UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Conservation Law Foundation, Inc.

v. Case No. 1: 18-cv-00996-PB Opinion No.

Scott Mason, Executive Director, New Hampshire Fish and Game Department, et al.

MEMORANDUM AND ORDER

The Conservation Law Foundation (“CLF”), a non-profit environmental

advocacy organization, brought this citizen suit for injunctive and declaratory

relief under Section 505 of the Clean Water Act (“CWA”) against various

state defendants. The complaint alleged that the Powder Mill State Fish

Hatchery (“the Facility”), which is owned by the state and operated by the

defendants, has been discharging pollutants into the Merrymeeting River in

violation of the Facility’s National Pollutant Discharge Elimination System

(“NPDES”) permit. The U.S. Environmental Protection Agency (“EPA”)

eventually intervened in the action, and the parties agreed to the entry of a

consent decree resolving the plaintiffs’ claims. After I approved the consent

decree, CLF moved for attorney’s fees. For the following reasons, the motion

is granted in part and denied in part. I. BACKGROUND

CLF filed this citizen suit under Section 505 of the CWA on October 31,

2018, against the New Hampshire Fish & Game Department and its

Executive Director, as well as the New Hampshire Fish & Game Commission

and its eleven commissioners. CLF alleged that the Facility was discharging

various pollutants into the Merrymeeting River, including phosphorus,

formaldehyde, and acidic wastewater, in violation of Section 301(a) of the

CWA,

(a), and the Facility’s 2011 NPDES Permit (“2011

Permit”). The complaint asserted two types of ongoing CWA violations: (1)

“Outfall Discharges,” based on current and anticipated releases of

phosphorus and other pollutants directly from the Facility’s two outfalls, and

(2) “Sediment Discharges,” as a result of past releases of phosphorus by the

Facility that settled into sediments at the bottom of the river and continue to

leach into the river. The complaint requested a declaratory judgment,

injunctive relief, civil penalties, and an award of attorney’s fees. Following a

motion to dismiss, CLF voluntarily dismissed the two state entities from the

action and disavowed any request for civil penalties on Eleventh Amendment

grounds. The rest of the complaint survived the defendants’ attempts at

dismissal.

Following extensive fact and expert discovery, the parties filed cross-

motions for summary judgment. I granted summary judgment to the

2 defendants on CLF’s Sediment Discharge claims on the ground that they

sought retrospective relief barred by the Eleventh Amendment. See CLF, Inc.

v. N.H. Fish & Game Dep’t,

,

, at *11

(D.N.H. Aug. 27, 2020). With respect to the Outfall Discharges, I granted

summary judgment to the defendants on CLF’s claim that the Facility was

exceeding the 2011 Permit’s formaldehyde limit, and I granted summary

judgment to CLF on the claim that the defendants were violating the

Permit’s pH limit. Id. at *13-14. I denied both parties’ motions with respect to

the remaining Outfall Discharge claims, which were principally focused on

releases of phosphorus in violation of the 2011 Permit’s narrative effluent

limits and state water quality standards. Id. at *12, *14-15.

A few months later, the 2011 Permit was superseded by a new NPDES

permit that took effect on January 1, 2021 (“2021 Permit”). The 2021 Permit

imposed numeric limits on phosphorus discharges and specified that those

limits were a “translation” of the 2011 Permit’s narrative limits into

quantitative terms. See Doc. No. 90-2 at 97. CLF subsequently amended its

complaint, restating its claims with reference to the 2021 Permit, and moved

for partial summary judgment with respect to violations of the numeric

phosphorus effluent limits. Meanwhile, the defendants moved to dismiss

those same claims for lack of notice.

3 In April 2021, I denied the defendants’ partial motion to dismiss and

scheduled a status conference with the parties and representatives from EPA

to discuss EPA’s willingness to intervene and establish a transition schedule

for the Facility to come into compliance with the 2021 Permit. Thereafter, the

defendants, CLF, and EPA engaged in a year-long negotiation. EPA

eventually joined the action as a plaintiff and intervenor, and all three

parties executed a consent decree and submitted it for court approval. After

an opportunity for public comment, I issued final judgment in November

2022, in the form of an order entering the consent decree.

