Conservation Congress v. U.S. Forest Service ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CONSERVATION CONGRESS and No. 2:13-cv-00934-JAM-DB CITIZENS FOR BETTER FORESTRY, 10 Plaintiffs, 11 ORDER OVERRULING PLAINTIFF’S v. OBJECTIONS TO DEFENDANT’S 12 BILL OF COSTS AND GRANTING UNITED STATES FOREST SERVICE, DEFENDANT’S BILL OF COSTS 13 and UNITED STATES FISH AND WILDLIFE SERVICE, 14 Defendants. 15 16 This matter is before the Court on United States Forest 17 Service’s (“Defendant”) bill of costs. See Def.’s Bill of Costs 18 (“Bill”), ECF No. 93. Conservation Congress (“Plaintiff”) 19 objects to the bill. See Objections, ECF No. 94. Defendant 20 replied. See Reply, ECF No. 103. For the reasons set forth 21 below, the Court overrules Plaintiff’s objections to Defendant’s 22 bill of costs and grants Defendant’s bill of costs.1 23 I. BACKGROUND 24 On May 17, 2021, this Court granted summary judgment for the 25 Defendant and denied summary judgment for the Plaintiff. See 26 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for September 14, 2021. 1 Judgment, ECF No. 92. Defendant then submitted its bill of costs 2 on May 28, 2021, requesting $16,614.05. Bill at 1. This amount 3 represents the costs for scanning, hyperlinking, Bates-stamping, 4 and electronically producing the administrative record, which 5 totaled 19,193 pages. See Decl. of Jeffery Desalles, ECF No. 93- 6 1. Plaintiff filed objections to the bill on June 4, 2021. See 7 Objections. 8 II. OPINION 9 A. Legal Standard 10 Under Federal Rule of Civil Procedure 54(d)(1), “costs—other 11 than attorney’s fees—should be allowed to the prevailing party” 12 unless “a federal statute, these rules, or a court order provides 13 otherwise.” Fed. R. Civ. P. 54(d)(1). This rule creates a 14 presumption that costs will be taxed against the losing party, 15 but “vests in the district court discretion to refuse to award 16 costs” if the losing party shows why costs should not be awarded. 17 Ass’n of Mexican-Am. Educators v. State of California, 231 F.3d 18 572, 591-92 (9th Cir. 2000)(en banc). 19 A court may tax costs listed in 28 U.S.C. § 1920 (“§ 1920”), 20 including at § 1920(4): “[f]ees for exemplification and the costs 21 of making copies of any materials where the copies are 22 necessarily obtained for use in the case.” The “costs of 23 compiling the administrative record [] fall within the scope of 24 § 1920(4).” Conservation Cong. V. U.S. Forest Serv., No. 2:12- 25 cv-02800-TLN-CKD, 2014 WL 6612088 at *1 (E.D. Cal. Nov. 20, 26 2014). 27 If the court declines to award costs, it must “specify 28 reasons” for denying costs. Subscription Television, Inc. v. 1 Southern Cal. Theater Owners Ass’n, 576 F.2d 230, 234 (9th Cir. 2 1978). However, “[a court] need not specify reasons for its 3 decision to abide by the presumption and tax costs to the losing 4 party. Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th 5 Cir. 2003) (citing Ass’n of Mexican-Am. Educators, 231 F.3d at 6 592-93). The objecting party bears the burden of presenting 7 reasons “sufficiently persuasive to overcome the presumption in 8 favor of an award.” In re Online DVD-Rental Antitrust Litig., 9 779 F.3d 914, 932 (9th Cir. 2015). 10 B. Analysis 11 Plaintiff argues that costs should not be taxed for reasons 12 previously given by the Ninth Circuit: “(1) the substantial 13 public importance of the case, (2) the closeness and difficulty 14 of the issues in the case, (3) the chilling effect on future 15 similar actions, (4) the plaintiff's limited financial resources, 16 and (5) the economic disparity between the parties.” Escriba v. 17 Foster Poultry Farms, Inc., 743 F.3d 1236, 1247–48 (9th Cir. 18 2014) (internal citations and quotations omitted). Plaintiff 19 argues all five reasons are present in this case. Objection at 20 2. Defendant disputes every reason. Reply at 3-4. 21 Reviewing the record, the Court finds that the first and 22 second reasons weigh in favor of the Defendant, because, as this 23 Court previously noted, “the central issues in this case—the 24 Government’s review and approval of a timber project and the 25 impact of the project on the Northern Spotted Owl—are not new.” 26 Conservation Cong. V. U.S. Forest Serv., No. 2:12-cv-02800-TLN- 27 CKD, 2014 WL 6612088 at *2 (E.D. Cal. Nov. 20, 2014). The fourth 28 and fifth reasons favor Plaintiff, because it has demonstrated nee nnn nee nnn nn nn ee nnn nnn ne on SN ON 1 financial hardship and the stark economic disparity between 2 itself, a non-profit, and Defendant, a government entity. The 3 third reason does not weigh in favor of either party, because it 4 is unclear if taxing costs would chill the Plaintiff from future 5 suits. Given that neither party clearly prevails when the above 6 five factors are considered by the Court and the presumption in 7 favor of the prevailing party, the Court grants costs for the 8 Defendant. 9 In the event costs are taxed, Plaintiff asked that the Court 10 reduce the amount taxed to $300.00. Pl’s Objection at 8. The 11 Court declines. Defendant’s costs are facially reasonable 12 compared to costs granted in the Ninth Circuit for compiling the 13 administrative record. See Pit River Tribe v. Bureau of Land 14 | Mgmt., No. 2:04-cv-00956-JAM-JEFM, 2013 WL 6185240, at *3 (E.D. 15 Cal. Nov.26, 2013) (awarding $19,851.60); Friends of Tahoe Forest 16 | Access v. U.S. Dep't of Agric., No. 12-cv-01876-JAM-CKD, 2014 WL 17 1575622, at *3 (E.D. Cal. Apr.17, 2014) (awarding $14,875.23). 18 | As the objecting party, Plaintiff failed to present sufficiently 19 persuasive arguments why costs should be denied or reduced. 20 | Accordingly, Plaintiff’s objections are overruled. 21 Til. ORDER 22 For the reasons set forth above, the Court overrules 23 Plaintiff’s objections and GRANTS Defendant’s costs. Total costs 24 awarded are $16,614.05. 25 IT IS SO ORDERED. 26 Dated: October 19, 2021 27 kA 28 teiren staves odermacr 7008