UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CENTER FOR BIOLOGICAL DIVERSITY, et al.,

Plaintiffs,

v. No. 20-cv-0146 (EGS) DAVID BERNHARDT, et al.,

Defendants,

MEMORANDUM OPINION

I. Introduction

Plaintiffs, Center for Biological Diversity and Healthy

Gulf, brought this action against David Bernhardt, in his

official capacity as Secretary of the United States Department

of the Interior, and the United States Fish and Wildlife Service

(the “Service”) pursuant to the citizen suit provisions of the

Endangered Species Act (“ESA”),

(g). Compl., ECF

No. 1 ¶ 1. 1 Plaintiffs sought declaratory and injunctive relief

for the Service’s failure to comply with ESA deadlines in

determining whether the Pascagoula Map Turtle and Pearl River

Map Turtle (together “the Map Turtles”) “warrant protection as

endangered or threatened under the [ESA].”

1 When citing electronic filings throughout this opinion, the Court cites to the ECF header page number, not the original page number of the filed document.

1 On July 2, 2020, the Court granted the Parties’ request to

approve the Stipulated Settlement Agreement, maintain

jurisdiction to enforce the Agreement, and dismiss the case. See

Minute Order (July 2, 2020). Pending before the Court is the

Plaintiffs’ Motion for Attorneys’ Fees and Costs. See Pls.’ Mot.

for Atty’s’ Fees & Costs (“Pls.’ Mot.”), ECF No. 18. For the

following reasons, the Court GRANTS Plaintiffs’ Motion for

Attorneys’ Fees and Costs.

II. Background

Plaintiffs are two non-profit conservation organizations

focused on the preservation of imperiled species and their

habitats. See Compl., ECF No. 1 ¶¶ 15-19. The ESA’s petition

process allows “any interested person [to] petition the Service

to list a species as threatened or endangered.” Decl. of Gina

Shultz (“Shultz Decl.”), ECF No. 19-1 ¶ 3. In April 2010,

Plaintiffs petitioned the Service seeking to have the Map

Turtles listed as endangered or threatened under the ESA. See

Compl., ECF No. 1 ¶ 5. After receiving Plaintiffs’ petition, the

Service issued a 90-day finding in accordance with

(b)(3)(A), concluding that listing the Map Turtles under the

ESA “may be warranted.” See Shultz Decl., ECF No. 19-1 ¶ 13.

Under the ESA, this finding required the Service to determine

whether the Map Turtles warranted listing as endangered or

2 threatened within twelve months of Plaintiffs’ petition.

(b)(3)(B).

Between 2007 and 2010, the Service received a substantial

number of petitions, resulting in a backlog of evaluations for

it to complete. See Shultz Decl., ECF No. 19-1 ¶ 5. The record

is silent as to any updates on the Services’ evaluation of the

Map Turtles between 2010, when it issued its 90-day finding, and

2015, when the Service enlisted the help of a species expert to

conduct Map Turtle surveys from 2015 to 2018.

, 13–14. In

2016, the Service created a “comprehensive National Listing

Workplan that priorities [its] listing workload based on the

needs of candidate and petitioned species.”

at ¶¶ 5–6; see

Methodology for Prioritizing Status Reviews and Accompanying 12-

Month Findings on Petitions for Listing under the Endangered

Species Act,

(July 27, 2016) (“Prioritization

Methodology”). The Service expected the surveys of the Map

Turtles to be completed in December 2019, and consequently

placed the Map Turtles on the Service’s Workplan for fiscal year

2021. See Shultz Decl., ECF No. 19-1 ¶ 13.

Pursuant to the ESA’s notice requirements, Plaintiffs sent

Defendants notices of intent to file suit on November 13, 2018

and October 4, 2019. See

; Ltr from E. Bennett to D.

Bernhardt & M. Everson Re: 60-Day Notice of Intent to Sue (Oct.

8, 2019), ECF No. 19-2; Ltr from J. Totoiu to R. Zinke, et al.