The consent decree requires the defendants to achieve compliance with

the 2021 Permit and the CWA, to undertake interim measures until full

compliance can be achieved, and to assess options to remediate the pollution

caused by Sediment Discharges. See Doc. No. 130. Specifically, the

defendants must construct a wastewater treatment system at the Facility by

December 31, 2025, to achieve compliance with the 2021 Permit’s effluent

limitations. Id. at 13-15. In the interim, the defendants must take measures

to improve their waste collection and disposal practices and increase cleaning

and maintenance. Id. at 8-13. The defendants are also required to address the

buildup of phosphorus-loaded sediment by performing a Merrymeeting River

Phosphorus Assessment and a Remediation Options Study to assess the

impacts of the phosphorus pollution and any remediation options. Id. at 18-

4 24. Violations of the consent decree automatically trigger a stipulated penalty

starting at $1,000 per day for violations of its compliance or remediation

requirements and $750 per day for violations of its reporting requirements.

Id. at 27-31.

After the entry of the consent decree, CLF moved for a full award of

attorney’s fees and costs. The requested attorney’s fees amount to $538,774,

reflecting 2,065.3 hours of work performed by ten CLF attorneys and other

staff during the four years of litigation. In addition, CLF seeks an award of

its expert fees ($33,563.28), deposition costs ($2,821.19), and other litigation

costs ($1,081.52). The defendants object to the motion.

II. STANDARD OF REVIEW

Under the citizen suit provision of the CWA, a court “may award costs

of litigation (including reasonable attorney and expert witness fees) to any

prevailing or substantially prevailing party, whenever the court determines

such award is appropriate.”

(d). Because this form of relief is

not mandatory, “the trial court’s discretion in respect to fee awards is

extremely broad.” Perez-Sosa v. Garland,

(1st Cir. 2022)

(cleaned up).

To be eligible for an award of fees and costs, the movant must be a

“prevailing” or “substantially prevailing” party, meaning a party who has

“succeed[ed] on any significant issue in litigation which achieves some of the

5 benefit the parties sought in bringing suit.” Hensley v. Eckerhart,

(1983) (cleaned up); see

at 433 n.7 (construing “prevailing party”

under

but explaining that “[t]he standards set forth in this

opinion are generally applicable in all cases in which Congress has

authorized an award of fees to a ‘prevailing party’”). “The party’s success

cannot be a hollow victory; it must materially alter the litigants’ legal

relationship by modifying one party’s behavior in a way that directly benefits

the other.” Maine Sch. Admin. Dist. No. 35 v. Mr. R.,

, 14 (1st Cir.

2003).

The prevailing party has the burden of proving the reasonableness of

the fees it seeks to recover. Torres-Rivera v. O’Neill-Cancel,

(1st Cir. 2008). In this circuit, fee awards are commonly calculated using the

lodestar method. Perez-Sosa,

. “The lodestar amount equals

the number of hours reasonably expended on the litigation multiplied by a

reasonable hourly rate.” Efron v. Mora Dev. Corp.,

(1st Cir.

2022) (cleaned up). Calculating the lodestar is a two-step process. Perez-Sosa,

. At step one, “the court must calculate the number of hours

reasonably expended by the attorneys for the prevailing party, excluding

those hours that are excessive, redundant, or otherwise unnecessary.”

(cleaned up). Step two involves deriving “a reasonable hourly rate or rates —

a determination that is often benchmarked to the prevailing rates in the

6 community for lawyers of like qualifications, experience, and competence.”

(cleaned up). The court then multiplies the resulting figures to arrive at the

lodestar amount.

After the lodestar is calculated, the court may adjust the fee upward or

downward based on the so-called Hensley factors, with the greatest weight

assigned to the “results obtained” in litigation. Joyce v. Town of Dennis,

(1st Cir. 2013). This factor takes into account the plaintiff’s

“claim-by-claim success, the relief obtained, and the societal importance of

the right vindicated.” Burke v. McDonald,

, 65 n.11 (1st Cir.

2009).

