569 F.Supp. 943
The HOOPA VALLEY TRIBE, a federally-recognized Indian tribe, Plaintiff,
James G. WATT, Secretary of the Interior; Kenneth L. Smith, Assistant
Secretary for Indian Affairs; William E. Finale, Sacramento Area Director,
Bureau of Indian Affairs; Wilson Barber, Jr., Superintendent, Northern
California Agency, Bureau of Indian Affairs, and The United States of America,
United States District Court, N.D. California.
Feb. 1, 1983.
Robert L. Pirtle, Ziontz, Pirtle, Morisset, Ernstoff & Chestnut,
Thomas P. Schlosser, Seattle, Wash., Neil Shapiro, Cooper, White & Cooper, San
Francisco, Cal., for plaintiff.
Paul E. Locke, Asst. U.S. Atty., San Francisco, Cal., for defendants.
ORDER RE ATTORNEYS' FEES AND EXPENSES
PATEL, District Judge.
Plaintiff Hoopa Valley Tribe seeks attorney's fees and costs pursuant to the
provisions of the Equal Access to Justice Act, 28 U.S.C. s 2412. Plaintiff is
a federally-recognized Indian Tribe; defendants are the United States and
other government entities and officials. Petitioner filed suit on July 24,
1981 challenging the government's refusal to approve a stream clearance
contract with the Hoopa Valley Tribe on the ground that the Yurok Indians had
not approved the contract. Plaintiff sought injunctive and declaratory relief
as to its entitlement to the contract under the provisions of the Indian Self-
Determination Act, P.L. 93-638. On August 4, 1981, this court entered a
preliminary injunction ordering defendants to approve and carry out the
proposed contract with the Hoopa Valley Tribe. On July 15, 1982, pursuant to a
joint motion and stipulation, the action was dismissed except that plaintiff
was granted leave to file an application for attorney's fees and costs under
the Equal Access to Justice Act within 30 days. Plaintiff filed a timely
The Equal Access to Justice Act provides for the award of costs and reasonable
fees and expenses of attorneys to the prevailing party in any civil action
brought against the United States or any agency or official of the United
States acting in his or her official capacity, unless the court finds that the
United States was substantially justified in its position or that special
circumstances make an award unjust. 28 U.S.C. ss 2412(a), 2412(d)(1)(A). In
this case, the United States does not dispute that plaintiff prevailed, as
indeed it could not. The order of dismissal incorporated defendants'
stipulation and consent to the central relief sought by plaintiff--specifically
that the United States refrain from refusing to award a contract to plaintiff
pursuant to the Indian Self-Determination Act on the ground that there is no
resolution from the Yurok Tribe concurring in the contract award.
The United States does, however, dispute plaintiff's entitlement to fees and
expenses on several grounds. First, it argues that plaintiff is not an
eligible "party" as defined by the Act. s 2412(d)(2)(B). Second, defendant
argues that the court should find that its position was substantially
justified. s 2412(d)(1)(A). Third, it argues that certain expenses incurred
by plaintiff do not come within the Act's definition of "expenses." s
2412(d)(2)(A). Finally, defendant claims that the compensation plaintiff seeks
is excessive in amount. The court has examined each of these contentions, as
discussed below, and concludes that except for certain unitemized expenses,
plaintiff is entitled to the fees and expenses it requests.
Section 2412(d)(2)(B) of the Equal Access to Justice Act sets forth the
definition of "party" which governs who may be eligible to recover fees and
expenses under the Act. It provides
"party" means (i) an individual whose net worth did not exceed $1,000,000 at
the time the civil action was filed, (ii) a sole owner of an unincorporated
business, or a partnership, corporation, association, or organization whose net
worth did not exceed $5,000,000 at the time the civil action was filed, except
that an organization *945 described in section 501(c)(3) of the Internal
Revenue Code of 1954 (26 U.S.C. 501(c)(3)) exempt from taxation under section
501(a) of the Code and a cooperative association as defined in section 15(a) of
the Agricultural Marketing Act (12 U.S.C. 1141j(a)), may be a party regardless
of the net worth of such organization or cooperative association, or (iii) a
sole owner of an unincorporated business, or a partnership, corporation,
association, or organization, having not more than 500 employees at the time
the civil action was filed.
