Klamath Siskiyou Wildlands v. U.S. Bureau of Land

• Decision Date: 15 December 2009
• Docket Number: No. 08-35463.,08-35463.
• Citation: 589 F.3d 1027
• Parties: KLAMATH SISKIYOU WILDLANDS CENTER; Cascadia Wildlands Project; Umpqua Watersheds, Plaintiffs-Appellees, v. UNITED STATES BUREAU OF LAND MANAGEMENT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

589 F.3d 1027

KLAMATH SISKIYOU WILDLANDS CENTER; Cascadia Wildlands Project; Umpqua Watersheds, Plaintiffs-Appellees, v. UNITED STATES BUREAU OF LAND MANAGEMENT, Defendant-Appellant.

No. 08-35463.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 1, 2009.

Filed December 15, 2009.

Robert Lundman, United States Department of Justice, Washington, D.C., argued the cause for appellant and submitted briefs. Brian Perron, Office of the Solicitor, Department of the Interior, Washington, DC; and Ronald J. Tenpas, Assistant Attorney General, Beverly F. Li, and Andrews C. Mergen, United States Department of Justice, Washington, DC, were also on the briefs.

Erin Madden, Cascadia Law P.C., Portland, OR, argued the cause for appellees and filed a brief. Marianne Dugan, Attorney, Eugene, OR, was also on the brief.

Appeal from the United States District Court for the District of Oregon, Owen M. Panner, District Judge, Presiding. D.C. No. 1:05-CV-03094-CL.

Before: DIARMUID F. O'SCANNLAIN, FERDINAND F. FERNANDEZ, and RAYMOND C. FISHER, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether environmental organizations are prevailing parties within the meaning of the Equal Access to Justice Act when, before judgment, the Bureau of Land Management withdraws its challenged decision to conduct a timber sale.

I

Plaintiffs Klamath Siskiyou Wildlands Center, Cascadia Wildlands Project, and Umpqua Watersheds ("Klamath") sued the Bureau of Land Management of the United States Department of the Interior ("BLM"), alleging that a planned timber sale in the Willy Slide area of the Medford District, among other decisions, violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and the Forest Lands Policy and Management Act ("FLPMA"), 43 U.S.C. § 1701 et seq. Klamath sought "a preliminary injunction; a declaration that the challenged decision violated certain laws; a permanent injunction against the project until the BLM complied with those laws; and an award of costs and attorneys fees."

Klamath filed its complaint in October of 2005. The BLM's own guidelines barred proceeding with the Willy Slide timber sale between October 15, 2005, and May 15, 2006, although a BLM official could waive this restriction. While cross-motions for summary judgment were pending before a magistrate judge, the parties stipulated that the BLM would stay authorization of the sale until the magistrate judge made a recommendation on the cross-motions and any objections had been resolved. The stay lasted only until May 15, 2006, at which point Klamath would have the option of moving for a preliminary injunction. The magistrate judge adopted this stipulation in January of 2006.

Meanwhile, in a different lawsuit, the same plaintiffs had challenged, on similar grounds, two other timber sales that the BLM had proposed. On November 6, 2006, we decided in favor of Klamath in the appeal of that case. See Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549 (9th Cir.2006). At the time, the cross-motions for summary judgment were still pending in this case before the magistrate judge. The day after Boody came down, the magistrate judge filed Findings and Recommendations ("F & R"). The magistrate judge concluded that Boody was "directly on point" and that Klamath was "entitled to summary judgment" on some of its claims.

That same day (November 7, 2006), the BLM on its own "vacated [its] earlier rulings and granted [Klamath's] protest of the Willy Slide timber sale." In a letter to Klamath, the BLM noted the objections to its previous decision, as well as "recent case law pertaining to similar activities and NEPA analysis." The BLM stated that, in light of those two considerations, it would wait to award the Willy Slide sale "until such time that supplemental analysis and decision-making has been completed as appropriate." It is unclear whether the BLM did this before or after it found out about the magistrate judge's F & R.

The BLM then moved to dismiss this case without prejudice for lack of jurisdiction on the ground that it was either moot or unripe, objecting to the F & R on the same basis. The district court granted the motion to dismiss on both grounds. It concluded that the action was no longer ripe because Klamath's "claims [were] contingent upon future events; the BLM may or may not proceed with [the Willy Slide timber sale].... If the BLM decides to offer the timber for sale again, [Klamath] will be able to challenge the sale and any under lying [sic] environmental documents." Alternatively, the action was moot because the court "[could not] grant [Klamath] any effective relief as the [Willy Slide timber sale] decision has been withdrawn and the [Annual Species Reviews¹] have been held invalid [in Boody]."

