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Thomas v. Peterson

ELR Citation: 18 ELR 20743
Nos. No. 87-3618, 841 F.2d 332/(9th Cir., 03/10/1988) District court's denial of attorney fees rev'd & remanded

The court holds that plaintiffs are entitled to attorney fees under the Equal Access to Justice Act (EAJA) for work done in connection with a challenge to a Forest Service timber road under the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA). The court first holds that plaintiffs are entitled to fees because the government's underlying conduct and litigation position were not substantially justified under the ESA. In the underlying litigation, the court had held that the Forest Service's failure to prepare a biological assessment of the road's effects on protected species prior to its decision to build it was a substantial violation of the ESA. This implicitly suggests that the government's conduct in failing to prepare the assessment and its litigation position that the failure to do so was a de minimis violation were unreasonable. The fact that the Forest Service prepared a biological evaluation after the decision to build the road was made and after suit was filed is further evidence of the unreasonableness of the government's position. The court also holds that the government's underlying conduct and litigation position were not substantially justified under NEPA. On the merits, this court held that NEPA required that the cumulative impacts of the road and timber sales be assessed before the road was approved. The government's position that sales were too uncertain to justify analyzing their impacts before the road was built was unreasonable since the record indicates that the Forest Service was simultaneously planning the timber sales and the road construction.

The court holds that one of the plaintiff organizations has not demonstrated that it has 500 or fewer employees as mandated by EAJA and directs the district court to determine the organization's eligibility. The court also holds that plaintiffs are prevailing parties under EAJA, since there is a clear causal connection between this court's decision on the merits of plaintiffs' ESA and NEPA claims and the Forest Service's subsequent decision to withdraw the road proposal. Finally, the court declines to rule on whether plaintiffs are entitled to more than $75 per hour or a multiplier, since the district court has not yet addressed these issues.

[The decisions on the merits are published at 14 ELR 20832 and 15 ELR 20225.]

Counsel for Plaintiff-Appellants
Michael Axline
Western Natural Resources Clinic
University of Oregon Law Center, Eugene OR 94703
(503) 686-3823

Counsel for Defendant-Appellee
Maria A. Iizuka
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Before Anderson and Hall, JJ.