 The court finds that plaintiff constitutes an eligible "party" under s
2412(d)(2)(B)(ii). The Tribe, not its individual members, is the party in this
action. It is an "association" or "organization" within the meaning of this
section. Therefore, it is an eligible party if its net worth did not exceed
$5,000,000 when this action was filed. [FN1] The only asset disclosed by
plaintiff is timber standing on its land. The United States does not contend
that plaintiff has any other assets. Thus, the parties have agreed implicitly
that the Tribe's sole asset is timber. Neither party has made any contentions
regarding the amount of tribal liabilities.
FN1. Plaintiff does not contend that it falls within the exception
provided for certain tax-exempt organizations or agricultural marketing
associations whose net worth exceeds $5,000,000. 28 U.S.C. s
The Act does not specify on its face by what method the court should value
assets. Accordingly, the court must look to other indications of Congress'
intent. The legislative history makes clear that Congress intended that the
historical cost of acquisition of assets may be used. S.Rep. No. 96-974, 96th
Cong., 2d Sess. 17 (Sept. 19, 1980), U.S.Code Cong. & Admin.News 1980, p.
4953. Plaintiff proposes in its reply brief that the court ascertain the
acquisition costs of its timber from Congress' grant of compensation of $1.25
per acre to Indians of California who were promised but did not receive land in
the 1850's, 25 U.S.C. s 653, approximately contemporaneous with the
establishment of the Hoopa Valley Reservation. Defendant has not contested
these acquisition figures, even though it has had ample time to seek leave to
respond since plaintiff filed its reply. Accordingly, the court finds that
$1.25 per acre may be used to determine acquisition costs. The Hoopa Valley
Reservation contains approximately 53,211 acres of uncut forest. At a cost of
$1.25 per acre, the value of plaintiff's sole asset is clearly well below the
statutory limit of $5,000,000. Thus, even assuming that plaintiff has no
liabilities which would reduce its net worth below the value of its sole asset,
the timber, plaintiff is an eligible party because it is an organization or
association whose net worth does not exceed $5,000,000. [FN2]
FN2. The court need not reach plaintiff's argument that it qualifies as an
association or organization with a net worth under $5,000,000 when its
timber is valued currently, because it has already determined that
plaintiff qualifies as a "party" under the alternative method of valuation
by acquisition cost. Therefore, the court need not engage in the difficult
and perhaps impossible task of assessing the impact on plaintiff's net
worth of various competing legal claims to the timber and the possible need
for government approval of timber sales.
The court also finds that plaintiff is an eligible "party" under the
alternative definition provided by the Act: an "association, or organization,
having no more than 500 employees at the time the civil action was filed." s
2412(b)(2)(B)(iii). Plaintiff's uncontradicted affidavit states that the Tribe
had only 71 employees when this action was filed, and has not had more than 189
employees at any time since. Thus, plaintiff falls within the plain and
unambiguous terms of the statute.
 The court is aware that the comparable provision under the Equal Access
for Justice Act for award of fees and expenses in administrative as opposed to
court proceedings defines "party" to exclude both those associations and
organizations whose net worth exceeds $5,000,000 and those who employ more than
500 employees, regardless of net worth. 5 U.S.C. s 504(b)(1)(B)(i), (ii). The
legislative history of the Act indicates an intention to *946 define "party"
identically for both administrative and court proceedings. H.Conf.Rep. No. 96-
1434, reprinted in 1980 U.S.Code Cong. & Admin.News 5003, 5011, 5015.