Klamath then moved for attorney's fees and costs under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Over the BLM's objection, the district court granted the motion. The BLM timely appeals.

II

In this country litigants ordinarily must pay their own attorney's fees, contrary to the rule that prevails in England. This "American rule" can change, but usually only by private agreement or statute. And indeed Congress has passed many statutes to allow parties who sue the United States to recover attorney's fees in certain circumstances, but only if they were "prevailing parties" in the lawsuit. See Buckhannon Bd. v. W. Va. Dep't of Health and Human Res., 532 U.S. 598, 600, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001).

One such statute is the Equal Access to Justice Act.² The term "prevailing party," in this as in other statutes, is a term of art that courts must interpret consistently throughout the United States Code. Id. at 603, 121 S.Ct. 1835; Perez-Arellano v. Smith, 279 F.3d 791, 794 (9th Cir.2002) (applying the Buckhannon definition of "prevailing party" to the EAJA); see also Sole v. Wyner, 551 U.S. 74, 127 S.Ct. 2188, 2194, 167 L.Ed.2d 1069 (2007) (citing cases interpreting "prevailing party" language in various federal statutes). It means "a party in whose favor a judgment is rendered, regardless of the amount of damages awarded." Citizens for Better Forestry v. U.S. Forest Serv., 567 F.3d 1128, 1131 (9th Cir.2009) (quoting Buckhannon, 532 U.S. at 603, 121 S.Ct. 1835 (quoting Black's Law Dictionary 1145 (7th ed.1999))).

This definition requires the party to have achieved "a material alteration in the legal relationship of the parties" that is "judicially sanctioned." Buckhannon, 532 U.S. at 604-05, 121 S.Ct. 1835 (internal quotation marks omitted); Carbonell v. INS, 429 F.3d 894, 898 (9th Cir.2005) (internal quotation marks omitted). The material alteration and the judicial sanction are two separate requirements. See Carbonell, 429 F.3d at 899.

The material alteration in the legal relationship of the parties must be relief that the would-be prevailing party sought, for "[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail." Hewitt v. Helms, 482 U.S. 755, 760, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987). The form in which the relief comes is less important than that it be the relief the plaintiff sued to get. Thus, an order remanding a case to an administrative agency for further proceedings passes the Buckhannon test, where such a remand is what the plaintiff or petitioner sought. Li v. Keisler, 505 F.3d 913, 917-18 (9th Cir.2007) (explaining that the prevailing parties had sought either to reopen removal proceedings or to obtain a remand for review of a specific legal claim). Even a voluntary stipulation, adopted by the district court, to stay deportation proceedings earns an immigrant petitioning for review "prevailing party" status, so long as the stay was the "primar[y] concern" of the case and secured the petitioner "much of the relief he [had] sought." Carbonell, 429 F.3d at 899-900.

Whatever form it takes, the "material alteration" must consist of actual relief, not merely a determination of legal merit. "[A] favorable determination on a legal issue, even if it might have put the handwriting on the wall, is not enough by itself." Better Forestry, 567 F.3d at 1133-34. Poland v. Chertoff, 494 F.3d 1174 (9th Cir.2007), furnishes a vivid example of this rule. We upheld a post-trial judgment in favor of the plaintiff on one claim but reversed on another. Id. at 1179-86. The damages award was based on the claim with respect to which we reversed the judgment, so we vacated the award and remanded for the plaintiff to seek a remedy. Id. at 1186. We also vacated the district court's award of attorney's fees because the plaintiff had not won "any relief on the merits of his claim[ ]," even though he had "established his claim" as a matter of law and "on remand [could] seek redress for injuries suffered." Id. at 1187. Thus, the court must formally indicate that the plaintiff is entitled to some actual-relief —legal or equitable relief³—in order to establish a material alteration. Id. A moral victory, in other words, is not enough. See Hewitt, 482 U.S. at 761, 107 S.Ct. 2672.

Buckhannon also emphasized the necessity of a "judicial imprimatur." 532 U.S. at 605, 121 S.Ct. 1835. The lodestar of this requirement is that "a plaintiff is [not] a `prevailing party' if it [only] achieves the desired result because the lawsuit brought about a voluntary change in the defendant's conduct." Id. at 601, 121 S.Ct. 1835 (rejecting the so-called "catalyst theory"). Thus, Buckhannon concluded that the repeal of a statute the plaintiff had challenged does not make the plaintiff prevailing. Even though the repeal "perhaps accomplish[ed] what the plaintiff sought to achieve," it merely represents the "defendant's voluntary change in conduct," which lacks a judicial sanction or imprimatur. Id. at 605, 121 S.Ct. 1835. In short, the judicial sanction must be an enforceable entitlement to relief. It must "allo...