IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

BARK, an Oregon non-profit corporation, 

FRIENDS OF MOUNT HOOD, an Oregon 

non-profit corporation, NORTHWEST 

ENVIRONMENT AL DEFENSE CENTER, 

an Oregon non-profit corporation, and 

SIERRA CLUB, a Califomia non-profit 

corporation, 

Plaintiffs, 

v. 

LISA NORTHROP, Acting Forest Supervisor 

of the Mt. Hood National Forest, BILL 

WESTBROOK, Zigzag District Ranger, 

KENT CONNAUGHTON, Regional Forester 

for Region 6, and the UNITED ST A TES 

FOREST SERVICE, a federal Agency; 

WILLIAM STELLE, Regional Director of the 

West Coast Region, and the NATIONAL 

MARINE FISHERIES SERVICE, 

Defendants, 

RLK AND COMPANY, an Oregon 

corporation, 

Defendant-Intervenor. 

Page 1 - OPINION AND ORDER 

Case No. 3: 13-cv-00828-AA 

OPINION AND ORDER 
AIKEN, District Judge: 

Plaintiffs filed suit under the Administrative Procedures Act ("AP A"), alleging violations 

of the National Environmental Policy Act ("NEPA"), the National Forest Management Act 

("NFMA"), and the Endangered Species Act ("ESA") by federal defendants United States Forest 

Service ("the Forest Service") and National Marine Fisheries Service ("NMFS"). Previously, the 

Coutt denied plaintiffs' Motions for Summary Judgment and granted federal defendants' and 

defendant-intervenor, RLK's, Cross Motions for Summary Judgment. (docs. 192 and 230) On 

March 31, 2018, the Coutt entered a Final Judgment, formally dismissing this action. As 

prevailing patties, federal defendants and defendant-intervener have timely sought costs pursuant 

Federal Rule of Civil Procedure 54(d) and 28 U.S.C. § 1920. (docs. 233 and 234) Plaintiffs 

object to both Bills of Costs on the basis of individual line-items and equitable grounds. I 

conclude that plaintiffs have not met their burden to overcome the presumption of awarding costs 

to the prevailing party. Accordingly, I GRANT federal defendants costs in the amount of 

$7,030.41 and defendant-intervenor costs in the amount of$591.75. 

LEGAL STANDARD 

Federal Rule of Civil Procedure 54(d) provides that, "[u]nless a federal statute, these 

rules, or a coutt order provides otherwise, costs~other than attorney's fees~should be allowed 

to the prevailing patty." Fed. R. Civ. P. 54(d). "Costs" taxable under Rule 54(d) "are limited to 

those set fo1th in 28 U.S.C. §§ 1920 and 1821." Twentieth Century Fox Film Corp. v. Entm 't 

Distrib., 429 F.3d 869, 885 (9th Cir. 2005), (citing Crawford Fitting Co. v. J. T Gibbons, Inc., 

482 U.S. 437,445 (1987)). 28 U.S.C. § 1920, provides that the comt may tax as costs: 

(1) Fees of the clerk and marshal; 

(2) Fees for printed or electronically recorded transcripts necessarily obtained for 

use in the case; 

(3) Fees and disbursements for printing and witnesses; 

Page 2 - OPINION AND ORDER 
( 4) Fees for exemplification and the costs of making copies of any materials 

where the copies are necessarily obtained for use in the case; 

(5) Docket fees under section 1923 of this title; 

( 6) Compensation of court appointed experts, compensation of interpreters, and 

salaries, fees, expenses, and costs of special interpretation services under section 

1828 of this title. 

28 u.s.c. § 1920. 

Rule 54 creates a presumption in favor of awarding costs to the prevailing party. See e.g., 

Ass'n of1\1ex.-Am. Educators v. California, 231 F.3d 572, 592-93 (9th Cir. 2000). "[!]fa district 

court wishes to depart from that presumption, it must explain why so that the appellate court will 

be able to detem1ine whether or not the trial comt abused its discretion ... [and] explain why a 

case is not ordinary." Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003) 

( quotation marks and citation omitted). When exercising its discretion in to deny costs, Comts 

should consider the following factors: (1) whether the suit was brought in the public interest, (2) 

the limited financial resources of the losing party, (3) whether the suit was brought in good faith 

and whether the claims had merit, and ( 4) the chilling effect that imposing costs may have on 

future litigants. Ass'n ofMex.-Am. Educators, 231 F.3d at 591-593. 

The district court, however, "needs no affirmatively expressed reason to tax costs. 