Nevertheless, the plain language of the two provisions defining "party" is
distinctly different. The provision governing eligibility for fees in civil
actions such as this one defines "party" by inclusion, listing three
alternative methods of qualification in the disjunctive. By contrast, the
provision for fees in administrative proceedings defines party by exclusion,
listing two conditions of disqualification in the conjunctive. Congress can
speak clearly if it chooses. When the applicable statutory language is clear
on its face, as here, it is not for the court to go beyond its terms to search
out ambiguity in the legislative history absent rare and exceptional
circumstances. See, e.g., Rubin v. United States, 449 U.S. 424, 101 S.Ct. 698,
701, 66 L.Ed.2d 633 (1981) (citations omitted); United States v. Rone, 598
F.2d 564, 569 (9th Cir.1979). No such exceptional circumstances are present
FN3. The court recognizes that in a different case application of this
provision might result in the eligibility of a party with substantial
resources who arguably did not conform to a Congressional purpose to limit
eligibility to those otherwise lacking the resources to challenge
government actions. That potential problem, however, is not raised here.
Plaintiff's uncontradicted affidavits state that the Hoopa Valley Tribe is
suffering severe budgetary constraints due to the failure of any timber
sale for 1982 and the general economic recession, and that over 80 percent
of the Tribe's heads of household have incomes below the poverty level.
Therefore, the court need not consider whether a different entity with very
substantial assets but no more than 500 employees could qualify for fees
under 28 U.S.C. s 2412(d)(2)(B)(iii).
II. Substantial Justification
Having determined that plaintiff is an eligible prevailing party, the court
must award it fees, expenses and costs unless it finds that "the position of
the United States was substantially justified or that special circumstances
make an award unjust." s 2412(d)(1)(A). Defendant does not argue the
existence of any such special circumstances in this case, and the court finds
that there are none. Defendant does argue, however, that its position that
approval of the Yurok Tribe was a valid reason for its refusal to approve the
stream clearance contract with the Hoopa Valley Tribe was substantially
justified. The court disagrees.
 Congress placed the burden of proof on defendant to establish
substantial justification. H.R.Rep. No. 96-1418, 96th Cong., 2d Sess. 10-11,
reprinted in 1980 U.S.Code Cong. & Ad.News 4984, 4989; Lauritzen v. Secretary
of the Navy, 546 F.Supp. 1221, 1226 (C.D.Ca.1982); Citizens Coalition for
Block Grant Compliance v. City of Euclid, 537 F.Supp. 422, 424 (N.D.Ohio
1982). The test is one of reasonableness and substantial justification.
Lauritzen, supra, 546 F.Supp. at 1226. Defendant has failed to meet its
burden. The court found in issuing a preliminary injunction against the United
States that its reason for refusing to approve plaintiff's proposed contract
was "an impossible condition which thwarts the plain meaning and spirit of the
Indian Self-Determination Act". Preliminary Injunction, Conclusion of Law No.
5 (August 4, 1981). The court further determined that defendant had acted
contrary to its own regulations and past practice. Conclusions of Law No. 6,
Finding of Fact No. 10. Accordingly, the court held that defendant had acted
arbitrarily, capriciously and illegally. Conclusion of Law No. 7. In fact,
defendant summoned little or no authority for its position, merely arguing its
own interpretation of the statute. Defendants' Memorandum in Opposition to
Motion for Preliminary Injunction, pp. 6-13.
Furthermore, defendant by its own conduct after issuance of the preliminary
injunction implicitly if not explicitly admitted that it lacked substantial
justification for its original position. Defendant joined a motion to dismiss
the suit on the grounds, inter alia, that its prior denial of the Hoopa's
application for approval of its contract because the Yurok Tribe had not
approved it was "not substantially justified under the Indian Self-
Determination Act" and consented to cease applying the challenged condition for
approval of contract awards to the Hoopa Valley Tribe pursuant to the
*947 Indian Self-Determination Act. Joint Motion for Dismissal (July 15,
III. Amount of Fees, Expenses and Costs Award
Plaintiff requests an award of $19,362.04 in attorney's fees billed and
$1539.55 in costs and other expenses. Defendant disputes that plaintiff is
entitled to the full amount on the grounds that (1) the hours are excessive;
(2) the fees exceed the statutory limit; (3) certain expenses are not
allowable under the statute; and (4) certain expenses were not itemized. The
court concludes that plaintiff is entitled to the full amount sought except for
certain unitemized expenses.
