Native Ecosys. Council v. Weldon
| Decision Date | 28 February 2011 |
| Docket Number | CV 10-43-M-DWM |
| Court | U.S. District Court — District of Montana |
| Parties | NATIVE ECOSYSTEMS COUNCIL, and ALLIANCE FOR THE WILD ROCKIES, Plaintiffs, v. LESLIE WELDON, Regional Forester of Region One of the U.S. Forest Service, UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture, and UNITED STATES FISH & WILDLIFE SERVICE, an agency of the U.S. Department of Interior, Defendants. |
Native Ecosystems Council and Alliance for the Wild Rockies (collectively "Plaintiffs") brought this action against the Regional Forester of Region One, the United States Forest Service ("Forest Service") and the United States Fish and Wildlife Service (collectively "Defendants") challenging the Forest Service'sdecision authorizing implementation of the Elliston Face Hazardous Fuels Reduction Project (the "Project"). The Court dismissed the action without prejudice after Defendants withdrew the challenged decision.
Plaintiffs now move for attorney's fees and costs. They argue they are entitled to fees and costs under the Endangered Species Act ("ESA") because the litigation here was the catalyst to Defendants withdrawing the challenged decision. They seek $12,245.80. Defendants respond that Plaintiffs' ESA claims did not play a catalytic role in withdrawing the decision, and as such fees and costs should not be awarded. For the reasons that follow, the Court finds Plaintiffs are not entitled to their fees and costs.
The Elliston Project calls for the reduction of hazardous fuels on 763 acres of National Forest System lands near the town of Elliston, Montana through a mix of commercial logging, mechanical thinning and other treatments.
The Project has a history of being approved only to then be withdrawn by the Forest Service. The Forest Service first authorized the Project on September 14, 2005 under a categorical exclusion to the National Environmental Policy Act ("NEPA"). Authorization was soon withdrawn after the Forest Service decided the decision should have been subjected to the notice, comment and appealprovisions of NEPA. On March 6, 2006, the District Ranger re-approved the Project. Plaintiff Native Ecosystems Council administratively appealed, and the Forest Service reversed the District Ranger's decision. The Forest Service then approved the project a third time on March 30, 2007. This time Plaintiffs were unsuccessful with their administrative appeals. They filed suit on August 21, 2007. See Alliance for the Wild Rockies v. Harp, CV-07-51-H-DWM. The Project was withdrawn on November 15, 2007, and the related case was dismissed on February 12, 2008.
That brings us to the current, challenged authorization of the Project. On November 28, 2009, District Ranger Duane Harp signed a Decision Notice and Finding of No Significant Impact, re-approving implementation of the Elliston Project.
On May 3, 2010, Plaintiffs sued again challenging Defendants' fourth approval of the Elliston Project. Two of the Complaint's ten claims involve the Endangered Species Act. Claim five alleges the Project "violates [the National Forest Management Act ("NFMA")] and the ESA because it increases road density in the Project area, and the agencies' conclusion that it is 'not likely to adversely affect' the grizzly bear is not based upon the best available science and is arbitrary." Compl. 36. Claim six alleges "[t]he Forest Service is violating NFMAand the ESA because the Project does not comply with the Forest Plan prohibition against degradation of lynx linkage habitat." Id. at 37. The other eight claims sound in either NFMA or NEPA, and are based on allegations that "the Project violates Forest Plan requirements for elk winter range, elk calving areas, elk hiding cover and open road density, lynx habitat connectivity, grizzly bear habitat, and monitoring of population trends of management indicator species." Id. at 4243. Plaintiffs sought declaratory and injunctive relief to set aside the Project's approval.
