Friends of Boundary Waters Wilderness v. Thomas

• Decision Date: 14 April 1995
• Docket Number: Nos. 94-1794,94-1936,s. 94-1794
• Citation: 53 F.3d 881
• Parties: 26 Envtl. L. Rep. 20,253 FRIENDS OF the BOUNDARY WATERS WILDERNESS; Sierra Club; The Wilderness Society; Defenders of Wildlife; Wilderness Watch; Wilderness Inquiry; Minnesota Public Interest Research Group; Izaak Walton League, of America, Appellants/Cross-Appellees, v. Jack Ward THOMAS, as Chief of the United States Forest Service; Mike Espy, as the Secretary of Agriculture; Appellees/Cross-Appellants, Minnesota Forest Industries, Inc.; Intervenor, City of Ely; Conservationist With Common Sense; F.B. Hubachek, Jr.; Wilderness Outfitters, Inc.; Intervenor--Amicus Curiae, Hedstrom Lumber Company, Inc., Intervenor.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 881

53 F.3d 881

26 Envtl. L. Rep. 20,253

FRIENDS OF the BOUNDARY WATERS WILDERNESS; Sierra Club;

The Wilderness Society; Defenders of Wildlife; Wilderness

Watch; Wilderness Inquiry; Minnesota Public Interest

Research Group; Izaak Walton League, of America, Appellants/Cross-Appellees, v. Jack Ward THOMAS, as Chief of the United States Forest

Service; Mike Espy, as the Secretary of

Agriculture; Appellees/Cross-Appellants,

Minnesota Forest Industries, Inc.; Intervenor,

City of Ely; Conservationist With Common Sense; F.B.

Hubachek, Jr.; Wilderness Outfitters, Inc.;

Intervenor--Amicus Curiae,

Hedstrom Lumber Company, Inc., Intervenor.

Nos. 94-1794, 94-1936.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 13, 1994.

Decided April 14, 1995.

Richard Alan Duncan, Minneapolis, MN, argued (Brian B. O'Neill and Madhulika Jain, on the brief), for appellants.

Peter A. Appel, Dept. of Justice, Washington, DC, argued (Robert Klarquist, Robert Small, and Maria A. Iizuka, on the brief), for appellees.

Before MCMILLIAN, Circuit Judge, LAY and JOHN R. GIBSON, Senior Circuit Judges.

JOHN R. GIBSON, Senior Circuit Judge.

The Friends of the Boundary Waters Wilderness' efforts to recover attorney's fees incurred in litigation over the management of the Superior National Forest in Minnesota have produced this appeal and cross-appeal. The Friends disputed two portions of the Forest Service's 1986 Land Resource Management Plan: (1) the continued use of motorized portages in the Boundary Waters Canoe Area Wilderness; and (2) the increase of below-cost timber sales in the Superior National Forest. The Friends appeal from the district court's denial of attorney's fees on the motorized portage issue arguing that the district court failed to apply the correct legal standard in determining whether the Chief of the United States Forest Service's position was substantially justified. The Chief and the Secretary of Agriculture cross-appeal arguing that the district court erred in awarding the Friends attorney's fees on the below-cost timber sales issue. We reverse and remand for an award of fees on the portage issue, and we partially affirm the award of fees on the below-cost timber sales issue.

The case now before us flies in the face of the Supreme Court's admonishment that the "attorneys' fees issue should not result in a second major litigation." Jenkins v. Missouri, 838 F.2d 260, 264 (8th Cir.) (citing Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983)), cert. denied, 488 U.S. 889, 109 S.Ct. 221, 102 L.Ed.2d 212 (1988). Here not only is there major litigation, but it is necessary that we consider the government's argument that the Friends had no standing to seek relief which they have already obtained.

A.

The Boundary Waters Canoe Wilderness Area located in northeastern Minnesota consists of some 1,075,000 acres of streams, lakes, and forests. In 1978, Congress passed the Boundary Waters Canoe Area Wilderness Act (The Wilderness Area Act), Pub.L.No. 95-495, 92 Stat. 1649 (1978). Section 4(g) of the Act states:

Nothing in this Act shall be deemed to require the termination of existing operation of motor vehicles to assist in the transport of boats across the [Prairie Portage, Four Mile Portage, and the Trout Lake Portage] during the period ending January 1, 1984. Following said date, unless the Secretary determines that there is no feasible nonmotorized means of transporting boats across the portages listed above, he shall terminate all such motorized use of each portage listed above.

In June 1986, the Forest Service completed the Plan for the Superior National Forest authorizing the continued motorized operation of Prairie Portage, Four Mile Portage, and Trout Lake Portage. The Plan concluded that the portages should remain open to motorized operation because it was not "feasible" to use nonmotorized portage wheels to move the boats across the portages.