The total of 232.7 hours expended by plaintiff's counsel on this case was
reasonable. In that relatively modest amount of time, plaintiff obtained a
favorable temporary restraining order and preliminary injunction and engaged in
settlement negotiations which ultimately produced a favorable settlement.
 Plaintiff asks to be compensated at the rates of $97.90 for work by its
senior attorneys, $92.50 for work by other principal attorneys, $38.10 for work
by a law graduate and $15.00 for work by a law student. The Act provides that
"attorney fees shall not be awarded in excess of $75 per hour unless the court
determines that an increase in the cost of living or a special factor, such as
the limited availability of qualified attorneys for the proceedings involved,
justifies a higher fee." s 2412(d)(2)(A)(ii). The court finds that the
limited availability of qualified attorneys with the requisite special
expertise in Indian law justifies the hourly rates requested by plaintiff in
excess of $75. The two lead attorneys representing plaintiff have practiced
Indian law exclusively since 1968 and 1975 respectively and have special
expertise relevant to this case in the areas of Indian fishing rights and
contracting with Indians. Defendants do not dispute the limited availability
of other counsel with such expertise. Attorneys without this expertise would
undoubtedly have expended a far greater number of hours to achieve the same
result, albeit at a lower rate. Consequently the expense to the government
would have been substantially greater. Nor do defendants dispute that some
other firms specializing in Indian law with similar or less experience than
plaintiff's counsel have charged or sought an award of higher rates than
plaintiff's counsel seek here.
The court also finds that the lower rates sought for law clerk services are
reasonable and should be compensated as part of attorney's fees because the use
of such services is a cost-efficient component of the modern practice of law.
The court notes that it would be better practice for counsel to submit more
detailed records as to the nature of the work performed by the law clerks than
they provided here. The court will, however, award compensation for their
services in this case because the amount of time spent by the law clerks was
reasonable and only a small part of the total time spent litigating the case.
Further, it was billed at a much lower rate than had it been performed by more
senior attorneys, and defendants have made no substantial objection.
 The costs and expenses plaintiff seeks are also available under the
statute with the exception of the unitemized expenses of $416.34 for May 1982,
the nature of which the court cannot determine. The statute provides for the
award to the prevailing party not only of costs normally taxable in any civil
action, s 2412(a), but also "other expenses," s 2412(d)(1)(A). The statute
defines "other expenses" by example, rather than by limitation:
"fees and other expenses" includes the reasonable expenses of expert
witnesses, the reasonable cost of any study, analysis, engineering report,
test, or project which is found by the court to be necessary for the
preparation of the party's case ... s 2412(d)(2)(A) (emphasis added).
The court finds that "other expenses" includes the reasonable expenses of
long-distance telephone charges and travel incurred by plaintiff's counsel
because these are items normally charged to clients as legal expenses. The
purpose of the Act was to lower the financial barriers to litigation
*948 against the government by parties without substantial private resources
by compensating prevailing parties for fees and expenses which they would
otherwise be forced to bear. Cf. Northcross v. Board of Education of Memphis
City Schools, 611 F.2d 624, 639 (6th Cir.1979) (reasonable travel and telephone
costs are recoverable as necessary expenses incidental to legal representation
under the Civil Rights Attorneys Fees Act of 1976, 42 U.S.C. s 1988).
Defendants do not dispute that the itemized expenditures by plaintiff's counsel
were reasonably necessary to the conduct of this litigation.
The court cannot award the $416.34 requested for non-itemized expenses for May
1982, however, because it is impossible to determine whether these were
reasonable and allowable expenses. If plaintiff can provide prompt and
satisfactory documentation of these items, the court will entertain a motion to
amend the judgment as to these expenses.
Accordingly, IT IS HEREBY ORDERED THAT plaintiff is awarded $19,362.04 in
attorney's fees and $1,123.21 in costs and other expenses.