III. ANALYSIS

CLF argues that it is entitled to a full award of its attorney’s fees and

costs because (1) it is a prevailing party by virtue of the consent decree and

the entry of summary judgment in its favor on the pH claim, (2) the award

should not be reduced to account for work on the claims on which the

defendants prevailed at summary judgment because the consent decree

provided relief for those claims, and those claims are interrelated with CLF’s

successful claims, and (3) its hours and rates are otherwise reasonable and

well-documented. The defendants challenge, to some extent, all three

arguments. They first contend that CLF is not a prevailing party because it

was EPA’s issuance of the 2021 Permit and its intervention in the action, not

7 CLF’s litigation, that resulted in the consent decree. In the alternative, the

defendants contend that CLF’s fees associated with its unsuccessful claims

should be excluded from the award, and that the award should be further

reduced for various inadequacies and excessive fees. I address these

arguments in turn.

A. Prevailing Party

It is well-established that a party can prevail for purposes of a fee-

shifting statute by obtaining relief through a consent decree. See Farrar v.

Hobby,

(1992); Maher v. Gagne,

(1980). “Although a consent decree does not always include an admission of

liability by the defendant, it nonetheless is a court-ordered change in the

legal relationship between the plaintiff and the defendant.” Buckhannon Bd.

& Care Home, Inc. v. W. Va. Dep’t of Health & Hum. Res.,

(2001) (cleaned up). Here, the consent decree provides relief on at least some

of CLF’s outstanding claims against the defendants and in ways that have

changed the parties’ legal relationship. Indeed, the defendants concede that

CLF “is arguably technically a prevailing party” as a signatory to the consent

decree. See Doc. No. 132-1 at 10. They argue, however, that I should deny

CLF prevailing party status because it was EPA’s issuance of the 2021

Permit, rather than CLF’s efforts in this case, that led to the consent decree.

That argument fails to persuade.

8 While it is true that the 2021 Permit would have issued irrespective of

CLF’s litigation, I cannot say the same about the consent decree. CLF

actively participated in the negotiation of the consent decree and, based on its

zealous advocacy throughout this litigation, I have no doubt that CLF

meaningfully contributed to the development of the decree. The imprint of

CLF’s involvement is reflected in the fact that the consent decree creates new

rights and obligations beyond those mandated by the 2021 Permit. Most

significantly, violations of the consent decree automatically trigger a

stipulated penalty starting at $750 or $1,000 per day depending on the type

of violation, Doc. No. 130 at 29-30, whereas the 2021 Permit merely allows for

the possibility of an enforcement action for “[a]ny permit noncompliance,”

Doc. No. 90-2 at 24. Other requirements imposed only in the consent decree

include: (1) implementation of the Best Management Practices Plan, Doc. No.

130 at 8; (2) additional sampling and monitoring, id. at 11-13; (3) the

requirement that the defendants either cease discharge or complete

construction on the wastewater treatment system by December 31, 2025, id.

at 13-15; (4) fish production targets and pollutant action levels, with

exceedance consequences, id. at 10-11, 16-18; (5) study of the impacts of

accumulated sediments discharged by the Facility and remediation options,

id. at 18-24; and (6) quarterly and semi-annual consent decree compliance

reports, id. at 26-27. Therefore, the consent decree affords various forms of

9 judicially sanctioned relief with respect to CLF’s claims that the 2021 Permit

alone does not provide. Such relief is sufficient to show that CLF obtained the

necessary degree of success to be considered a prevailing party.

The consent decree has also “materially alter[ed] the litigants’ legal

relationship” in another way that directly benefits CLF. See Mr. R., 321 F.3d

at 14. “The parties to a consent decree . . . achieve a continuing basis of

jurisdiction to enforce the terms of the resolution of their case in the court

entering the order.” Aronov v. Napolitano,

(1st Cir. 2009)

(cleaned up). As a signatory to the consent decree, CLF can bring the

defendants before the court to enforce compliance with any of its provisions

without filing a new action. Therefore, I agree with CLF that it is a

prevailing party in this suit.

B. Reduction for Hours Spent on Unsuccessful Claims

The parties agree that CLF’s work performed after the issuance of the

2021 Permit related exclusively to its successful claims and thus should

factor into the lodestar calculation. The defendants likewise do not challenge

the reasonableness of CLF’s claimed hourly rates, and I agree that those

rates are reasonable and commensurate with the experience of its attorneys.

