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United States v. 819.8 Acres of Land

Citation: 28 ELR 21018
No. 96-4134, 133 F.3d 933/(10th Cir., 01/07/1998)

The court holds that developers, who won the release of escrow funds in a condemnation action against the United States, failed to demonstrate that they were financially eligible for an award of attorneys fees under the Equal Access to Justice Act (EAJA). The court first holds that the developers provided no evidence of financial status other than the assertion that the net worth limits of the EAJA were not exceeded. The appendix submitted to the court does not indicate the nature of the developers' response to the government's contention that the developers might not be financially eligible for an EAJA award of attorneys fees. The court next holds that the developers did not satisfy their burden of showing they qualified for a fee award under the EAJA. In the face of a challenge to a party's eligibility for an EAJA award, that party must do more than make a bare assertion that it meets the statutory criteria. The developers, however, did not submit an affidavit or any other kind of proof of their financial status. Given the government's specific challenge to their financial eligibility for an award of fees, this failure meant that the developers did not establish that they met the definition of "party" set out in the EAJA. The court then notes that if it were to address the merits of the appeal, given the material submitted in the appendix, it would also affirm the district court's denial of the application for attorneys fees. Based on the limited information in the record, the district court did not abuse its discretion in determining that the government's position in the condemnation action was substantially justified. Similarly, the district court did not abuse its discretion in finding that additional information provided in the evidentiary hearing satisfied the concerns the court had possessed before the hearing as to the potential threat of mine tailings to the government's proposed reservoir.

Counsel for Plaintiff
Edward Shawaker
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
E. Craig Smay
Law Offices of E. Craig Smay
174 E. South Temple St., Salt Lake City UT 84111
(801) 539-8515

B. Lloyd Poelman
Kirton & McConkie
1800 Eagle Gate Tower
60 E. South Temple St., Salt Lake City UT 84111
(801) 328-3600

Before Ebel and Holloway, JJ.