Rather, it need only conclude that the reasons advanced by the patty bearing the burden-the 

losing patty-are not sufficiently persuasive to overcome the presumption." Id. at 946. Comts 

are free to construe the meaning and scope of the items enumerated as taxable costs in 28 U.S.C. 

§ 1920. Aljlex Corp. v. Underwriters Lab., Inc., 914 F.2d 175, 177 (9th Cir. 1990). The district 

court retains broad discretion to decide how much to award, if anything. Padgett v. Loventhal, 

706 F.3d 1205, 1209 (9th Cir. 2013). Ultimately, it is "incumbent upon the losing patty to 

demonstrate why the costs should not be awarded." Stanley v. Univ. ofS. Cal., 178 F.3d 1069, 

1079 (9th Cir. 1999) (citation omitted). 

Page 3 - OPINION AND ORDER 
DISCUSSION 

Federal defendants seek $7030.41 on costs for exemplification fees, docket fees, and fees 

for formatting and producing copies of the administrative record. 1 Defendant-intervenor seeks 

$591.75 on costs for transcript fees, copy costs, and docket fees. 2 Plaintiff objects to all costs on 

multiple grounds. 

The Court finds that federal defendants are entitled to fees for preparation of the 

administrative record. This Court has previously held that "the costs associated with the 

fonnatting and preparing of the administrative record are proper and necessarily incurred to 

produce electronic copies" for use in a case. See, Western Radio Serv. Co., Inc. v. Allen, 6: 14-

cv-00747-AA (D. Or. Feb. 2, 2016) (doc. 159 at *2) (citing Oregon Wild v. US. Forest Serv., 

2015 WL 6409975, at *2 (D. Or. July 31, 2015; BARK v. Northrop, 3:13-cv-01267-HZ (D. Or. 

June 23, 2014) (doc. 80 at *9). As to plaintiffs complaints about irrelevant photos being 

included in the record, the Court disagrees. These photographs documented restoration portions 

of the whole project which were at issue, and the Court reviews the record as whole when 

conducting agency review. Moreover, the Comt finds that the scanning and copying fees 

disputed by plaintiff are appropriate as well. Finally, Federal defendants are entitled to recover 

statutory docket fees pursuant to 28 U.S.C. 1923. 

As to defendant-intervenor's costs, the Court finds that the fees for transcripts are 

allowable and that the transcripts were necessarily obtained for use in this case. Aflex Corp. v. 

Underwriters Lab., Inc., 914 F.2d at 177. Defendant intervenor is also awarded its 

1 Federal defendants conceded costs for transcript fees in the amount of$101.85 which 

are included in their bill of costs. These fees are not included in the total awarded in this Order. 

2 Defendant-intervenor conceded costs for its two pro hac vice application fees in the 

amount of $200.00. These fees are not included in the total awarded in this Order. 

Page 4 - OPINION AND ORDER 
exemplification and copying fees, and it is entitled to recover the Statutory Docket Fee. See 28 

U.S.C. §1923. 

The Court declines to exercise its discretion to deny costs. While this case may have 

been brought in the public interest, "NEPA plaintiff are not immune from costs of prevailing 

parties." BARK v. Northrop, 3:13-cv-01267-HZ (D. Or. June 23, 2014) (doc. 80 at *5) And even 

if the case was brought in the public interest, the Court does not find that costs requested here 

would have a chilling effect on future litigation. Plaintiffs have brought and continue to bring 

similar lawsuit despite similar costs being awarded in the past. The Court does not find that the 

costs requested here are excessive when considered in light of the entire length and scope of this 

litigation. The Comt does not doubt that plaintiffs brought this litigation initially in good faith, 

but as "most cases are required to be brought in good faith pursuant to Rule 1 l(b)" this alone is 

not a strong enough reason to overcome the presumption in favor of taxing costs. Id. at 7. 

Having thoroughly reviewed the briefing in this matter, that Comt finds that federal 

defendants and defendant-intervenors have sufficiently supported their costs, and the plaintiffs 

have failed to carry their burden to overcome the presumption in favor of awarding costs to the 

prevailing party. 

I II 

I II 

I II 

I II 

II I 

II I 

II I 

Page 5 - OPINION AND ORDER 
CONCLUSION 

Federal defendants' Bill of Costs (doc. 234) is GRANTED. Federal defendants 

are awarded costs in the amount of$7,030.41. Defendant-intervenor's Bill of Costs (doc. 233) is 

also GRANTED. Defendant-intervenor is awarded costs in the amount of $591.75. 

IT IS SO ORDERED. 

Dated this 22nd day of March 2019. 

Ann Aiken 

United States District Judge 

Page 6 - OPINION AND ORDER