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National Wildlife Fed'n v. Federal Energy Regulatory Comm'n

Citation: 19 ELR 20774
No. No. 84-7325, 870 F.2d 542/(9th Cir., 03/16/1989) Attorneys fees awarded

The court holds that two environmental groups are entitled to attorneys fees of $ 125 per hour under the Equal Access to Justice Act (EAJA) for their successful challenge to the Federal Energy Regulatory Commission's (FERC's) issuance of seven preliminary permits under the Federal Power Act (FPA). The court first holds that EAJA § 2412(d)(1)(A) allows attorneys fees in actions for judicial review of agency decisions even when the litigated statute bars costs as does the FPA. The court next holds that the energy and water appropriations bill for fiscal year 1988 does not prohibit an award of attorneys fees to an intervenor. That act prohibited only the use of those appropriated funds for fees, and FERC may use either appropriated funds from fiscal 1989 or other funds to pay any such award. The court holds that petitioners are prevailing parties under the EAJA, since the court held on the merits that FERC had violated the Pacific Northwest Electric Power Planning and Conservation Act (Northwest Power Act). The court holds that fees cannot be recovered for three claims that the court did not reach. The court holds that remand to FERC of petitioners' claim relating to FERC's failure to formulate a comprehensive plan for the Salmon River Basin was insufficient to establish petitioners as prevailing parties because they did not receive any relief on the merits. The court holds that petitioners do qualify as prevailing parties with respect to their claim that FERC violated the Northwest Power Act by its failure to consider the Northwest Power Planning Council's fish and wildlife program. FERC was ordered on remand to fully consider the Council's program when evaluating permit applications affecting the Columbia River and its tributaries. This decision fits the limited exception to the rule that a party who wins a remand or a new trial is not a prevailing party, because the court was enforcing a specific provision of the Northwest Power Act and therefore granted all the substantive relief available. The court holds that FERC's position was not substantially justified because the Northwest Power Act clearly required consideration of the Council's program. The court holds that petitioners are entitled to enhanced fees above the EAJA's cap of $ 75 per hour. The higher rate of $ 125 per hour is justified by the petitioners' showing of the limited availability of counsel with the specialized skills possessed by their attorney. The court declines to award fees for time spent on the claims not reached by the court. Finally, the court holds that petitioners are not entitled to fees for time spent on preparation of the fee award, because the government's opposition was substantially justified.

[The decision on the merits is published at 17 ELR 20111.]

Counsel for Plaintiffs
Terence L. Thatcher
National Wildlife Federation
708 Dekum Bldg., 519 SW Third Ave., Portland OR 97204
(503) 222-1429

Wildrid W. Longeteig
Strom & Longeteig
120 W. Main, Box 155, Craigmont ID 83520
(208) 924-5567

Counsel for Defendants
Joshua V. Rokach
Federal Energy Regulatory Commission
825 N. Capitol St. NE, Washington DC 20426
(202) 357-5200

Before Browning, Alarcon, and Stephens,* JJ.