Lauren M. Rule (OSB #015174) 

Elizabeth H. Zultoski (OSB #105482) 

ADVOCATES FOR THE WEST 

3115 NE Sandy Blvd., Ste. 223 

Portland, OR 97232 

(503) 914-6388 

lrule@advocateswest.org 

ezultoski@advocateswest.org 

David H. Becker (OSB # 081507) 

Law Office of David H. Becker, LLC 

833 SE Main Street, #302 

Portland, OR 97214 

(503) 388-9160 

davebeckerlaw@gmail.com 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

OREGON WILD, FRIENDS OF LIVING 

OREGON WATERS, and WESTERN CASE NO. 1:15-cv-1360-CL

WATERSHEDS PROJECT, 

 

 Plaintiffs, DECLARATION OF DOUG

 HEIKEN IN SUPPORT OF 

 PLAINTIFFS’ OBJECTIONS TO 

v. BILL OF COSTS 

CONSTANCE CUMMINS, Forest 

Supervisor, Fremont-Winema National 

Forests, U.S. FOREST SERVICE, a federal 

agency, LAURIE R. SADA, Field 

Supervisor, Klamath Falls Office, U.S. FISH 

& WILDLIFE SERVICE, a federal agency, 

 

 Defendants, 

ED GARRETT RANCH, INC., an Oregon 

Corporation, PHILIP GROHS, dba Grohs 

Ranch, MATT OWENS, an individual, 

ADAM OWENS, an individual, KNESS 

CATTLE, INC., and Oregon Corporation, 

CAIN RANCH LLC, an Oregon Limited 

Liability Company, STEVE SIMMONS, 

an individual, HOLIDAY RANCHES, 

INC., a California Corporation, and C&A 

VOGT COMMUNITY PROPERTY 

TRUST, a California Trust, 

 Defendant-Intervenors. 

 

Case 1:15-cv-01360-CL Document 61 Filed 04/05/17 Page 1 of 6
DECLARATION OF DOUG HEIKEN IN SUPPORT OF PLAINTIFFS’ OBJECTIONS TO 

BILL OF COSTS 

1 

I, Doug Heiken, declare: 

 1. I am the Conservation and Restoration Coordinator for Oregon Wild and reside in 

Eugene, Oregon. I began volunteering with the organization in 1990 and joined the staff in 

1995. The following matters are personally known to me, and if called as a witness I would and 

could truthfully testify thereto. 

 2. Oregon Wild (formerly Oregon Natural Resources Council) is a statewide 

501(c)(3) non-profit, tax-exempt, public interest organization that was founded in 1974 and 

represents over 20,000 members and supporters from all across the state. Oregon Wild’s mission 

is to protect and restore our state’s wildlands, wildlife, and water as an enduring legacy. To 

carry out this mission, we engage in a variety of activities including hikes and outdoor education, 

scientific monitoring and analysis, citizen enforcement of state and federal environmental laws, 

and political advocacy. Some our of recent successes and work include passing federal 

legislation to protect 127,000 acres of wilderness and 83 miles of wild and scenic rivers in 

Oregon, securing permanent protections for Waldo Lake from motorized uses, and advocating 

for protection of the Klamath Basin National Wildlife Refuge and surrounding areas and 

imperiled fish and wildlife. 

 3. As part of its mission, Oregon Wild reviews federal land management decisions 

such as livestock grazing authorizations, endangered species act consultations, and timber sales. 

The organization gets involved in public processes and advocacy efforts surrounding such 

decisions to ensure the agencies are using the best available science in making management 

decisions, complying with environmental laws, and upholding the public interest by adequately 

protecting natural resources and recreation on public land. We get involved to protect public 

benefits that flow from public lands and ensure that federal agencies do not elevate private 

Case 1:15-cv-01360-CL Document 61 Filed 04/05/17 Page 2 of 6
DECLARATION OF DOUG HEIKEN IN SUPPORT OF PLAINTIFFS’ OBJECTIONS TO 

BILL OF COSTS 

2 

interests above public interests. When Oregon Wild has significant concerns about agency 

decisions that we cannot successfully address through public participation processes or 

collaborative efforts, the organization occasionally seeks redress through the federal courts. We 

take litigation very seriously because we know that our organization, the agencies, and the courts 

have limited time and resources. Indeed, our staff members focus on educational, policy, nonlitigation advocacy, and other organizational activities and we do not have a staff attorney who 

can bring litigation on our behalf. 

 4. While we prefer to collaborate and avoid litigation to resolve our concerns, we 

use federal courts as a last resort to protect our interests and those of our members and the 

public. For example, Oregon Wild (when it was known as the Oregon Natural Resources 

Council) was involved in the lawsuit against Fish and Wildlife Service for failing to list the 

spotted owl as endangered under the Endangered Species Act (“ESA”) due to political pressures, 

which has ultimately resulted in sweeping protections for the species and its habitat in the 

Northwest. I helped with another Oregon Wild lawsuit that caused government agencies such as 

the Forest Service to survey for and protect rare species prior to authorizing logging on public 

lands. 

