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Dubois v. Department of Agric.

Citation: 32 ELR 20307
No. No. 98-2364, 270 F.3d 77/(1st Cir., 11/02/2001) Attorneys fees

The court affirms a district court's denial of attorneys fees to an individual who prevailed in his challenge to the U.S. Forest Service's decision to expand a ski area in a national forest. The individual brought suit claiming that the Forest Service's failure to adequately explore reasonable alternatives for additional water for the ski area, specifically the construction of water holding ponds, violated the National Environmental Policy Act. While the Forest Service contended that the construction of the ponds was a practical impossibility, different Forest Service personnel were authorizing the construction of even larger ponds in a different nearby national forest. After obtaining an injunction prohibiting the construction of the expanded ski area, the individual then sought attorney fees, claiming that the Forest Service's actions in the case had been vexatious. The court first holds that the district court properly denied the individual's motion for attorney fees. The district court assessed whether it was objectively reasonable for the Forest Service to have been unfamiliar with the water storage ponds at the nearby ski area, and did not require a finding of subjective bad faith as a necessary precondition to an award of sanctions. Additionally, the individual failed to raise an argument in the district court that the Forest Service should have had better methods of communication in place. Similarly, the individual did not raise the issue of whether the litigators for the Forest Service conducted a reasonable inquiry into the facts in the district court.

[A prior decision in this litigation is published at 27 ELR 20622.]

Counsel for Plaintiff
Roland C. Dubois
Dubois Inc.
1101 30th St. NW, Ste. 500, Washington DC 20007
(202) 333-9191

Counsel for Defendant
Katherine W. Hazard
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Torruella, J. Before Selya and Lisi, * JJ.

* Of the District of Rhode Island, sitting by designation.