Oregon Environmental Council v. Kunzman

No. 82-504-RE (D. Or. October 4, 1985)

The court holds that environmental groups that challenged the adequacy of an environmental impact statement (EIS) for gypsy moth eradication programs are prevailing parties under the Equal Access to Justice Act (EAJA), but they are not entitled to attorneys fees because the government's position was substantially justified. The court first holds that plaintiffs are not prevailing parties for the litigation phase that began with plaintiffs' motion for a preliminary injunction and ended with the dismissal of the action for lack of final agency action. The government had prepared an EIS it believed complied with the requirements established by the National Environmental Policy Act. It withdrew the EIS after receiving new information on cancer potential and recommended exposure levels from two federal agencies and comment letters filed after the close of the original comment period. Although the litigation had some effect on the government's decision to supplement the original EIS, it was not the direct cause. The court holds that plaintiffs are prevailing parties for the purposes of the subsequent trial on the adequacy of the supplemental EIS. Although plaintiffs succeeded on only one out of ten claims, the readability of the worst case analysis, this is sufficient to be a prevailing party under EAJA. Plaintiffs obtained a declaration that the EIS was inadequate and an injunction prohibiting reliance on the EIS for the gypsy moth program; this was precisely the relief they sought. The court holds, however, that the government's position in the litigation was substantially justified, and therefore awards no attorneys fees. The question of readability of a worst case analysis was an issue of first impression; prior to this court's ruling, no court had invalidated an EIS on these grounds and only rarely had a court even mentioned the readability requirement. Moreover, the government's experts testified that the document was readable and that decisionmakers could understand it.

[Related cases in this litigation appear at 12 ELR 20766, 20769, 20769; 13 ELR 20901; 14 ELR 20762; 15 ELR 20499, 20503.]

Counsel for Plaintiffs
Larry N. Sokol
Jolles, Sokol & Bernstein
721 S.W. Oak St., Portland OR 97205
(503) 228-6474

John E. Bonine, Michael D. Axline
Pacific Northwest Resources Clinic
University of Oregon Law Ctr., Eugene OR 97403
(503) 686-3823

Ralph Bradley
Bradley & Gordon
1397 Willamette St., Eugene OR 97401
(503) 343-8247

Counsel for Defendants
Charles H. Turner, U.S. Attorney; Thomas C. Lee, Ass't U.S. Attorney
312 U.S. Cthse., 620 SW Main St., Portland OR 97205
(503) 221-2101

Dorothy Burakreis, R. W. Rodrigues, Elizabeth Ann Peterson
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5390

John DiLorenzo Jr., Brendan Stocklin-Enright
DiLorenzo & Dietz
900 SW Fifth, #1700, Portland OR 97204
(503) 225-0010

[16 ELR 20630]

Redden, J.:

Opinion

Plaintiffs seek an award of attorney's fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). I find that plaintiffs are prevailing parties under EAJA. I also find that the government's position in this litigation was substantially justified and therefore deny plaintiffs' petition.

Background

This litigation was originated in 1982 when plaintiffs challenged the adequacy of the Environmental Impact Statement (EIS) covering federally assisted state gypsy moth eradication programs. Plaintiffs sought an injunction prohibiting the aerial broadcast spraying of chemical pesticides. I determined that the EIS was legally adequate and the spraying programs proceeded.

In Oregon Environmental Council v. Kunzman, 714 F.2d 901 [13 ELR 20901] (9th Cir. 1983) the Court of Appeals held the EIS was legally inadequate, and remanded the case for further proceedings. In response to the Ninth Circuit's ruling, on January 26, 1984 I enjoined defendants "from implementing any program for aerial broadcast spraying . . . until they prepare a legally adequate environmental impact statement which fully discusses the risks, effects and benefits of such a program." No. 82-504 Order at 1 (D. Or. Jan. 26, 1984).

