Opinion
Civil No. 03-613-KI.
May 10, 2004.
Michael D. Axline, Peter M.K. Frost, Western Environmental Law Center, Eugene, Oregon, Attorneys for Plaintiffs.
John P. Almeida, U.S. Department of Justice, Washington, D.C., Owen L. Schmidt, USDA — Office of the General Counsel, Portland, Oregon and Stephen J. Odell, U.S. Attorney's Office, Portland, Oregon, Attorneys for Defendants.
Julie A. Weis, Scott W. Horngren, Haglund Kirtley Kelley Horngren, LLP, Portland, Oregon, Attorneys for Amici Curiae/Defendants-Intervenors.
OPINION AND ORDER
Plaintiffs Oregon Natural Resources Council Action, Oregon Natural Resources Council Fund, and American Lands Alliance move pursuant to the Equal Access to Justice Act for an award of approximately $100,000 in attorneys' fees and costs. The Forest Service opposes plaintiffs' motion, arguing that the motion is premature and that the Forest Service was substantially justified in its position.
PROCEDURAL BACKGROUND
On October 9, 2003, this court issued an Opinion and Order granting plaintiffs' motion for summary judgment and denying the Forest Service's motion for summary judgment. In the Opinion, I found that the Forest Service's attempt to correct legally deficient Environmental Assessments ("EAs") by using Supplemental Information Reports ("SIRs") was inconsistent with the National Environmental Policy Act ("NEPA"). After briefing and hearing on the appropriateness of injunctive relief, I entered an order on November 21, 2003, based in part on the parties' stipulation. The order provided as follows:
1. The Forest Service shall not approve, authorize, or allow any further logging or other ground-disturbing activities on any of the six timber sales subject to this court's October 9, 2003, Opinion in this case, pending a decision by the agency whether to propose to resume any such activities. However, the Forest Service may yard and remove trees that have already been felled within units of the sales, it may replant logged units, it may pile and burn slash, and it may close roads.
2. If the Forest Service decides that it wishes to propose to proceed with any logging or ground-disturbing activities on any of the six timber sales, it shall first comply with NEPA by preparing Environmental Assessments, Supplemental Environmental Assessments or Environmental Impact Statements that consider, analyze and disclose the impacts of any logging or other ground-disturbing activities. The Forest Service shall analyze the effects of the Borg and East Devil timber sales on the Canada lynx.
3. The Forest Service shall prepare draft NEPA analyses and submit the analyses for public comment by February 17, 2004. The Forest Service shall receive public comment on the draft analyses until March 18, 2004. After reviewing comments submitted, the Forest Service shall prepare final NEPA analyses by April 16, 2004. Plaintiffs shall submit any objections to the final NEPA analyses with this court by May 17, 2004. If any such objections are filed, the court will establish a briefing schedule and hold a hearing on the objections.
4. The injunction on any further logging or ground-disturbing activities shall continue until such time as the court has resolved any objections and determined that the Forest Service has complied with NEPA. If plaintiffs do not file timely objections in accordance with the procedures described above, the injunction shall be deemed vacated.
November 21, 2003, Opinion and Order at 6-7.
Pursuant to the schedule set forth in the order, the Forest Service made available draft NEPA documents on February 17, 2004. Plaintiffs, along with several other environmental organizations and timber interests, filed extensive comments during the public comment period. The Forest Service has recently filed with the court copies of its final supplemental EAs, including responses to the comments received during the allotted time period. The plaintiffs have until May 17 to file objections with the court.
DISCUSSION
The Equal Access to Justice Act ("EAJA") provides that the court shall award attorney fees and expenses to a prevailing party in any civil action brought by or against the United States unless the court finds that the government's position was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A).
The Forest Service argues that plaintiffs are not entitled to fees because the Forest Service's positions regarding the EAs/SIRs and with respect to this litigation were substantially justified. The test for determining whether the government was substantially justified is whether its position had a reasonable basis both in law and fact. Pierce v. Underwood, 487 U.S. 552, 565 (1988); Flores v. Shalala, 49 F.3d 562, 569-70 (9th Cir. 1995). The burden is on the government to prove substantial justification. Id. at 569. Substantial justification means justified to a degree that could satisfy a reasonable person.Bay Area Peace Navy v. United States, 914 F.2d 1224, 1230 (9th Cir. 1990). In evaluating the government's position, the court must look at both the underlying government conduct and the positions taken by the government during the litigation. Barry v. Bowen, 825 F.2d 1324, 1330-31 (9th Cir. 1987).
