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Marbled Murrelet v. Babbitt

ELR Citation: 29 ELR 21326
Nos. No. 98-15788, 182 F.3d 1091/(9th Cir., 07/07/1999) attorney fees denied

The court holds that a prevailing logging company was not entitled to attorney fees in a lawsuit brought by an environmental group under the Endangered Species Act (ESA). The court first holds that it will only allow attorney fees to a prevailing defendant if the plaintiff's action was frivolous. The U.S. Supreme Court has indicated that attorney fees provisions in environmental statutes with similar language and purpose as the attorneys fees provisions in the Civil Rights Acts should be interpreted the same way. Given the similarity in language and purpose between the attorney fees provisions of the Civil Rights Acts and the ESA, the civil rights standard of frivolousness applies. The court next holds that even though the group's ESA §9 claim was brought with limited evidential support, it was not frivolous. Most of the possible evidence was located on the logging company's private land, and the group's decision to sue was based on an expert's opinion about the potential effects of logging.

The court also holds that the logging company was not entitled to fees even though the group continued to litigate the suit without supporting evidence. The group's litigation may have contributed to the logging company's decision to abandon helicopter logging. Moreover, the logging company does not point to any evidence developed during the course of litigation that should have put the group on notice that its suit was frivolous.

[Prior decisions in this litigation are published at 26 ELR 20992 and 27 ELR 21141.]

Counsel for Plaintiffs
Thomas N. Lippe
Law Offices of Thomas N. Lippe
Steuart Tower
One Market Plaza, 16th Fl., San Francisco CA 94105
(415) 777-5600

Counsel for Defendants
Jared G. Carter
Rawles, Hinkle, Carter, Behnke & Oglesby
169 Mason St., Ste. 300, Ukiah CA 95482
(707) 462-6694

Before Reinhardt and Silverman, JJ.