The parties disagree, however, on the compensability of CLF’s services

performed prior to the issuance of the 2021 Permit.

10 CLF maintains that it is entitled to a full award of attorney’s fees even

though I granted summary judgment to the defendants on a substantial

category of claims asserted in the complaint. CLF’s principal argument is

that the consent decree provides relief even for those claims that I found

legally deficient. In other words, CLF contends that all its clams were

ultimately successful notwithstanding its loss on summary judgment.

Alternatively, CLF maintains that its unsuccessful claims are so intertwined

with its successful claims that it would be difficult to segregate the hours on

a claim-by-claim basis. Neither argument carries the day.

CLF’s various claims for relief fell into two categories: Outfall

Discharge claims and Sediment Discharge claims. Except for its

formaldehyde claim, which I resolved at summary judgment in the

defendants’ favor, CLF achieved victory on its Outfall Discharge claims: it

prevailed on summary judgment on a lightly litigated claim involving the

Facility’s failure to comply with the 2011 Permit’s pH limit, and it obtained

relief for the remaining Outfall Discharge claims through the consent decree.

But CLF lost on summary judgment on the entirety of its Sediment

Discharge claims, which were a substantial part of the case until that point. I

concluded that, as a matter of law, relief for those claims was barred by the

Eleventh Amendment. See CLF,

, at *11. My legal

conclusion has not been challenged on appeal and thus remains the law of the

11 case. Cf. United States v. Wallace,

(1st Cir. 2009) (“Under

the law of the case doctrine, when a court decides upon a rule of law, that

decision should continue to govern the same issues in subsequent stages in

the same case.”) (cleaned up). That the consent decree includes some

measures that potentially may lead to remediation of Sediment Discharges in

the future, namely requiring the defendants to assess what could be done to

remedy the issue, does not mean that CLF was successful on those claims.

Irrespective of the consent decree’s measures aimed at potential remediation

of Sediment Discharges, 1 those claims remain legally deficient and thus

cannot qualify as anything but unsuccessful claims. Thus, I agree with the

defendants that CLF is not a prevailing party with respect to its Sediment

Discharge claims.

When a prevailing party litigates multiple distinct claims for relief but

achieves only a partial victory, fees associated with its unsuccessful claims

ordinarily must be excluded from the fee award. See Hensley,

; Burke,

. The rationale for the exclusion is that “work on

an unsuccessful claim cannot be deemed to have been expended in pursuit of

1 The consent decree does not require defendants to remediate Sediment Discharges, which was the relief that CLF sought. Instead, the consent decree leaves that remediation to EPA’s enforcement discretion, following an agreed upon study of downstream phosphorus releases and potential remediation options, including a no-action option.

12 the ultimate result achieved.” Hensley,

(cleaned up). Fees

may be awarded for services on the unsuccessful claims, however, if those

claims are interconnected with the successful claims. Id.; Burke,

. Claims are interconnected when they either rest on “a common core of

facts” or are “based on related legal theories.” Lipsett v. Blanco,

(1st Cir. 1992) (cleaned up). In such cases, the “lawsuit cannot be viewed

as a series of discrete claims” because “[m]uch of counsel’s time will be

devoted generally to the litigation as a whole, making it difficult to divide the

hours expended on a claim-by-claim basis.” Hensley,

. Only

when “the fee-seeker properly documents [its] claim and plausibly asserts

that the time cannot be allocated between successful and unsuccessful

claims” does the burden shift to the fee-target “to show a basis for

segregability.” Lipsett,

.

CLF’s contention that its successful and unsuccessful claims are

interrelated strains credulity. Apart from conclusory assertions that research

and investigation related to some claims benefited work on other claims, the

basis for CLF’s relatedness contention appears to be that all its claims “are

Clean Water Act claims factually connected to discharges from the Facility

and the conditions of the Merrymeeting River.” Doc. No. 135 at 9. As the

defendants point out, if that were sufficient, then all CWA claims that stem

13 from releases from the same facility would be interrelated for fee award

purposes. But that is not the law.

