## Facts

- The North Pacific (Pacific) right whale was listed under the Endangered Species Act (ESA) in 1971 and was described as one of the most endangered mammals in the world.
- Decades after listing, the National Marine Fisheries Service (NMFS) still had not designated any critical habitat in the Pacific Ocean for the right whale.
- The Center for Biological Diversity, joined by Douglas L. Bevington and Diane Ladouceur, brought an ESA citizen suit seeking declaratory and injunctive relief to address NMFS’s failure to make a critical-habitat designation.
- On September 14, 2005, the district court (N.D. Cal., Alsup, J.) issued an order granting relief on the underlying delay claim and finding plaintiffs entitled to seek attorneys’ fees and costs under ESA § 11(g)(4). That order also set out a multi-step procedure (paragraphs 2–15) for litigating the amount of fees and costs.
- After the fee-entitlement ruling, plaintiffs and federal defendants (Secretary of Commerce Donald L. Evans, NMFS, and Assistant Administrator William T. Hogarth, all in their official capacities) negotiated a settlement of the fee-and-cost amount rather than proceeding through the court’s fee-litigation schedule.
- The parties filed a stipulation and proposed order providing that defendants would pay $97,000.00 in full settlement of plaintiffs’ attorneys’ fees and costs incurred through the date of the stipulation, with no concession of law or fact by either side.
- The stipulation requested that the court vacate as moot paragraphs 2–15 of the September 14, 2005 order because the negotiated payment made further fee proceedings unnecessary.
- The stipulation also stated the settlement applied only to time and costs incurred before the stipulation date, preserved plaintiffs’ ability to seek later fees or costs, and reserved defendants’ right to oppose any future fee request.
- The parties further agreed defendants would submit the required paperwork to the Department of the Treasury funding authorities within ten business days after receiving the signed order.

## Issues

1. Should the court approve the parties’ stipulation settling plaintiffs’ ESA attorneys’ fees and costs for $97,000.00 through the stipulation date?
2. Should the court vacate as moot the fee-amount litigation procedure set out in paragraphs 2–15 of the court’s September 14, 2005 order?

## Decision

- The court approved and entered the parties’ stipulation and settlement regarding attorneys’ fees and costs.
- The court ordered federal defendants to pay plaintiffs $97,000.00 pursuant to ESA § 11(g) in full settlement of plaintiffs’ claim for attorneys’ fees and costs through the date the stipulation was filed.
- The court vacated as moot paragraphs 2–15 of the September 14, 2005 order because the stipulation resolved the fee-amount dispute and eliminated the need for the court-ordered fee-litigation procedure.

## Legal Principles

- ESA § 11(g)(4), 16 U.S.C. § 1540(g)(4), authorizes an award of reasonable attorneys’ fees and litigation costs in ESA citizen-suit cases when the award is appropriate.
- After a court determines a plaintiff is entitled to fees, the parties may resolve the amount by settlement; the court may enter an order adopting a stipulated fee-and-cost resolution.
- When a settlement removes any live dispute over fee-calculation steps previously ordered by the court, those steps may be set aside as moot.
- A stipulated fee-and-cost payment may be structured as a compromise that does not constitute an admission or concession on the merits by either side and may limit the settlement to fees and costs incurred up to a specified date while preserving arguments about any later requests.

## Conclusion

In this post-merits fee order, the Northern District of California entered the parties’ stipulated settlement awarding $97,000 in ESA attorneys’ fees and costs incurred through the stipulation date in litigation challenging NMFS’s long delay in designating critical habitat for the North Pacific right whale, and it vacated as moot the prior order’s paragraphs setting out further fee-amount litigation steps.


Center for Biological Diversity v. Evans, Case No.: C-04-4496-WHA (Sep. 28, 2005)