 5. Unfortunately, in spite of unambiguous legal requirements to conserve wildlife, 

the federal land management agencies are under great pressure to produce commodities from 

public lands, so federal litigation is often the only avenue our organization has to remedy its 

concerns about federal agencies’ ESA consultations. Unlike other federal environmental 

statutes, the ESA does not provide public involvement opportunities and does not require 

agencies to solicit public comment on consultations. As a result, the organization may not learn 

of a consultation until it is finalized. At that point, if the organization is concerned about a 

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DECLARATION OF DOUG HEIKEN IN SUPPORT OF PLAINTIFFS’ OBJECTIONS TO 

BILL OF COSTS 

3 

consultation’s scientific analyses or allowance for harm of the species at issue, we can either 

challenge the consultation in court or allow the flawed consultation to govern an agency action, 

which can last for years or have long-lasting effects. 

 6. In this case, Oregon Wild challenged the ESA consultation and other agency 

decisions to allow livestock grazing on public lands due to serious concerns about the effects that 

those decisions would have on the critically endangered suckerfish and its critical habitat in the 

Lost River basin. We brought this litigation in good faith due to these concerns. 

 7. To the best of my knowledge, prior to filing the complaint in this lawsuit, Oregon 

Wild had not been required to pay cost bills in the course of litigation. Shortly after this lawsuit 

was filed, Judge Panner assessed a cost bill of $1,259.73 against us in a timber sale case, Oregon 

Wild v. U.S. Forest Serv., No. 14-981-PA. Approximately a year later, Judge Panner assessed a 

cost bill that was several times larger, $5,291.00, against us in another timber sale case, KlamathSiskiyou Wildlands Center v. Gerritsma, No. 12-1166-PA. These costs bills were a shock to our 

organization because we have been litigating for decades and do not recall other instances where 

the federal government sought to extract the costs associated with the production of 

administrative records in these types of cases. As an organization, we are gravely concerned 

with the federal government’s abrupt decision to seek significant cost bills against environmental 

plaintiffs who do not prevail. 

 8. One of our overarching concerns with the imposition of these cost bills is their 

unpredictability, inconsistency, and wide variability. The second cost bill that was assessed 

against us was more than four times larger than in the first case, even though both were 

challenges to timber sales that were based on the administrative record. We understand other 

judges in the District of Oregon have denied cost bills for administrative records in full while 

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DECLARATION OF DOUG HEIKEN IN SUPPORT OF PLAINTIFFS’ OBJECTIONS TO 

BILL OF COSTS 

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still others have reduced bills based on unrecoverable administrative record costs sought by the 

government. We have also heard that in other jurisdictions, the government has sought and been 

awarded cost bills that have reached into the tens of thousands of dollars. This makes it virtually 

impossible to accurately assess or plan for costs when deciding to bring litigation. We 

respectfully believe it is unfair for our organization to be subjected to such wildly divergent costs 

due to the specific desires of a particular agency, ranger district, or attorney involved in the case 

and the particular judge who is assigned to a matter. 

9. We also find it troubling that the government seeks to tax environmental groups 

for production of these records even though the agencies are legally mandated to prepare them 

for every decision they make and are required to produce, and often do produce, these records 

free of cost under the Freedom of Information Act (“FOIA”) to organizations like ours. Oregon 

Wild regularly seeks and is granted fee waivers for public records typically included in the 

administrative record of projects like this. Further, imposing costs of several hundred to several 

thousand dollars on small non-profit groups like Oregon Wild represents a substantial fraction of 

our discretionary budget, but this same cost represents only a miniscule fraction of the federal 

budget. We respectfully assert it is more fair and equitable for the government to assume this 

cost in the uncommon instances where organizations seek to protect the public interest through 

citizen enforcement, as Congress intended through the ESA and the Administrative Procedure 

Act, but do not ultimately prevail. Where organizations bring truly frivolous lawsuits, which this 

was not, the court has other methods of sanctioning such misdeeds. 

 10. As a result, these cost bills are having a severe chilling effect on our organization, 

which is a small non-profit with a limited budget that is primarily devoted to non-discretionary 

items such as staff salaries. When considering whether to challenge agency decisions, we now 

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DECLARATION OF DOUG HEIKEN IN SUPPORT OF PLAINTIFFS’ OBJECTIONS TO 

BILL OF COSTS 

5 

must consider the risk of cost awards, but have no way of accurately assessing that risk given the 

huge disparities in potential outcomes. We also worry that cost bills could become more 

prevalent or significantly larger under different administrations or if different federal employees 

are involved. In particular, we fear that additional court decisions awarding costs for the 

production of the administrative record will further embolden the government to seek additional 

costs from non-profit organizations in future cases. 

 11. Oregon Wild, like our co-plaintiffs and many others, plays an important role in 

fulfilling Congress’s policies underlying our bedrock environmental laws, which include 

allowing citizens to hold agencies accountable for violating those laws. Our limited resources 

already prevent us from pursuing potential litigation that would protect natural resources and 

prevent federal agencies from elevating private interests above public ones. The sudden and 

increasing onslaught of costs bills will make Oregon Wild think twice about fulfilling our citizen 

enforcement role. If organizations like ours are less likely to engage in such advocacy to prevent 

the government from skirting its duties under federal environmental laws, I worry that public 

treasures in Oregon will suffer as decisions of federal agencies are subjected to less scrutiny. 

 Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true 

and correct to the best of my knowledge. 

 Executed this 4th day of April, 2017, in Eugene, Oregon 

 

 _____________________ 

 Doug Heiken 

Case 1:15-cv-01360-CL Document 61 Filed 04/05/17 Page 6 of 6