Contrary to CLF’s assertion, the Sediment Discharge claims and the

Outfall Discharge claims were based on different facts and legal theories. The

Outfall Discharge claims challenged the defendants’ present and anticipated

discharges from their outfalls. The evidence for those claims was relatively

straightforward: the Facility’s own data from its reports to EPA showed that

the Facility directly discharged hundreds of pounds of phosphorus per year

from its two outfalls. CLF,

, at *5. By contrast, the

Sediment Discharge claims were premised on the evidence that discharged

phosphorus settles into sediments at the bottom of the ponds downstream

from the Facility and is then rereleased into the water column through a

process called “internal loading” once “hypoxia or physical disturbance breaks

the chemical bonds holding it in place.” Id. at *6 (cleaned up). To prove those

claims, CLF retained an expert, Dr. Jack Rensel, to explain the science

behind the process of internal loading and to opine on the resulting impact on

the Merrymeeting River. See Doc. No. 75 at 11-13; Doc. No. 47-17. The

evidence for the two categories of claims, then, was not common.

Nor were CLF’s successful and unsuccessful claims based on similar

legal theories. The Outfall Discharge claims were based on “paradigmatic

point source discharges” prohibited by the CWA. CLF,

, at

14 *9. The relief sought under those claims was undoubtedly prospective and

therefore permissible under the Eleventh Amendment. See id. at *11. By

contrast, the relief CLF sought with respect to the Sediment Discharge

claims was an injunction requiring the defendants to remove or otherwise

remediate the phosphorus-laden sediments. Id. at *9. Because the Eleventh

Amendment bars retrospective relief against state defendants, CLF had the

burden to show that such an injunction would constitute prospective relief.

See id. At summary judgment, CLF responded with two novel legal

arguments to address that issue. They first argued that the sediments were

themselves “point sources” within the meaning of the CWA. I rejected that

argument as inconsistent with the plain language of the statute. See id. at

*10. Alternatively, CLF maintained that lingering effects of prior point

source discharges constitute a “continuing violation” until the effects of the

discharges have dissipated. Id. at *11. That theory likewise failed to clear the

Eleventh Amendment hurdle. Because the Sediment Discharge claims were

based solely on prior discharges through the Facility’s outfalls, I concluded

that an injunction to correct the lingering effects of such discharges is

necessarily retrospective. See id. Considering that there was no question that

the Outfall Discharge claims sought prospective relief, those successful

claims did not benefit from the substantial efforts CLF expended on

15 developing the legal theories that underpinned their unsuccessful Sediment

Discharge claims.

Because CLF has not persuaded me that the Sediment Discharge

claims were either “intertwined with, and contributed materially to, the

eventual success of” the Outfall Discharge claims, or that CLF has achieved

such “a smashing success” that it “should recover a fully compensatory fee,”

CLF is not entitled to a full award of attorney’s fees. See Trainor v. HEI

Hosp., LLC,

(1st Cir. 2012) (cleaned up).

Unfortunately, CLF’s fee petition does not adequately allocate time

between its successful and unsuccessful claims. Ordinarily, a fee seeker

should provide “an affidavit explaining with sufficient detail how the line

item entries—or even categories of line item entries—were related to the

meritorious claim.” Burke,

. As was the case in Burke, CLF’s

time records provide “little, if any, basis for determining what work reflected

in them was done to develop what claims.” See

The vast majority of the

time entries are ambiguous about the exact scope of the work performed, with

typical entries such as “case strategy emails,” “drafting” and “editing”

pleadings or discovery requests, and “document review” making it impossible

to determine the time expended on a claim-by-claim basis. See Doc. No. 131-

8. Indeed, the word “sediment” appears only seven times and “Eleventh

16 Amendment” only three times in the 38 pages of billing records, which surely

underestimates the time spent on the Sediment Discharge claims. 2

Since CLF has not adequately allocated time between its successful and

unsuccessful claims, the defendants argue that “an obvious demarcation

point” is the filing of the second amended complaint (“SAC”) that came on the

heels of the 2021 Permit. See Doc. No. 132-1 at 12. According to the

defendants, with a limited exception for the pH claim, CLF should not be

compensated for any work performed before the 2021 Permit issued. That

work, the argument goes, did not contribute to CLF’s ultimate success

because its pre-SAC claims that survived summary judgment were based on

the narrative provisions of the 2011 Permit, which were displaced by the

numeric phosphorus effluent limits in the 2021 Permit.

