Home » Case Summaries » 2004 » Association of California Water Agencies v. Evans

 
 

Association of California Water Agencies v. Evans

 

Topics:

Fishing and state water agency associations brought an action alleging that the National Marine Fisheries Service (NMFS) violated the Endangered Species Act (ESA)[1] by not carrying out the proper economic impact analysis before designating certain lands as critical habitats. Settlement of a related action involving the National Association of Homebuilders (NAHB) vacated NMFS’s final rule designating critical habitat, mooting the plaintiffs’ action. The plaintiffs moved for attorney fees under the fee-shifting provision of the ESA, and the district court granted the motion. The defendants appealed the attorney fee award. The Ninth Circuit affirmed the district court opinion awarding attorney’s fees under the ESA.

NMFS designated lands in California and the Pacific Northwest as critical habitats for endangered species. The plaintiffs alleged the defendants violated the ESA requirement that the Secretary of Commerce balance economic effects against potential benefits before designating areas as critical habitats.[2] The defendants settled the NAHB case, entering into a consent decree to vacate and remand its final rule regarding designation of critical habitats before the district court ruled on the plaintiff’s summary judgment motion. The consent decree rendered the plaintiffs’ case moot and the plaintiffs moved for attorney’s fees under the ESA’s fee-shifting provision, which allows a court to “award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.”[3] The district court granted the plaintiffs’ motion, awarding $304,530 in attorney’s fees and $13,211.26 in costs. The defendants appealed the award to the Ninth Circuit, which reviewed factual determinations for clear error and reviewed de novo the fee determination.

The defendants contended that the plaintiffs’ action was brought under the Administrative Procedure Act[4] because defendants had a discretionary duty to conduct an economic impact analysis, rather than a required duty under the ESA. The Ninth Circuit held that the plaintiffs’ action was brought under the ESA. Citing the Supreme Court’s decision in Bennett v. Spear,[5] the court ruled that the suit fell under the fee-shifting provision of the ESA because the statute, despite leaving some room for discretion, fundamentally required defendants to consider economic impact when designating critical habitats.[6] The plaintiffs alleged that the defendants did not perform their duty to conduct an adequate economic analysis under 16 U.S.C. § 1533(b)(2). In particular, the plaintiffs took issue with the defendants “incremental effects” analysis, in which the designation of a critical habitat was found to have no economic impact if the only discernible impact came from the listing of a species as endangered, rather than from the designation of a critical habitat. The plaintiffs asserted that their action was “a catalyst in bringing about Defendants’ changed interpretation of [§] 1533(b)(2) and the remand of the designations.”[7] Because the action was brought under the ESA, the Ninth Circuit held that the ESA’s fee-shifting provision was applicable to the parties in this case.

In applying the ESA’s fee-shifting provision, the Ninth Circuit considered the Supreme Court’s interpretation of that provision. According to the Supreme Court, the provision is inclusive, allowing fee awards for “partially prevailing parties–parties achieving some success, even if not major success.”[8] The defendants, however, relied on Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources (Buckhannon).[9]

In Buckhannon, the Supreme Court limited the definition of “prevailing party” in cases under the Fair Housing Amendments Act[10] and Americans with Disabilities Act[11] to those who had obtained some form of judicial relief, rather than the plaintiffs who had acted as a catalyst to bring about a desired result.[12] The Ninth Circuit rejected the defendants’ assertion that the Buckhannon decision precluded the plaintiffs’ use of the catalyst theory under the ESA’s fee-shifting provision because the plaintiffs were not a “prevailing party.” Relying on the Eleventh Circuit’s interpretation of Buckhannon in Loggerhead Turtle v. County Council of Volusia County,[13] the Ninth Circuit held that, although the catalyst theory could not be applied to statutes allowing fee shifting for a “prevailing party,” the catalyst theory could be used under statutes such as the ESA, which allow fee shifting “whenever the court determines such award is appropriate.”[14]

The Ninth Circuit gave three reasons for this determination: 1) “there [was] clear evidence” of Congressional intent to make fee shifting available under a “whenever . . . appropriate” statute when a plaintiff’s goals were advanced by an action; 2) Buckhannon focused on the “prevailing party” wording in the statutes the Supreme Court then considered, but did not mention “whenever . . . appropriate” statutes such as the ESA; and 3) the Supreme Court’s stated policy reasons for precluding the catalyst theory under “prevailing party” statutes included the desire to prevent defendants from making voluntary changes to avoid attorney fees, while such changes are the goal of citizen suits under the ESA, which allow only equitable relief.[15]

Finally, the Ninth Circuit held that the district court acted within its discretion in finding that the plaintiffs’ action acted as a catalyst in the settlement of the NAHB case, and did not award excessive or unreasonable fees to the plaintiffs. The defendants argued other events contributed to the voluntary remand of the Final Rule, and the district court’s finding was clearly erroneous. The Ninth Circuit, however, held it was reasonable for the district court to find the plaintiffs’ action had a causal relationship to the voluntary remand of the Final Rule. The defendants also argued that the fee award to the plaintiffs was “excessive and unreasonable.”[16] The Ninth Circuit, however, held that the plaintiffs’ time records adequately supported the fee amount awarded. In conclusion, the Ninth Circuit affirmed the attorney fees and costs awarded by the district court.


[1] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2000).

[2] Id. § 1533(b)(2).

[3] Id. § 1540(g)(4) (emphasis added).

[4] Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

[5] 520 U.S. 154, 172 (1997).

[6] 16 U.S.C. § 1533(b)(2) (2000).

[7] Ass’n of Cal. Water Agencies v. Evans, 386 F.3d 879, 884 (9th Cir. 2004).

[8] Ruckelshaus v. Sierra Club, 463 U.S. 680, 688 (1983) (emphasis in original).

[9] 532 U.S. 598 (2001).

[10] Fair Housing Amendments Act of 1988, 42 U.S.C §§ 3601, 3610-3614 (2000).

[11] Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12102, 12111-12117, 12131-12134, 12141-12150, 12161-12165, 12181-12189, 12201-12213, 47 U.S.C. 225 (2000).

[12] Id.; Buckhannonon, 532 U.S. at 601.

[13] 307 F.3d 1318 (11th Cir. 2002).

[14] 16 U.S.C. § 1540(g)(4) (2000); Loggerhead Turtle, 307 F.3d at 1325.

[15] Loggerhead Turtle, 307 F.3d at 1325-26.

[16] Evans, 386 F.3d at 887.

Print this pageEmail this to someoneTweet about this on TwitterShare on Facebook

Comments are closed

Sorry, but you cannot leave a comment for this post.