The Friends brought an administrative appeal challenging the continued use of the motorized portages. In March 1989, the Chief determined that there was no "feasible" alternative to cross Prairie Portage, but that there was no finding as to feasibility concerning Four Mile or Trout Lake portages.

At that time, the Chief determined that "feasible" as used in the Wilderness Area Act meant "possible, not ideal or most practical." The Chief had directed the closing of the Four Mile and Trout Lake Portages and ordered study of nonmotorized portaging on all three portages. Six days later, the Chief issued a memorandum delaying the closure of the Trout Lake and Four Mile portages pending a feasibility study. The Friends contend that this reversal of policy was prompted by a telephone call that the Chief received from Representative Jim Oberstar. After the feasibility study was completed, the Chief considered the results and determined that though portaging by nonmotorized means could be done, it was not feasible in light of the risks to health and safety of the portagers. The Chief ruled that all three motorized portages should remain open indefinitely.

The Friends then filed suit challenging the Chief's decision. The district court held that the Wilderness Area Act was ambiguous and that the Chief's determination was a reasonable interpretation of the Act. The Friends appealed, and we reversed. Friends of the Boundary Waters Wilderness v. Robertson, 978 F.2d 1484, 1485 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2962, 125 L.Ed.2d 662 (1993). We held that the language of the Act was unambiguous, and that the Chief's interpretation was contrary to the proper definition of the term "feasible." Id. at 1487.

Following the district court's order requiring the Secretary of Agriculture to terminate the operation of motorized portages across the three sets of lakes and remanding the matter to the Secretary of Agriculture to take actions necessary to comply with existing laws, the Friends applied for $72,973.68 in costs and attorney's fees under the Equal Access to Justice Act, 28 U.S.C. Sec. 2412(d) (1988). The district court denied the Friends' request for attorney's fees, reasoning that Congress' silence as to what it meant by "feasible," made it impossible to conclude that the Secretary's interpretation was not substantially justified, even though this court found it to be erroneous. In reaching this conclusion, the district court relied upon its earlier opinion as well as Judge Magill's dissent. Friends of the Boundary Waters v. Robertson, 978 F.2d at 1489.

B.

The district court also ruled upon the Friends' application for attorney's fees on the below-cost timber sales issue. The 1986 Management Plan for the Superior National Forest increased timber sales during its first ten years of operation by 30%, to 97 million board feet per year. The Friends brought an administrative appeal in which they sought to compel the Forest Service to conduct the legally required analysis before approving or implementing a plan to expand the scale of below-cost timber sales. The Chief agreed that the Superior Forest Plan did not adequately consider the question of below-cost timber sales, and ordered further study on that question. However, the Chief also decided that the Superior Forest Plan would remain in effect during the completion of this study.

The Friends then brought suit in 1990 to ensure that no more than 75 million board feet of timber per year would be cut while the Forest Service further evaluated the program. In March 1991, the parties reached a settlement. Under the settlement it was agreed that no more than 85 million board feet of timber would be sold per year until the study's completion.

After the settlement, the Friends applied for $76,791.48 in costs and attorney's fees. The district court awarded the Friends the requested attorney's fees holding that the Chief had waived any objection he may have had to the Friends' standing, that the Friends qualified as a prevailing party for the purposes of the EAJA, and that the Chief's position on the below-cost timber sales issue was not substantially justified.

I.

The Friends contend that the district court abused its discretion when it concluded that the Chief's position on the portage issue was substantially justified and that the Friends were not entitled to attorney's fees under the EAJA. We reverse a district court decision not to award fees under the EAJA only for an abuse of discretion. Sec. Exch. Comm'n v. Comserve Corp., 908 F.2d 1407, 1411 (8th Cir.1990). In applying this standard, we review the district court's conclusions of law de novo and reject findings of fact only if they are clearly erroneous. Id.

The EAJA provides that "a court shall award to a prevailing party other than the United States fees and other expenses, ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. Sec. 2412(d)(1)(A). The Chief bears the burden of proving that his position is substantially justified. Sec. Exch. Comm'n v. Kluesner, 834 F.2d 1438, 1440 (8th Cir.1987). In order for the Chief to prevail he must show that his position was "clearly reasonable, well founded in law and fact, solid though not necessarily correct." Id. (quoting United States v. 1,378.65 Acres of Land, 794 F.2d 1313, 1318 (8th Cir.1986)) (emphasis in original); see Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988) (in order for the government's position to be substantially justified it must be "justified to a degree that could satisfy a reasonable person" and have a "reasonable basis both in law and fact."). The Chief has failed to meet this burden and the district court abused its discretion in concluding that the Chief was substantially justified.

In concluding that the Chief's position was substantially justified, the district court relied too heavily upon its original...