p>This case stems from a suit brought by an environmental
non-profit organization, the Environmental Protection Information Center
(EPIC), against the defendants, Pacific Lumber Company and the Fish and
Wildlife Service (FWS). The suit challenged Pacific Lumber's timber harvest
plan under two sections of the Endangered Species Act (ESA).
name="_ednref1" title="">[1] The
section 7 claim alleged that FWS failed to prepare a biological opinion as
required for "agency actions"
that Pacific Lumber, in cooperating with FWS, had "assumed responsibility for
compliance with federal laws governing the actions" of FWS.
title="">[3] EPIC's
other claim argued that the proposed logging would "take" marbled murrelets in
violation of section 9 of the ESA.[4]
Initially, the suit bounced up and down between the district court and the Ninth Circuit because Pacific Lumber questioned the grounds on which EPIC based its section 7 claim. The district court entered a preliminary injunction in favor of EPIC on the section 7 claim,[5] but the Ninth Circuit reversed because EPIC "had not raised any serious question."[6] In response, the plaintiffs added another section 7 claim. The district court once again entered a preliminary injunction and was again reversed by the Ninth Circuit for similar reasons.[7] Finally, on remand, the district court granted summary judgment in favor of Pacific Lumber on the section 7 claims, and EPIC voluntarily dismissed its remaining claim. Following summary judgment, Pacific Lumber moved for attorney's fees under section 11 of the ESA,[8] claiming that EPIC's section 9 suit had initially been frivolous and that EPIC continued to litigate the suit without supporting evidence. Section 11 allows attorney's fees "to any party" whenever "appropriate."[9] The district court denied the motion, concluding that Pacific Lumber did not meet either of two standards allowing attorney's fees.[10] Pacific Lumber appealed.
The Ninth Circuit affirmed the district court's decision and held that 1) the appropriate standard for attorney's fees under the ESA should be the standard used in civil rights cases, and 2) the district court did not abuse its discretion in refusing to award Pacific Lumber attorney's fees because EPIC's section 9 claim was neither frivolous when filed nor frivolous while EPIC continued to litigate the claim.
First, the court examined two standards governing attorney's fees. The Carson-Truckee standard[11] allows the district court to award attorney's fees to the prevailing defendants "only if the party has substantially contributed to the goals of the [ESA]."[12] The Christiansburg civil rights standard,[13] as applied in Razore v. Tulalip Tribes of Washington,[14] allows defendants attorney's fees for claims under the Clean Water Act (CWA)[15] and the Resource Conservation and Recovery Act (RCRA)[16] when a plaintiff's cause of action is frivolous.
The Ninth Circuit resolved to apply the Christiansburg standard instead of the Carson-Truckee standard because a subsequent Supreme Court decision indicates that the Carson-Truckee standard, as applied to the ESA, is no longer good law. In Pennsylvania v. Delaware Valley Citizen's Council (Delaware Valley),[17] the Supreme Court applied the Christiansburg standard to an environmental statute. It determined that the attorney's fees provisions of the Civil Rights Act and the Clean Air Act had "nearly identical" purposes and therefore should be interpreted similarly.[18]
In the instant case, the Ninth Circuit followed the same approach and compared the attorney's fees provisions of the Civil Rights Act with those of the ESA. Legislative history behind the civil rights attorney's fees provision[19] indicates that the provision was intended to prevent frivolous or unjustified suits.[20] Examining the legislative history of section 11 of the ESA reveals a similar purpose: Congress intended to award "fees only if the purpose of the suit was harassment."[21] Following the precedent of Delaware Valley, the court applied the civil rights standard to the ESA.
Second, the court explained that under the Christianburg standard, a prevailing defendant may receive attorney's fees either if the suit was frivolous when filed or if the "plaintiff continued to litigate the suit after it clearly became frivolous."[22] The court determined that neither of these two conditions had been met. Because EPIC based its suit on an expert witness' testimony, the suit was not frivolous when filed. Continuing to litigate the suit had also not been frivolous: "a case is not automatically meritless merely because the plaintiff eventually lost its case."[23] Evidence showed that the litigation may have influenced Pacific Lumber's decision on helicopter logging, while no evidence suggested that EPIC was or should have been on notice that the suit was frivolous. Accordingly, the Ninth Circuit upheld the application of the Christiansburg standard to attorney's fees provisions in environmental statutes.
[11] Carson-Truckee Water Conservancy Dist. v. Secretary of the Interior (Carson-Truckee), 748 F.2d 523 (9th Cir. 1995).
[12] Marbled Murrelet v. Babbitt, 182 F.3d 1091, 1094 (9th Cir. 1999) (citing Carson-Truckee, 748 F.2d at 525-26).
[13] Christiansburg Garment Co. v. Equal Employment Opportunity Comm'n (Christiansburg), 434 U.S. 412 (1978).
[16] Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901-6992k (1994 & Supp. III 1997) (amending Solid Waste Disposal Act, Pub. L. No. 89-272, 79 Stat. 992).
[21] Marbled Murrelet v. Babbitt, 182 F.3d 1091, 1095 (9th Cir. 1999) (citing 1972 U.S.C.C.A.N. 4234, 4249-50). One difference between the two provisions is that the ESA does not require that the party moving for attorney's fees must be the prevailing party while section 1988 does so require. However, this difference is irrelevant because the Supreme Court has interpreted the ESA to require that the prevailing party be the one that moves for attorney's fees. Ruckelshaus v. Sierra Club, 463 U.S. 680, 682 & n.1 (1983).
