Endangered Species Law & Policy

On July 1, 2013, the United States District Court for the Northern District of California issued an order (pdf) granting, in part, Plaintiffs’ motion for attorneys fees in Wild Equity Institute v. City and County of San Francisco, N.D. Cal. Case No. C 11-958. In the order, the court awarded plaintiffs just 25 percent of the fees requested. The court had previously dismissed the case as moot, which we reported here.

Plaintiffs initiated the lawsuit in an effort to require the City to obtain an incidental take permit under section 10 of the Endangered Species Act (ESA) for the operation of Sharp Park golf course. After the court denied Plaintiffs' motion for preliminary injunctive relief and Plaintiffs' subsequent motion for summary judgment, it dismissed the lawsuit as moot due to the fact that the Fish and Wildlife Service issued a biological opinion under section 7 of the ESA.  Plaintiffs both appealed from the order dismissing the action and sought fees and costs based on the contention they achieved their litigation objectives.

The court found an award of attorneys’ fees and costs to be appropriate under the so-called catalyst theory because, in its view, there was a causal relationship between the ultimate outcome and the lawsuit, and as such an award of some fees was required by law. At the same time, the court noted that plaintiffs did not prevail on a single substantive motion before the court, and that the grossly inefficient allocation of resources by plaintiffs’ counsel seems unwarranted by this simple ESA action. The court went on to state that little seems to have been gained by plaintiffs, and plaintiffs do not seem satisfied with the outcome of the suit. These apparently are among the factors the court took into account when it reduced the fee award by 75 percent in relation to the amount requested by Plaintiffs.

Nossaman serves as outside counsel to the City and County of San Francisco in the matter.