On July 9, 2010, Defendants filed their answer, denying any violation of NFMA, NEPA or the ESA. Then, on August 20, 2010, District Ranger Duane Harp signed a one-page letter withdrawing the November 28, 2009 decision authorizing the Project.1 The letter did not provide a reason for the withdrawal, but an August 26, 2010 newspaper article quoted Harp explaining that the Projectwas recalled after learning of new data showing it would violate Forest Plan standards for road densities and elk hiding cover. Eve Byron, Elliston Face Logging Plan Goes to Back Burner Again, Helena Independent Record, Aug. 26, 2010 (dkt #13-4). On September 14, 2010, Harp published an editorial that further explained his decision:
I withdrew the Elliston decision because of new data from the state's Transportation Framework Project concerning the number of open roads in the area. The new data, which came to our attention well after the Elliston decision, was used in the analysis for our Hazard Tree Removal Project. That analysis resulted in a different calculation for the Spotted Dog Elk Herd Unit, showing we were not meeting hiding cover standards during hunting season due to the miles of open roads on both private and the National Forest lands in the area that includes the Elliston project.
Duane Harp, Let the Record Speak for Itself, Helena Independent Record, Sept. 14, 2010 (dkt #13-5).
Defendants also submitted Harp's declaration, which states he withdrew the Project decision Harp Decl. ¶ 5, Oct. 12, 2010 (dkt #13-1). Based on the data, the Forest Service's calculation of the open road density for the Spotted Dog Elk Unit changed from.78 to 1.51 miles per square mile. Id. at ¶ 7. This updated calculation exceeded Forest Plan standard 4a. Id.
On September 7, 2010, Plaintiffs moved to voluntarily dismiss their Complaint. (Dkt #9). The Court dismissed the action without prejudice on September 14, 2010. (Dkt #10). On September 28, 2010, Plaintiffs filed the instant motion for attorney's fees. Plaintiffs argue they are entitled to fees and costs pursuant to the ESA's fee-shifting provision because their lawsuit was the catalyst to the Forest Service's withdrawal of approval for the Elliston Project. In response, the government does not dispute that Plaintiffs' litigation played a role in its decision to rescind approval. Instead, they assert approval was withdrawn because of Plaintiffs' NFMA claims and not their ESA claims. Defendants insist that because the ESA claims played no role in the dismissal of this case, Plaintiffs are not entitled to attorney's fees.
Resolution of Plaintiffs' motion turns on two questions, one legal and one factual. Legally, can the Court apply the catalyst theory to Plaintiffs' non-ESA claims to determine if Plaintiffs are entitled to fees and costs under the ESA's fee-shifting provision? Then, if not, did the Forest Service withdraw approval of the Elliston Project independent of Plaintiffs' ESA claims?
The catalyst theory allows for an award of attorney's fees to a civil rights plaintiff whose lawsuit caused defendant's change in conduct, even if the court does not enter a final judgment. Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep't of Health and Human Servs., 532 U.S. 598, 601 (2001).
The Equal Access to Justice Act entitles a "prevailing party" in a NEPA or NFMA challenge to fees and costs. Because the catalyst theory requires something less than a "prevailing party, " the theory cannot be applied to NEPA or NFMA actions. Id. at 605 (); see also Perez-Arellano v. Smith, 279 F.3d 791, 794 (9th Cir. 2002) ().
The catalyst theory is, however, a valid way to collect fees under the citizens suit provision of the ESA, which does not include a "prevailing party" requirement. Assoc. of Cal. Water Agencies v. Evans, 386 F.3d 879, 885 (9th Cir. 2004). Under that provision, "any person may commence a civil suit on his own behalf... against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary." 16 U.S.C. § 1540(g)(1)(C). "The court, in issuing any finalorder in any suit brought pursuant to [the citizen suit provision], may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate." Id. § 1540(g)(4).
Plaintiffs insist that they are entitled to fees and costs under the catalyst theory because their "entire litigation strategy, " which included ESA claims, was to prevent implementation of the Elliston Project and that is what they achieved here. Defendants respond that the catalyst theory can only apply to Plaintiffs' ESA claims, and those claims did not play a role in the withdrawal of approval for the Elliston Project. Thus, Defendants contend, Plaintiffs are not entitled to attorney's fees.
Buckhannon rules out Plaintiffs' NEPA and NFMA claims from being considered under the catalyst theory. As such, it would be inappropriate to consider Plaintiffs' litigation strategy en masse. See Citizens for Better v. U.S. Dep't of Agric., 497 F. Supp. 2d 1062, 1079 (N.D. Cal. 2007), rev'd on other grounds, 567 F.3d 1128 (9th Cir. 2009) (...
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