NW INDIAN CEMETERY PROTECTIVE ASS'N v. Peterson, C-82-4049

• Decision Date: 15 November 1983
• Docket Number: No. C-82-4049,C-82-5943 SAW.,C-82-4049
• Citation: 589 F. Supp. 921
• Parties: NORTHWEST INDIAN CEMETERY PROTECTIVE ASSOCIATION, a nonprofit corporation; Jimmie James; Sam Jones; Lowana Brantner; Christopher H. Peters; Sierra Club, a non-profit corporation; The Wilderness Society, a non-profit corporation; California Trout, a non-profit corporation; Siskiyou Mountains Resource Council, an unincorporated association; Redwood Region Audubon Society, an unincorporated association; Northcoast Environmental Center, a non-profit corporation; Timothy McKay; and John Amodio; Plaintiffs, v. R. Max PETERSON, in his official capacity as Chief, United States Forest Service; John R. Block, in his official capacity as Secretary of the Department of Agriculture; United States Forest Service; and United States of America; Defendants. STATE OF CALIFORNIA, Acting By and Through The NATIVE AMERICAN HERITAGE COMMISSION, Plaintiff, v. John R. BLOCK, in his official capacity as Secretary of the United States Department of Agriculture; R. Max Peterson, in his official capacity as Chief of the Forest Service of the United States Department of Agriculture; Zane G. Smith, Jr., in his official capacity as Regional Forester of the California Region of the Forest Service of the United States Department of Agriculture, Defendants.
• Court: U.S. District Court — Northern District of California

589 F. Supp. 921

NORTHWEST INDIAN CEMETERY PROTECTIVE ASSOCIATION, a nonprofit corporation; Jimmie James; Sam Jones; Lowana Brantner; Christopher H. Peters; Sierra Club, a non-profit corporation; The Wilderness Society, a non-profit corporation; California Trout, a non-profit corporation; Siskiyou Mountains Resource Council, an unincorporated association; Redwood Region Audubon Society, an unincorporated association; Northcoast Environmental Center, a non-profit corporation; Timothy McKay; and John Amodio; Plaintiffs, v. R. Max PETERSON, in his official capacity as Chief, United States Forest Service; John R. Block, in his official capacity as Secretary of the Department of Agriculture; United States Forest Service; and United States of America; Defendants.

STATE OF CALIFORNIA, Acting By and Through The NATIVE AMERICAN HERITAGE COMMISSION, Plaintiff, v. John R. BLOCK, in his official capacity as Secretary of the United States Department of Agriculture; R. Max Peterson, in his official capacity as Chief of the Forest Service of the United States Department of Agriculture; Zane G. Smith, Jr., in his official capacity as Regional Forester of the California Region of the Forest Service of the United States Department of Agriculture, Defendants.

Nos. C-82-4049, C-82-5943 SAW.

United States District Court, N.D. California.

November 15, 1983.

Julie E. McDonald, Michael R. Sherwood, Sierra Club Legal Defense Fund, San Francisco, Cal., Marilyn B. Miles, Michael S. Pfeffer, David J. Rapport, California Indian Legal Services, Eureka, Cal., Edna Walz, Deputy Atty. Gen., State of Cal., Sacramento, Cal., for plaintiffs.

Joseph P. Russoniello, U.S. Atty., Rodney H. Hamblin, Asst. U.S. Atty., Lands Div., San Francisco, Cal., for defendants.

ORDER GRANTING IN PART PLAINTIFFS' MOTION FOR ATTORNEY FEES

WEIGEL, District Judge.

On May 24, 1983, this Court, 565 F.Supp. 586, entered an order permanently enjoining the United States Forest Service from completing construction of a paved road from Gasquet, California to Orleans, California, and from engaging in commercial timber harvesting or constructing logging roads in certain portions of the Six Rivers National Forest until specified conditions are met. The plaintiffs who sought and obtained the injunction now move for attorney fees.¹

I. Plaintiffs' Entitlement to Attorney Fee Awards

Plaintiffs maintain that attorney fee awards in their favor are proper pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(b) and (d), the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, and the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1365(d).

A. Section 2412(d)

Under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A), a court is required to award a prevailing private party meeting specified financial criteria attorney fees and expenses in a non-tort action brought by or against the United States, unless the position of the United States was "substantially justified" or special circumstances make an award unjust. The parties agree that the action did not sound in tort and that all plaintiffs prevailed. Plaintiffs' fee petitions were timely filed, and this Court has jurisdiction to make an award. See 28 U.S.C. § 2412(d)(1)(B). The defendants, however, contend that their position as to each of plaintiffs' claims was "substantially justified," so that a section 2412(d) fee award is inappropriate. See Hoang Ha v. Schweiker, 707 F.2d 1104, 1106 (9th Cir.1983).