3 Re: 60-Day Notice of Intent to Sue (Nov. 13, 2018), ECF No. 19-

4. Following each notice, the Service responded to Plaintiffs

indicating its intent to complete the listing finding for the

Map Turtles by the end of the 2021 fiscal year. See Ltr from G.

Shultz to J. Totoiu Re: Reply to Oct. 4, 2019 Ltr (Dec. 3,

2019), ECF No. 19-3; Ltr from G. Shultz to J. Totoiu Re: Reply

to Nov. 13, 2018 Ltr (Feb. 13, 2019), ECF No. 19-5. Plaintiffs

filed suit on January 21, 2020 “to compel Defendants to complete

a ’12-month finding’ for the Pascagoula map turtle and Pearl

River map turtle by a date certain.” Pls.’ Mot., ECF No. 18 at

8.

On June 12, 2020, the Parties filed a Stipulated Settlement

Agreement requiring the Service to complete the listing

determination of the Map Turtles on or before October 29, 2021.

See Stipulated Settlement Agreement (the “Agreement”), ECF No.

15 at 2. On July 2, 2020, the Court entered an Order

incorporating the terms of the Agreement and permitting the

Court to maintain jurisdiction to enforce the Order and terms of

the Agreement. See Minute Order (July 2, 2020) (the “July 2,

2020 Order”). The Agreement allowed for Plaintiffs to seek

attorneys’ fees and costs.

Plaintiffs filed their Motion for Attorneys’ Fees and Costs

on October 2, 2020. See Pls.’ Mot., ECF No. 18. Defendants filed

their opposition on October 15, 2020, and Plaintiffs’ reply

4 brief was filed on October 23, 2020. See Defs.’ Resp. in Opp. to

Mot. for Fees (“Defs.’ Opp.”), ECF No. 19; Pls.’ Reply Mem.

Supporting Their Entitlement to Att’ys Fees & Costs (“Pls.’

Reply”), ECF No. 20. The Court granted the Parties’ Joint Motion

to Bifurcate the Issues of Entitlement to, and Amount of

Attorneys’ Fees and Costs. Minute Order (Jan. 14, 2021).

Therefore, the only issue before the Court is whether an award

of attorneys’ fees and costs is appropriate here.

III. Legal Standard

The ESA provides that a court “may award costs of

litigation (including reasonable attorney and expert witness

fees) to any party, whenever the court determines such award is

appropriate.”

(g)(4). An award of attorneys’

fees is “appropriate,” when the moving party has attained “some

success on the merits.” Ruckelshaus v. Sierra Club,

, 682 & n.1 (1983). 2 The “whenever appropriate” standard

utilized in the ESA also authorizes recovery “to so-called

catalyst parties who obtain, through settlement or otherwise,

substantial relief prior to adjudication on the merits.” Sierra

Club v. EPA,

(D.C. Cir. 2003). To award

attorneys’ fees and costs under the catalyst theory, the

2 The ESA attorneys’ fees provision does not contain the “prevailing party” language like other fee-shifting provisions; however, a prevailing party would clearly meet the requirement for achieving some success on the merits.

5 plaintiff must show: (1) “the defendant provided some of the

benefit sought by the lawsuit,” (2) the claim “was at least

colorable, not frivolous, unreasonable, or groundless,” and (3)

the suit “was a substantial or significant cause of defendant’s

action providing relief.

at 726–27.

IV. Analysis

As an initial matter, the Parties disagree as to whether

the catalyst theory’s three-thresholds must be met in this case.

Plaintiffs assert that the catalyst theory need not be applied

where the party seeking attorneys’ fees has obtained success on

the merits through court-ordered, judicially enforceable relief.

Pls.’ Reply, ECF No. 20 at 5. Defendants contend that even

though the Parties entered into a settlement agreement in this

case, Plaintiffs must still satisfy the catalyst theory’s three

threshold test to be entitled to fees. Defs.’ Opp., ECF No. 19

at 9.

