersol, J.)

Black Hills Clean Water All. v. U.S. Forest Serv., No. 20-5034, 2024 WL 2060555 (D.S.D. May 8, 2024) (Piersol, J.)

Re:  Requests for records concerning exploratory gold drilling

Disposition:  Awarding plaintiff $208,462.39 in attorney fees

• Attorney Fees, Calculations:  The court relates that “[o]n February 14, 2024, this Court granted Plaintiff[’s] motion for attorney fees after finding that it was both eligible for and entitled to attorney fees.”  “Further briefing was ordered to assist the Court in determining the amount of attorney fees to award.”  “The briefing has been completed.”  “This Opinion solely concerns what constitutes a reasonable attorney fee award in this case.”
  
  The court relates that “[plaintiff] is represented by three lawyers in this case:  [two out-of-district attorneys] and [one] local counsel . . . .”  “[Plaintiff[ acknowledges that a reasonable hourly rate usually is based on the prevailing market rates in the relevant community.”  “However, [plaintiff] argues that it should not be limited to the lower local rates.”  The court finds that “[a]ll of the declarations submitted by [plaintiff] indicate that this FOIA litigation involving environmental issues on federal public lands, and the National Forest System in particular, benefitted from having lawyers with the knowledge and experience like that of [the two out-of-district attorneys].”  “[T]here is no showing that there are any comparable lawyers practicing in South Dakota who would have been willing and fully able to pursue a case such as this, and in addition representing for no fee except for the possibility of recovery under the FOIA if the complainant substantially prevails.”  “Even if willing, there is really no good substitute for experience and expertise in FOIA cases and mining law.”  “Furthermore, the Court believes this type of FOIA action is not one typically filed in South Dakota but rather is brought in D.C.”  “The declarations submitted by [plaintiff] show that South Dakota was [plaintiff’s] desired forum for this litigation.”  “Had the lawsuit been filed in D.C., the Fitzpatrick Matrix rates most likely would have applied.”  “There is much public attention in South Dakota on these mining in public lands issues.”  “Good and prompt public access to all properly available information is essential.”  “It is in the public interest that litigation, when made necessary by a denial of public access, be brought and progress in South Dakota rather than Washington, D.C.”  “Choice of forum should not be driven to Washington D.C. away from the place of local impact and interest.”  “For all of these reasons, [plaintiff] has justified hourly rates for [the two out-of-district attorneys] that exceed South Dakota market rates.”  “The Court will utilize the Fitzpatrick Matrix of 2019, when representation was undertaken, as a guide, but it will reduce the hourly rates and not include the increases after 2019 to the Matrix.”  “The reductions are not so great as to discourage filing in local forums.”  “Also, as has been observed, the local rates cited are not the same sort of rates as those requested.”  “The Court is reducing the 2019 Fitzpatrick Matrix by 10%.”  “[Plaintiff] had initially volunteered a 10% reduction before the Court ruled that no attorney fees would be awarded in [a] second and related case . . . .”  “Based on the declarations submitted in this case, the quality and quantity of the experience out-of-state counsel has in similar cases with similar clients, together with the Court’s own knowledge and experience, the Court concludes that a reasonable hourly rate for [one out-of-state] attorney . . . is $658 and for [the other out-of-state] attorney . . . is $645.”  “By the same token, the reasonable hourly rate for attorney [an attorney who provided expert testimony in support of [plaintiff’s] request for attorney fees] is $697 as his services were actually rendered in Washington, D.C.”  “[Plaintiff] requests an hourly rate of $400 for [local counsel] and the Court finds that rate appropriate for a lawyer with [this attorney’s] background and experience.”
  
  “The Court has reviewed all of the billing entries and finds that most of the time for which recovery is sought is reasonable.”  “The time entries are clear, specific, and represent an appropriate use of each lawyer’s time on the merits of this case.”  “The conferences between the lawyers relating to the case are not excessive in their frequency or length, and there is no indication of inefficiency or duplication of services.”  “The Court recognizes the value in the lawyers collaborating on this case, especially when they had no assistance from law clerks or paralegals, and they faced the full force of the government’s resources on the opposing side.”  “Defendants challenge payment for time spent reviewing the agency’s responsive documents.”  “In some cases, courts have granted fees for time spent reviewing responsive documents in FOIA cases, such as in the present case where document review was necessary to evaluate the sufficiency of production or to challenge withholdings.”  “The time devoted by the lawyers to this task will not be deducted.”  “Defendants also dispute the charges in the amount of $12,058.10 for 17.5 hours that [plaintiff’s fee expert] spent on his expert opinion regarding the reasonableness of the attorney fees.”  “[Plaintiff’s fee expert’s] time includes hours spent on [a second, related case], which are not compensable.”  “Thus, Defendants will be required to pay for only half of [plaintiff’s fee expert’s] time . . . .”  “Finally, Defendants argue that the amount requested by [plaintiff] for its lawyers’ work on seeking attorney fees is exorbitant.”  “The amount requested by [plaintiff] for the ‘fees on fees’ phase gives the Court pause.”  “The Court does not question that the time was spent.”  “The question is whether the time was reasonably spent.”  “Time reasonably spent bringing a fee application generally is compensable where attorney fees are authorized by statute, as long as it is not excessive.”  “The Court concludes that 75.9 hours spent on the initial fee petition by attorneys [the two out-of-district attorneys and plaintiff’s fee expert], and 32.2 hours spent on the supplemental reply brief by [one of the out-of-district attorneys], are excessive.”  “The Court already has cut [plaintiff’s fee expert’s] time in half to 8.75 hours due to part of the work being done for [a second, related case].”  “[The two out-of-district attorneys’] time on the fee petition also will be reduced by half.”