Center for Biological Diversity v. Norton

• Decision Date: 21 August 2001
• Docket Number: No. 00-2162,00-2162
• Citation: 262 F.3d 1077
• Parties: (10th Cir. 2001) CENTER FOR BIOLOGICAL DIVERSITY, a non-profit corporation, Plaintiff-Appellant, and SIERRA CLUB, Plaintiff, v. GALE A. NORTON, <A HREF="#fr1-*" name="fn1-*">* Secretary of the Department of the Interior, Defendant-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1077

262 F.3d 1077 (10th Cir. 2001)

CENTER FOR BIOLOGICAL DIVERSITY, a non-profit corporation, Plaintiff-Appellant, and SIERRA CLUB, Plaintiff, v. GALE A. NORTON,^* Secretary of the Department of the Interior, Defendant-Appellee.

No. 00-2162

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 21, 2001

Appeal from the United States District Court for the New Mexico. (D.C. No. CIV-98-322-LH/JHG)

Matt Kenna, Kenna & Hickcox, P.C., Durango, Colorado, for Plaintiff-Appellant.

Ronald M. Spritzer, United States Department of Justice, Washington, D.C., (Lois J. Schiffer, Assistant Attorney General, District of New Mexico, Albuquerque, New Mexico; John J. Kelly, United States Attorney, District of New Mexico, Albuquerque, New Mexico; John W. Zavitz, Assistant United States Attorney, District of New Mexico, Albuquerque, New Mexico; Ellen Durkee, Jane P. Davenport, Sean H. Donahue, Attorneys, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C., on the brief), for Defendant-Appellee.

Before KELLY, McKAY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Appellant, Center for Biological Diversity (the "Center"), filed a lawsuit seeking injunctive relief to require the Secretary of the Interior (the "Secretary") to take final agency action on listing the Arkansas River shiner (the "shiner") as an endangered or threatened species. The suit became moot when the Secretary took final action on the shiner. The Center then filed a motion seeking litigation costs, including attorney's fees, pursuant to 16 U.S.C. 1540(g)(4). The district court denied the Center's motion, holding that the Center had failed to demonstrate that its lawsuit was a catalyst in causing the Secretary to take final action on the shiner. The Center appeals. Exercising jurisdiction pursuant to 28 U.S.C. 1291, we affirm.

II. BACKGROUND

On August 3, 1994, the Secretary published a proposed regulation to list the Arkansas River basin population of the shiner as an endangered species. See Proposed Rule to List the Arkansas River Basin Population of the Arkansas River Shiner as Endangered, 59 Fed. Reg. 39,532, 39,532 (proposed Aug. 3, 1994). The shiner is a "small fish found in the Canadian (South Canadian) River in New Mexico, Oklahoma, and Texas; and the Cimarron River in Kansas and Oklahoma." Id. Pursuant to 4(b)(6)(A) of the Endangered Species Act (the "ESA"), the publication of the proposed rule triggered a one-year period by the end of which the Secretary was required to either: (1) publish a final rule listing the shiner as endangered or threatened, (2) publish a notice that the one-year period be extended, or (3) publish a notice that the proposed regulation be withdrawn. See 16 U.S.C. 1533(b)(6)(A)(i).

In the August 3, 1994 proposed rule, the Secretary made a finding that critical habitat for the shiner was not determinable. See Proposed Rule to List the Arkansas River Basin Population of the Arkansas River Shiner as Endangered, 59 Fed. Reg. at 39,532. This finding triggered a maximum two-year period within which the Secretary was required to issue a final critical habitat designation for the shiner. See 16 U.S.C. 1533(a)(3)(A), (b)(6)(C). The Center contends that final agency action on listing the shiner should have been completed by August 3, 1995, and action on designating critical habitat for the shiner should have been completed no later than August 3, 1996.

Beginning April 10, 1995, a one-year, congressionally-imposed moratorium prohibited the Secretary from making final determinations that a species was threatened or endangered. See Emergency Supplemental Appropriations & Rescissions for the Dep't of Defense to Pres. & Enhance Military Readiness Act of 1995, Pub. L. No. 104-6, 109 Stat. 73, 86. When the moratorium was lifted on April 26, 1997, the Secretary was faced with a backlog of more than 240 proposed listings for which final determinations had not been made. See Restarting the Listing Program & Final Listing Priority Guidance, 61 Fed. Reg. 24,722, 24,722-23 (May 16, 1996). Faced both with this backlog and reduced funding for its listing activities, the Secretary implemented the Final Listing Priority Guidance, a hierarchical system that prioritized listing activities. See Forest Guardians v. Babbitt, 174 F.3d 1178, 1183-84 (10th Cir. 1999) (providing details on levels of funding for the listing program and the impact of the Listing Priority Guidance on the Secretary's listing activities).