The Court agrees with Plaintiffs that the catalyst theory

is a secondary way for a court to award attorneys fees, and a

court does not have to reach it when a party has obtained

success on the merits. The Supreme Court has specifically

distinguished between the catalyst theory of recovery and relief

on the merits, acknowledging that “the catalyst theory falls on

the other side of the line” from relief on the merits.

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health &

6 Hum. Res.,

(2001) (internal quotations

omitted). Moreover, the Court of Appeals for the District of

Columbia Circuit (“D.C. Circuit”) has explicitly stated that a

“judicial determination on the merits” would “make the catalyst

notion irrelevant.” Pub. Citizen Rsch. Grp. v. Young,

(D.C. Cir. 1990).

Further, the Defendants have not pointed to any cases where

the catalyst theory was applied to a case where the party moving

for fees obtained judicially enforceable relief on the merits.

In each of the cases applying the catalyst theory cited by the

Defendants, the substantive claims were dismissed before the

courts ever made any decisions on the merits. See, e.g.,

Conservation Force v. Salazar,

(D.D.C.

2010) (applying catalyst theory where claims were dismissed for

lack of subject matter jurisdiction and mootness); Friends of

Animals v. Salazar,

, 12–16 (D.D.C. 2009)

(applying catalyst theory where court dismissed plaintiff’s

substantive claims where the issues were moot because the

government already acted on the relief sought). The Court

concludes that success on the merits of a claim negates the

necessity for the catalyst theory.

Next, the Court must determine whether the July 2, 2020

Order and Agreement here is equivalent to success on the merits

to make an award of attorneys fees appropriate. Courts have

7 found that success on the merits includes both formal

adjudication by the court and consent decrees. See Buckhannon,

. Plaintiffs contend the Agreement is

“functionally identical to a consent decree since compliance

with it is enforceable by the Court.” Pls.’ Reply, ECF No. 20 at

5, n. 1. Defendants do not dispute that a consent decree would

be the type of relief warranting attorneys’ fees, but they do

not address whether the Agreement is equivalent to a consent

decree or otherwise constitutes success on the merits. See

Defs.’ Opp., ECF No. 19 at 9.

The Court agrees with the Plaintiffs that the Court’s July

2, 2020 Order incorporating the Agreement is sufficient for the

Court to appropriately award attorneys’ fees because, much like

a consent decree, the Agreement and Order alter the legal

relationship between the parties. A consent decree is “an

agreement that the parties desire and expect will be reflected

in, and enforceable as, a judicial decree that is subject to the

rules generally applicable to other judgments and decrees.” Cato

Inst. v. SEC,

, 95 (D.C. Cir. 2021). In Buckhannon,

the Supreme Court explained that a consent decree creates the

“material alteration of the legal relationship of the parties’

necessary to permit an award of attorney’s fees.”

; see also Carbonell v. INS,

, 888-89 (9th Cir.

2005) (awarding attorneys’ fees to plaintiff who obtained a

8 court order incorporating a voluntarily stipulated stay of

deportation). The July 2, 2020 Order to enforce the terms of the

Parties’ Agreement similarly altered the legal relationship of

the Parties in this case. The Order and Agreement provided the

Plaintiffs with legal recourse if the Defendants failed to abide

by the terms of the Agreement. See Minute Order (July 2, 2020).

Therefore, for the reasons above, the Court does not need to

reach the question of whether Plaintiffs’ suit was a catalyst in

bringing about the listing determination.

The Court concludes that the Order and Agreement here

constitute success on the merits. Therefore, the Court GRANTS

Plaintiffs’ Request for Attorneys’ Fees and Costs under

(g)(4).

V. Conclusion

For the foregoing reasons, the Court GRANTS Plaintiffs’

Motion for Attorneys’ Fees and Costs. An appropriate order

accompanies this Memorandum Opinion.

Signed: Emmet G. Sullivan United States District Judge July 15, 2024

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