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Government opposes 'prodigious' claim

Published on February 28, 2013 3:01AM

Last changed on March 28, 2013 7:09AM

Environmental group seeks payout of $1.4 million


Capital Press

The federal government is opposing an environmental group's request for nearly $1.4 million in attorney fees stemming from a lawsuit over grazing in Eastern Oregon.

The request is "prodigious" and "excessive" because the environmentalists have exaggerated their victories and inflated the amount of time they spent on the lawsuit, according to the government.

The Oregon Natural Desert Association challenged cattle grazing in the Malheur National Forest, claiming the practice was harming threatened steelhead.

Last year, ONDA reached a settlement with the U.S. Forest Service in which the agency admitted the group won several points of law during nearly a decade of litigation.

The group is now seeking about $1.4 million in compensation under federal laws that allow plaintiffs to recover their costs when they succeed in certain types of lawsuits against the government.

The case repeatedly demonstrated that federal oversight of grazing violated the Endangered Species Act, the group said.

ONDA won three injunctions against grazing that resulted "in unprecedented protection for native steelhead," it said in a court document.

The group claims it has "achieved significant success in this case" and has "documented that the amount requested is reasonable" with appropriate time and expense records.

However, the government argues that the environmentalists' triumph was far more humble.

There is a "yawning chasm" between what ONDA sought to achieve and what it actually accomplished in the lawsuit, the government said.

While the group asked for a "complete shutdown of grazing" across much of the national forest, it only obtained "temporary injunctive relief barring grazing on a very small fraction of such allotments" and some additional protections for fish in other areas, the government said.

ONDA should have substantially reduced the amount of money it sought in light of the limited successes, according to the government.

The "excessive" number of hours billed by ONDA's attorney, David Becker, is also much larger than what would "seem reasonable for an experienced litigator," the government said.

The government asked the court not to let Becker "have it both ways" by billing a high number of hours while seeking a premium rate as an expert -- an experienced environmental attorney would not need as much time to compete such tasks.

According to a litigation expert with the Forest Service, ONDA also wants to bill the government at premium rates for "work that does not require specific environmental expertise," like scheduling.

For example, Becker seeks $315-350 per hour for duties for which attorneys usually receive about $170-185 per hour under federal law, the government said.

Brent Fenty, ONDA's executive director, said it's not unique for the government to make such allegations in disagreements about attorney fees and costs.

The group is billing for far fewer hours than it could have and its legal victories were clear cut, he said. "We clearly disagree with the government on this."

The litigation was prolonged because the government refused to acknowledge problems with its on-the-ground supervision of grazing, Fenty said. "It's unfortunate this case had to go on as long as it did."

Ranchers who were involved in the litigation have already settled their claims for attorney fees with the government.

Last year, the government agreed to pay the ranchers $120,000 in attorney fees and costs.

A judge agreed that the federal government should have included them in the consultation process that determined how grazing affected protected species.


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