Although attractive in its simplicity, the defendants’ proposal fails to

appreciate the interrelatedness of CLF’s Outfall Discharge claims under the

two permits. CLF defended the core of its Outfall Discharge claims through

summary judgment, which at that time focused on the narrative limits and

2 CLF’s only attempt at a time allocation involves an “estimate[]” of “the time spent briefing and developing legal arguments for each claim based on the number of pages devoted to each issue” in its pleadings. See Doc. 135 at 10; Doc. No. 135-10. Based on that estimate, 18.4% of CLF’s pleadings concerned the unsuccessful claims. See Doc. No. 135-10. Setting aside the adequacy of this method of allocation, CLF has not proposed a time allocation for other tasks, which consumed more time than the briefing.

17 state water quality standards. When EPA imposed a numeric effluent limit in

the 2021 Permit, it described that limit as a “translation” into quantitative

terms of the prior permit’s phosphorus-related narrative standards. See Doc.

No. 90-2 at 97. Thus, while differing in form, the 2021 Permit’s numeric limit

for phosphorus is substantively similar to the 2011 Permit’s phosphorus-

related narrative conditions. Stated differently, the pre-SAC and post-SAC

claims were based on a common core of facts and related legal theories. As

such, I cannot say that CLF’s pre-SAC efforts expended on the surviving

Outfall Discharge claims should be excluded from the fee award.

Because CLF has not delineated its pre-SAC attorney’s fees on a claim-

by-claim basis, I must resort to a less exacting approach. The First Circuit’s

guidance when addressing analogous circumstances in Burke is instructive.

Faced with a similarly difficult task where the fee seeker did not adequately

meet his burden to segregate his hours between successful and unsuccessful

claims, the First Circuit agreed that the district judge acted within the

bounds of his discretion in applying a “global reduction” based on the district

judge’s “proportionate estimate of the time spent on the meritorious claim.”

See Burke,

. The First Circuit noted that both the Supreme

Court and its own precedent were consistent with the district court’s

approach. See

Specifically, the Supreme Court in Hensley acknowledged

that “no precise rule or formula” existed and that it was up to the district

18 court to either “attempt to identify specific hours that should be eliminated”

or else “simply reduce the award to account for the limited success.”

. The court in Burke also cited precedent “permitting district courts,

when computing the lodestar amount, to ‘discount or disallow’ hours when

time records are ‘too generic and, thus, insufficient as a practical matter to

permit a court to answer questions about excessiveness, redundancy, and the

like.’”

(quoting Torres-Rivera,

).

Like the district court in Burke, I conclude that the best approach

available to me in these circumstances is to apply a global reduction. Having

presided over this case for over four years and ruled on multiple rounds of

substantive motions, I estimate that 30% of the pre-SAC work was of little to

no benefit to CLF’s ability to succeed on its surviving Outfall Discharge

claims. As I noted earlier, CLF expended significant work on the novel

theories and the evidence that supported only its unsuccessful Sediment

Discharge claims. In addition to the substantial effort that went into legal

research, CLF needed an expert witness to explain the science underlying

those claims. Indeed, much of Dr. Rensel’s expert report focused on evidence

that benefited only the Sediment Discharge claims and ultimately proved

fruitless. See Doc. No. 47-17. Accordingly, based on my estimate of the hours

spent on the unsuccessful claims, I will recognize only 70% of the pre-SAC

hours in the lodestar calculation.

19 C. Other Reductions in Hours

The defendants argue that there should be a further reduction in hours

when calculating the lodestar to exclude certain hours as not adequately

documented or unreasonably expended.

First, the defendants request a global 10% reduction of the hours to

address non-contemporaneous recordkeeping. The defendants point out that

CLF attorneys’ affidavits show that they used a combination of

contemporaneous time records and post-event reconstruction based on their

subsequent review of emails and docket entries. The First Circuit requires fee

petitions to be based on contemporaneous time records and has instructed

lower courts that, absent extraordinary circumstances, failure to keep

contemporaneous time records should result in a “substantial reduction in

any award.” Grendel’s Den, Inc. v. Larkin,

(1st Cir. 1984).