Plaintiffs argue that the Forest Service's position was not substantially justified. They note that the court decided the summary judgment motions primarily based on the Ninth Circuit's ruling in Idaho Sporting Congress v. Alexander, 222 F.3d 562 (9th Cir. 2000). Plaintiffs argue that the Forest Service was well aware of the Ninth Circuit's holding that SIRs could not be used to cure deficient EAs, and plaintiffs point out that the agency made many of the same arguments in that case (and lost) as it made in this case.
Although the government apparently believes that the court extended the Ninth Circuit's ruling in Idaho Sporting Congress, they must acknowledge this adverse precedent. Although I do not dispute that the agency made some colorable attempts to distinguish the facts of this case from Idaho Sporting Congress, this does not mean its position was substantially justified such that plaintiffs should not receive fees. The agency also relies on a statement I made on the record suggesting that this was "not a good result." Counsel is taking the statement out of context. I was referring to the uncertainty that the logging companies will now face and the delay in resolution of these issues. Whereas, the result may have been avoided had the Forest Service followed NEPA's requirements in the first place. The Forest Service does not cite to any cases in which courts have held an agency's position in an environmental case like this was substantially justified, and this is the agency's burden. I conclude that the Forest Service's position was not substantially justified.
The Forest Service makes no arguments about the fee award calculations. However, it does argue in passing that if the court were to issue a fee award, the hours plaintiffs' counsel expended on claims two and three of the complaint should not be included in the award because the court did not reach those claims. Plaintiffs' second and third claims were simply asserting additional ways in which the agency allegedly violated NEPA by not conducting new or supplemental NEPA analyses, and claim two is pleaded in the alternative to claim one. Plaintiffs may get attorneys' fees for "unsuccessful claims" if they involved a common core of facts as the successful claims. Hensley v. Eckerhart, 461 U.S. 424, 434-35 (1983); Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1499 (9th Cir. 1995) (noting that "the test is whether relief sought on the unsuccessful claim is intended to remedy a course of conduct entirely distinct and separate from the course of conduct that gave rise to the injury upon which the relief granted is premised"). I conclude that plaintiffs are entitled to the full fee award, and I find that the hours expended and hourly rates are reasonable.
Finally, the Forest Service argues that plaintiffs should not be awarded fees and costs because there has been no final judgment entered in this action. The government is correct that under EAJA, an award is appropriate once a final judgment, which is defined as one that is final and not appealable, has been entered. See 28 U.S.C. § 2412(d)(2)(G); Melkonyan v. Sullivan, 501 U.S. 89, 94-95 (1991). Plaintiffs cite to several cases that suggest a final judgment that ends the possibility of any further litigation is not required to award interim fees under EAJA. See e.g., Animal Lovers v. Carlucci, 867 F.2d 1224, 1225 (9th Cir. 1989). The government cites to other cases in which the Circuit has explicitly held that without a final judgment, an EAJA fee request is premature. See, e.g., United States v. Real Property Located at Section 18, 976 F.2d 515, 521 (9th Cir. 1992).
This case does not fit neatly within any of the cases cited by the parties. Unlike the typical NEPA case, the court has retained jurisdiction to decide challenges to the new NEPA documents. On the one hand, the case is not over, and this is reflected by the absence of any judgment in the record. On the other hand, plaintiffs have prevailed on the merits and have obtained an injunction. Any challenge to the new NEPA documents is effectively a subsequent and different case.
I am inclined to award fees even though this case is not entirely concluded. Under the statute, however, I believe that there must be some form of judgment, such as a Rule 54(b) judgment, entered. Each party is directed to submit one brief no longer than 15 pages, setting forth its position regarding the appropriateness of entering a partial judgment. Additionally, the parties are to address the questions discussed briefly during oral argument about the government's ability to appeal any of the court's underlying decisions in this action and the status of the fee award pending appeal.
CONCLUSION
For the foregoing reasons, plaintiffs' Motion for Attorneys' Fees and Costs (#117) is denied at present, but the court will award fees after resolution of the remaining issues discussed in this Opinion. The parties shall submit supplemental briefing by May 30, 2004.
IT IS SO ORDERED.