As of May 13, 1997, the Secretary had not taken final action on listing the shiner or designating critical habitat. On that date, the Center submitted to the Secretary a sixty-day notice of intent to sue pursuant to 16 U.S.C. 1540(g)(2)(C).¹ Ten months later, having received no response from the Secretary to the sixty-day notice, the Center filed an action against the Secretary under the citizen-suit provision of the ESA. See 16 U.S.C. 1540(g) (allowing citizen suits for injunctive relief). The Center sought, inter alia, injunctive relief requiring the Secretary to take final action on the proposed rule to list the shiner as endangered and to take final action on designating critical habitat for the shiner.

On May 6, 1998, the Center filed a motion for summary judgment. The Secretary filed a response to the motion for summary judgment together with a motion requesting a stay. In support of the motion for stay, the Secretary filed a declaration executed by Jamie Rappaport Clark, the Director of the United States Fish and Wildlife Service (the "Service"). Clark recounted the activities relating to the listing of the shiner in which the Service had engaged since the congressionally-imposed moratorium had been lifted. These activities included the opening of a third public comment period from December 5, 1997 to January 5, 1998. See Reopening of Public Comment Period on the Proposed Rule to List the Arkansas River Basin Population of the Arkansas River Shiner as Endangered, 62 Fed. Reg. 64,337, 64,337 (Dec. 5, 1997). In the declaration, Clark estimated that the final listing determination for the shiner would be completed by November 15, 1998.

On November 23, 1998, the Secretary issued a final rule listing the shiner as a threatened species. See Final Rule to List the Arkansas River Basin Population of the Arkansas River Shiner (Notropis girardi) as Threatened, 63 Fed. Reg. 64,772, 64,772 (Nov. 23, 1998). The Secretary also determined that designation of critical habitat for the shiner was not prudent. See id. at 64,796-97. The Secretary's final action on the shiner provided all the relief sought by the Center in its lawsuit and, therefore, rendered the case moot. Accordingly, on December 7, 1998, the parties entered into a Joint Stipulation of Dismissal.

On March 1, 1999, the Center filed a motion for litigation costs, including attorney's fees, pursuant to 16 U.S.C. 1540(g)(4). The Secretary opposed the motion and supported its opposition with a declaration executed by Clark on April 2, 1999. The district court denied the motion and the Center's appeal is the matter before this court.

III. DISCUSSION

This court reviews a district court's refusal to grant attorney's fees for abuse of discretion. See Nat'l Ass'n of Prof'l Baseball Leagues, Inc. v. Very Minor Leagues, Inc., 223 F.3d 1143, 1146 (10th Cir. 2000). Legal conclusions underlying the district court's decision are reviewed de novo while factual findings are reviewed for clear error. See Vibra-Tech Eng'rs, Inc. v. United States, 787 F.2d 1416, 1418-19 (10th Cir. 1986). Thus, an abuse of discretion is established if the district court's adjudication of the attorney-fee issue is based upon an error of law or a clearly erroneous finding of fact. See Kiowa Indian Tribe v. Hoover, 150 F.3d 1163, 1165 (10th Cir. 1998).

A court may award litigation costs, including attorney's fees, in citizen suits brought pursuant to the ESA "whenever the court determines such award is appropriate." 16 U.S.C. 1540(g)(4). The Supreme Court, interpreting identical language in the Clean Air Act, has held that "absent some degree of success on the merits by the claimant, it is not 'appropriate' for a federal court to award attorney's fees . . . ." Ruckelshaus v. Sierra Club, 463 U.S. 680, 694 (1983). When there has been no adjudication on the merits, this court has held that a claimant seeking attorney's fees under 30 U.S.C. 1270(d), a statute that also allows fees to be awarded when "appropriate," must demonstrate that it was the catalyst behind the change in the defendant's conduct. See Powder River Basin Res. Council v. Babbitt, 54 F.3d 1477, 1486 (10th Cir. 1995). Although this court has never held that the catalyst test applies to fee requests pursuant to 16 U.S.C. 1540(g)(4), both parties advocate its application and we thus assume, without deciding, its applicability.²

To prevail under the catalyst test, the claimant must show: "(1) that [the] lawsuit is causally linked to securing the relief obtained and (2) that the defendant's conduct in response to the lawsuit was required by law." Powder River Basin Res. Council, 54 F.3d at 1486 (quotation omitted). The Secretary concedes that she was required to take final action on the proposed listing of the shiner and, accordingly, does not dispute that the Center has successfully met the second part of the catalyst test. Thus, the only issue before this court is whether the Center's lawsuit was causally linked to the relief obtained.³ This is a factual determination reviewed under the clearly erroneous standard. See Collins v. Romer, 962 F.2d 1508, 1511 (10th Cir. 1992); see also Manning v. United States, 146 F.3d 808, 812 (10th Cir. 1998) ("A finding of fact is clearly erroneous if it is without factual support in the record or if the appellate court, after reviewing all the evidence, is left with a definite and firm conviction that a mistake has been made." (quotations omitted)).

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