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Wilderness Soc'y v. Babbitt

Citation: 23 ELR 21542
No. No. 92-36763, 5 F.3d 383/(9th Cir., 09/17/1993)

The court holds that an environmental group is entitled to attorneys fees under the Equal Access to Justice Act (EAJA) as the prevailing party in litigation in which it claimed that the U.S. Fish & Wildlife Service violated the National Environmental Policy Act (NEPA) by failing to examine the effects of cattle grazing on the Hart Mountain Refuge in Oregon and to disclose its findings in an environmental impact statement (EIS). The group also claimed that the Service violated the National Wildlife Refuge System Administration Act, Executive Order 7523, the Migratory Bird Conservation Act, the Wilderness Act, the Administrative Procedure Act, and Service guidelines by failing to prepare compatibility determinations for grazing on the Refuge and by allowing grazing that was incompatible with the Refuge's purposes. The court first holds that the environmental group's lawsuit was a material or catalytic factor in the Service's decision to prepare an EIS and a compatibility study on the effects of cattle grazing on the Refuge and to prohibit grazing pending their completion. The court next holds that the underlying claim for relief has a basis in law: the Refuge Act requires a compatibility determination before permitting use of a national wildlife refuge; NEPA requires the preparation of an EIS for action that may significantly affect the quality of the human environment; and the environmental group's lawsuit was not frivolous, unreasonable, or groundless. The court further holds that while the government was substantially justified in its litigation position, the government's underlying actions, including its failure to halt grazing on the Refuge prior to 1991, were not reasonably justified. Based on a 1989 report issued by the Refuge Manager indicating that grazing was adversely affecting the Refuge, the Service had a duty to investigate the compatibility of this activity with the Refuge's major purposes.

A dissenting judge would uphold the district court's denial of attorneys fees on the basis that the Service's decision not to prepare an EIS was substantially justified.

[Briefs in this litigation are digested at ELR PEND. LIT. 66256.]

Counsel for Plaintiffs
Victor M. Sher, Adam J. Berger
Sierra Club Legal Defense Fund
705 Second Ave., Ste. 203, Seattle WA 98104
(206) 343-7340

Counsel for Defendants
Andrea N. Ward
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

before Farris and Thompson, JJ.