As the State of Wyoming prepares to make another push to delist the Yellowstone area’s grizzly bears, the federal government is still facing a nearly $1.4 million bill from its last such attempt.

The U.S. Fish and Wildlife Service sought to remove federal protections for grizzlies in the Greater Yellowstone Ecosystem in 2017, but was immediately sued by multiple coalitions of environmental groups and Native American tribes. In 2018, shortly before grizzly hunts were set to begin in Wyoming and Idaho, U.S. District Court Judge Dana Christensen of Montana threw out the Fish and Wildlife Service’s decision. The service appealed a part of the ruling, but lost again at the Ninth Circuit Court of Appeals. It was a clear victory for the groups and tribes through the Endangered Species Act — entitling them to have their attorneys fees and costs paid for by the federal government.

To date, the government has either agreed to or been ordered to pay $1,387,104 to five different groups of attorneys. Court records indicate that 26 attorneys spent roughly 5,000 billable hours on the case for the environmental groups and tribes, charging as much as $460 an hour.

The Department of Justice reached settlements ranging from $132,800 to $175,000 with three of the groups that played somewhat smaller roles in the case. However, the DOJ disputed the sums sought by WildEarth Guardians and a coalition consisting of the Northern Cheyenne Tribe, Sierra Club, Center for Biological Diversity and National Parks Conservation Association.

In a February filing, the Department of Justice said the $515,740 requested by WildEarth Guardians’ attorneys, and the $388,559.50 requested by attorneys for the Sierra Club coalition, were excessive and unreasonable.

“This is far too much for a relatively straightforward case that did not even go to trial, especially in light of the overwhelming evidence presented by the other plaintiff groups,” department lawyers argued of the total sum. “The number of hours, whether spent on duplicative tasks, excessive conferencing, unsuccessful arguments, or inappropriate staffing, are simply unreasonable.”

The DOJ specifically faulted WildEarth Guardians for requesting three times the fees of the groups that settled.

“At some point diligence becomes overkill,” the department contended. “A normal client would not tolerate inefficient billing practices, and this burden should not be shifted to the United States taxpayer.”

The DOJ lawyers suggested the two groups should be awarded no more than $175,000 apiece. However, Judge Christensen sided with the plaintiffs’ attorneys and awarded their full requests — totaling $904,300 — in July. 

Much of his decision hinged around the fact that the attorneys for WildEarth Guardians and the Sierra Club et. al. led the legal challenge to the bears’ delisting. 

He came to the defense of their groups’ two lead attorneys: Matthew Bishop of the Western Environmental Law Center for WildEarth Guardians and Tim Preso of Earthjustice for the Sierra Club coalition. The judge said he was troubled by the DOJ’s insinuation Preso and Bishop’s “vigorous advocacy was unnecessary, improper, or — even worse — unethical.”

“Nothing could be further from the truth,” Christensen wrote, calling them “attorneys of the highest caliber.”

Christensen suggested that the DOJ should have instead tried making the “duplicative” argument against some of the groups it settled with. In a filing, Bishop noted the government agreed to pay $132,804 to attorneys representing a coalition of tribes — 90% of what they’d requested — for a “relatively minimal amount of work,” as they did not brief or argue the case. (Bishop added it was the first time he’d been unable to reach a settlement with the government in some 23 years of federal environmental practice.)

“To the extent any ‘needless duplication’ occurred,” Judge Christensen later concluded, “the Court will not dock the attorneys who acted as lead counsel.”

The judge also rejected the DOJ’s contention that the litigation was straightforward, calling it a “complicated multi-stage, multiparty case” that spanned four years and included an administrative record of about 350,000 pages. He called WildEarth Guardians’ and the Sierra Club coalition’s fee requests “imminently reasonable.”

“Although this case was ‘not about the ethics of hunting’ grizzly bears’ as a ‘philosophical matter,’ Plaintiffs served as lead counsel in a case that garnered significant public interest from ‘ranchers and big-game hunters to conservationists and animal rights activists’ alike,’” Christensen added, quoting language from his 2018 ruling. “Plaintiffs’ success in stopping the impending grizzly bear hunt and requiring [Fish and Wildlife Service] to go back to the drawing board in its attempt to delist the [Greater Yellowstone Ecosystem] grizzly bear was a significant victory for them. The hours they spent in pursuit of this goal were commensurate with the stakes of the litigation.”

However, the federal government continues to dispute the amount it owes WildEarth Guardians and the Sierra Club coalition — challenging Christensen’s order to the Ninth Circuit of Appeals in August. The parties have been going through a court-ordered mediation process and apparently provided a status report to the circuit mediator in recent days, with another report due Jan. 12. Assuming the case is not resolved, the DOJ’s opening brief will be due on Feb. 4.