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Friends of the Nestucca v. Slater

ELR Citation: 28 ELR 20031
Nos. 96-35081, 124 F.3d 211/(9th Cir., 09/11/1997)

The court affirms a district court's denial of attorney fees to an environmental group whose lawsuit challenging the adequacy of a Federal Highway Administration (FHwA) environmental assessment (EA) was not a material factor in the FHwA's decision to supplement the EA. The court first holds that the lawsuit filed by the environmental group was ripe at the time the case was filed although its ripeness was later defeated when the environmental group obtained the relief it desired due to the FHwA's supplementation of its original EA. When jurisdiction exists at the beginning of the lawsuit, but is later defeated by settlement, or by the prevailing party obtaining the relief it desires, the case has potential, but lacks actual, jurisdiction, and attorney fees are permitted.

The court next holds that the district court was not in error when it held that the environmental group was not a prevailing party in the lawsuit. The environmental group must establish a clear, causal relationship between its litigation and the FHwA's decision by showing that the lawsuit was at least a material factor in the FHwA's decision, and the environmental group may rely only on the effects of the lawsuit itself, not pre-litigation efforts. The court relies on case law in deciding to uphold the district court's decision that the more persuasive version of events was presented by the FHwA, which asserted that its decision to reconsider and later supplement the EA was, in part, the result of landslides occurring after the original EA had been prepared, but before the environmental group's suit. The court found both the FHwA's and environmental group's versions of events to be plausible and found no extraordinary circumstances in this case that would cause it to disturb the district court's decision.

Counsel for Plaintiff
Marianne Dugan
Western Environmental Law Center
1216 Lincoln St., Eugene OR 97401
(541) 485-2471

Counsel for Defendant
Robert L. Klarquist
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530

Before Fletcher, Tashima, and Schwarzer,* JJ.