Because some unidentified time records were retrospectively generated and

CLF has not identified exceptional circumstances for its failure to prepare

only contemporaneous records, I agree with the defendants that the

appropriate resolution is to reduce the hours globally by 10%.

Relatedly, the defendants argue that a reduction for excessive billing is

necessary because CLF attorneys spent too much time preparing the fee

petition. CLF attorneys spent more time preparing the fee petition (nearly

160 hours) than they did negotiating settlement and the consent decree

20 (nearly 95 hours). Especially considering that a significant amount of the

time billed for the fee petition was likely wasted on reconstructing

timekeeping records that should have been contemporaneously maintained, I

conclude that the hours worked on the fee petition were excessive. As such, I

will grant the defendants’ request for a 50% reduction of the hours spent on

preparing the fee petition. 3

The defendants next seek a reduction to the hours billed by Attorney

Kendall while she was a law student intern. The bulk of her 111 hours was

spent on researching and preparing the notice of intent letter that began this

case. CLF counters that it excluded hours spent by several other interns but

included then-Intern Kendall’s hours because she had prior relevant

experience and made significant contributions. Although I do not doubt that

that is the case, I agree with the defendants that a trained attorney would

have completed the task in substantially less time. Accordingly, Intern

Kendall’s hours will be reduced by 50%.

3 The defendants also argue that excessive billing occurred because too many CLF attorneys attended hearings and conferences or spent too much time conferencing amongst themselves. Having examined the records in question, I disagree that they show excessive billing. Further, I take CLF attorneys on their word as officers of the court that they made efforts to exclude conferencing hours and included only those that were reasonable. The defendants’ request for a reduction for purported administrative and clerical tasks fares no better. Having reviewed those entries, I disagree that they necessarily reflect purely administrative work that should be excluded.

21 Lastly, the defendants seek a reduction for CLF attorneys’ travel time.

Several CLF attorneys billed for travel time without indicating that the

travel time was spent working on the case. “If the attorney is merely

traveling and not working on the case, however, courts in this circuit

normally reduce the rate charged by fifty percent.” Conservation L. Found.,

Inc. v. Patrick,

(D. Mass. 2011). Thus, I will reduce

by 50% the rate charged for traveling.

As summarized in the table below, the various reductions I have

allowed in calculating the lodestar yield a lodestar figure of $333,176.79.

Because neither party has argued that an upward or a downward adjustment

to the lodestar is warranted in this case based on the Hensley factors, I

conclude that CLF is entitled to the lodestar amount. 4

Description Fee Amount Pre-SAC attorney’s fees $429,578.00 Pre-SAC attorney’s fees after 30% reduction for $300,704.60 unsuccessful claims Post-SAC attorney’s fees $109,196.00 Combined pre- and post-SAC lodestar $409,900.60 Combined lodestar after 10% reduction for non- $368,910.54 contemporaneous recordkeeping Combined lodestar after reductions for excessive hours $333,176.79

4 The defendants recite the Hensley factors in their surreply brief in support of their argument that all pre-SAC claims should be deemed unsuccessful, but they do not present a developed argument on how I should evaluate those factors as a distinct basis for a downward fee adjustment.

22 D. Expert Fees and Other Costs

In addition to its attorney’s fees, CLF seeks an award of expert costs

($33,563.28), deposition costs ($2,821.19), and other litigation cost

($1,081.52). The defendants argue that those costs should be disallowed

because they are all associated with CLF’s pre-SAC claims. Because I

rejected the defendants’ argument that all pre-SAC claims are not

compensable, I likewise reject their argument that those costs should be

excluded altogether. However, because issues related solely to the Sediment

Discharge claims predominated Dr. Rensel’s expert report, I will deduct 70%

of his expert fees to account for the unsuccessful claims. The total amount for

expert and other costs owed to CLF is $23,195.93.

IV. CONCLUSION

For the foregoing reasons, I grant CLF’s motion for attorney’s fees and

costs (Doc. No. 131) in part and deny it in part. CLF is entitled to $333,176.79

in attorney’s fees and $23,195.93 in costs.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

April 26, 2023

cc: Counsel of record

23