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Friends of the Boundary Waters Wilderness v. Thomas

ELR Citation: 26 ELR 20253
Nos. Nos. 94-1794, -1936, 53 F.3d 881/(8th Cir., 04/14/1995) attorney fees

The court holds that environmental groups are entitled to attorney fees under the Equal Access to Justice Act (EAJA) following a successful challenge to the continued use of motorized portages in the Boundary Waters Canoe Area Wilderness and to an increase in the sale of below-cost timber under the land and resource management plan (LRMP) for the Superior National Forest in Minnesota. The court first holds that the U.S. Forest Service failed to show that its position—that "feasible," within the meaning of the act providing for the operation of motor vehicles to aid in boat portages only if there are no "feasible" nonmotorized means, means "reasonable," "practicable," or "likely"—was reasonable and well-founded in law and fact, and that the district court abused its discretion in concluding that the Forest Service was substantially justified so as to preclude an award of attorney fees for that portion of the litigation. The court unequivocally rejects as contrary to existing law and clear congressional intent the Forest Service's position. Moreover, the Forest Service first determined that "feasible" meant "possible," not "ideal" or "most practical," but later revised its interpretation in light of the factual findings in a portage report. The court holds that the Forest Service was not substantially justified in abandoning its original interpretation. The question before the Forest Service was one of statutory interpretation, and should not have turned on the outcome and findings of a feasibility study, but rather on existing law and congressional intent.

The court next holds that the district court erred in concluding that the Forest Service waived any objections to the groups' standing to sue to prevent an increase in below-cost timber sales by settling the case. The court holds, however, that affidavits submitted by the environmental groups sufficiently establish the three elements of standing. The affidavits contain allegations of the injuries that would result from the LRMP's proposed increase in below-cost timber sales and the district court adopted a magistrate's finding that the expanded timber sales would damage tree species and age class diversity. Moreover, the affidavits assert that the injuries would be redressed by returning below-cost timber sales to their pre-LRMP levels. Turning to the Forest Service's argument that the district court erred in awarding fees for time spent in the administrative appeal process, the court holds that there is no basis for extending the holding in Sullivan v. Hudson, 490 U.S. 877 (1989), to this case, because this case involves administrative proceedings that preceded the civil action, rather than postlitigation administrative procedures crucial to the vindication of an EAJA applicant's rights. Because the EAJA amounts to a partial waiver of the government's sovereign immunity, it must be strictly construed in the government's favor. Accordingly, Hudson's interpretation of the EAJA to allow recovery of attorney fees for postlitigation administrative procedures should be narrowly applied. The court thus holds that the district court abused its discretion in holding that the preceding administrative proceedings were crucial to the vindication of the environmental groups' rights in this case and that the environmental groups are not entitled to attorney fees for the time spent in administrative appeals before filing suit.

[A previous decision in this litigation is published at 23 ELR 20518. Pleadings in this action are digested at ELR BRIEFS & PLEADS. 66367.]

Counsel for Appellants
Richard A. Duncan
Faegre & Benson
2200 Norwest Ctr., 90 S. 7th St., Minneapolis MN 55402
(612) 336-3000

Counsel for Appellees
Peter A. Appel
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before MCMILLIAN, Circuit Judge, LAY and JOHN R. GIBSON, Senior Circuit Judges.