Government need not win its case to show that its position was substantially justified. Id. The test of substantial justification is whether the Government's case had a reasonable basis in fact and law. Id.; see H.R.Rep. No. 1418, 96th Cong., 2d Sess. 10, reprinted in 1980 U.S.Code Cong. & Ad.News 4984, 4989; H.Conf.Rep. No. 1434, 96th Cong., 2d Sess. 22 (1980); Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir.1983).

With regard to all points at issue in this case, defendants' position was reasonable. No judicial decision or other authority inevitably signalled the outcome on any claim. Where pertinent law is sparse or ambiguous, the Government is justified in pressing its position to a judicial resolution. See Foster, 704 F.2d at 1112.

That the Government's position was reasonable, if not correct, is further shown by this Court's denial of plaintiffs' motion for a preliminary injunction. See supra note 1. At trial, the defendants introduced substantial and persuasive expert testimony to support their factual contentions. Only an even more persuasive showing by plaintiffs tipped the preponderance of evidence in their favor. In its proposal for development, the Forest Service was sensitive to constitutional concerns stemming from the Establishment Clause of the first amendment and the Equal Protection Clause of the fourteenth amendment. While this Court concluded that the Free Exercise Clause concerns outweigh those cited by the Forest Service, the Government's position on the question was substantially justified. In opposing plaintiffs' environmental claims, the defendants reasonably relied on their prior experience with construction of the G-O Road. This experience did not indicate the type and magnitude of the environmental concerns that would be caused by construction of the proposed addition.

In sum, defendants offered a coherent and reasonable response to each claim on which plaintiffs prevailed. Consequently, the petitions for awards pursuant to section 2412(d) are denied.

B. Section 2412(b)

Under section 2412(b) of the EAJA, a court is empowered to award the prevailing party attorney fees and expenses in an action against the United States in some instances where the position of the Government was substantially justified. The statute provides that "the United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award." 28 U.S.C. § 2412(b). Plaintiffs contend that the United States is liable via section 2412(b) for attorney fees and expenses pursuant to the "common benefit" doctrine of common law and pursuant to two statutes, 42 U.S.C. § 1988 and 33 U.S.C. § 1365(d).

1. Common Benefit Doctrine

A successful litigant can qualify for an award under the equitable common benefit doctrine if he imparts a substantial nonmonetary benefit to an identifiable class of beneficiaries. Southeast Legal Defense Group v. Adams, 657 F.2d 1118, 1122 (9th Cir.1981). The litigant is then entitled to recover attorney fees from the benefited class. Id.

The Supreme Court has acknowledged the existence of the common benefit doctrine as an exception to the common law American Rule against fee awards, but limited its application to situations where the class of beneficiaries is sufficiently identifiable, the benefits can be accurately traced, and the fee can be "shifted with some exactitude to those benefiting." Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 264 n. 39, 95 S.Ct. 1612, 1625 n. 39, 44 L.Ed.2d 141 (1975); see Southeast Legal Defense Group v. Adams, 657 F.2d at 1122-23. Here, plaintiffs urge that the United States should pay fees on behalf of the general public because "the general public benefits by having the constitutional rights of minority groups within society protected, and by having its physical environment protected through enforcement of laws enacted for the public's benefit." The Ninth Circuit, applying Alyeska, has specifically rejected such application of the common benefit doctrine, reasoning that it is impossible to determine with exactitude the extent to which "the general public," as distinguished from some selected elements of the public, should bear the litigation costs. Southeast Legal Defense Group v. Adams, 657 F.2d at 1123; see also Stevens v. Municipal Court, 603 F.2d 111, 113 (9th Cir.1979). The common benefit doctrine therefore does not provide plaintiff with an avenue for recovering fees.

2. 42 U.S.C. § 1988

Plaintiffs cite the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, as a fee-shifting statute that supplies specific authority for a section 2412(b) fee award. Section 1988 provides in pertinent part that

in any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.

The present action was not brought pursuant to any of the named statutes. Thus, as plaintiffs concede, section 1988 does not directly authorize a fee award in their favor. Plaintiffs instead construct an argument based upon the terms of section 2412(b). If a state agency had acted in the same manner as the present federal defendants, the state would have been subject to suit for injunctive relief for redress of an impending first amendment violation pursuant to 42 U.S.C. § 1983, a statute listed in section 1988. Because section 2412 subjects the United States to fees "to the same extent that any other party would be liable," plaintiffs argue that the United States is subject to fees for conduct that, if engaged in by a state, would subject the state to a section 1988 fee award.

Courts have split in their assessment of the interpretation plaintiffs offer. Compare Premachandra v. Mitts, 548 F.Supp. 117 (E.D.Mo.1982) and Lauritzen v. Secretary of the Navy, 546 F.Supp. 1221 (C.D. Cal.1982) (awarding fees) with Venus v. Goodman, 556 F.Supp. 514 (W.D.Wis.1983) and United States v. Miscellaneous Pornographic Magazines, 541 F.Supp. 122 (N.D.Ill.1982) (denying fees). Appellate courts have yet to address the issue. This Court must therefore independently assess the meaning of section 2412(b).

In Lauritzen, the court placed primary emphasis on an...