In March 1984 defendants issued a new EIS in an attempt to comply with the court's order. On May 2, 1984 plaintiffs filed a motion for a temporary restraining order (TRO) and preliminary injunction seeking a nationwide injunction against the use of any chemical application of synthetic pesticides. In support of this motion plaintiffs alleged that the March 1984 EIS was legally inadequate. After a series of delys, the hearing on the injunction was set to commence on September 25, 1985. However, on August 17, 1985 defendants withdrew the EIS in order to supplement it. Defendants then moved to dismiss the action on the grounds that the court lacked jurisdiction because there was no final agency action. I granted defendants motion on November 20, 1984, but retained jurisdiction "in order to review the legal sufficiency of the supplemental PEIS when . . . published in its final form." No. 82-504, Order at 5 (D. Or. Nov. 20, 1984).

The supplemented EIS was issued on March 14, 1985, and a three day trial commenced on the adequacy of the document on April 15, 1985. I issued an opinion on April 26, 1985 finding that the main text of the EIS was legally adequate in all respects, but that the worst case analysis contained in Appendix F of the document violated the readability requirement in 40 C.F.R. § 1502.8. On that date I issued an injunction prohibiting defendants from performing any aerial broadcast spraying of synthetic pesticides for gypsy moth eradication effective immediately in Oregon, and on January 1, 1986 on a nationwide basis.

Discussion

Plaintiffs suggest that for ease of analysis I view this litigation in three phases. Phase I would be that period encompassing the original trial and appeal, phase II would cover the time between the filing of the TRO motion and the court's order dismissing the action on November 4, 1984, and phase III would be that time after the dismissal and the present. I will adopt plaintiffs' suggestion and now consider their application for attorney's fees and costs for phases II and III of this litigation.

Plaintiffs seek an award of attorney's fees under EAJA. This Act expired in 1984, but was re-enacted on August 5, 1985 with retroactive effect. Plaintiffs are relying on § 2412(d)(1)(A) of the Act, which provides:

A court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States . . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

That section was not amended or changed when EAJA was re-enacted. Thus, a prevailing party is entitled to an award of attorney's fees unless the government can prove that its position was "substantially justified or that special circumstances make an award unjust." Id. I must first determine if plaintiffs are "prevailing parties" within the statutory scheme.

Plaintiffs argue that they should be awarded attorney's fees and costs for phase II of the litigation because the 1984 EIS was woefully inadequate as published, and that but for this litigation that EIS would not have been withdrawn and supplemented resulting in a much more satisfactory document. Plaintiffs argue that the supplement corrected those areas of the 1984 EIS challenged in the lawsuit, and that the EIS was withdrawn on the eve of the trial. Plaintiffs state that this "amazing coincidence" proves that they were directly responsible for the improvement in the 1985 document and they are thus "prevailing parties" in phase II.While I find this argument has some merit, it does not convince me that plaintiffs have established that they are the prevailing party.

Defendants state that the decision to withdraw and supplement the 1984 EIS was not forced by this litigation. Rather, defendants state, that decision was made because of the availability of new information from various sources. For example, the issuance by the Environmental Protection Agency of new registration standards for carbaryl, new data from FDA market basket studies regarding the potential of exposure of the public to the pesticides from food crops, new information on cancer potential of trichlorofon, new information regarding the mutagenic potential and tetrogenicity of the pesticides and comment letters filed after the close of the original 45-day comment period. All of these sources of new information are listed on page 2 of the Supplement. Moreover, the comment letters are included in the final EIS and addressed therein.

I find that although this litigation certainly had some effect on the government's decision to supplement the 1984 EIS, it was not the cause for the supplementation. The government drafted a document it thought complied with NEPA standards. Thereafter, it received information from various sources outlining the deficiencies of the document and it then withdrew that EIS in order to correct those shortcomings. Thus, I find that plaintiffs are not prevailing parties for this portion of the litigation, and decline to award them attorney's fees for phase II.

In phase III of the litigation plaintiffs challenged the supplemented EIS on numerous grounds, one of which was that the document could not be easily read and understood by the general public and decisionmakers, and thus was in violation of 40 C.F.R. § 1502.8. I ruled in favor of defendants on all issues, except the readability issue. Defendants argue that plaintiffs are not prevailing parties because they were victorious on only one out of ten asserted claims. I do not agree.

A party who prevails on an important matter in the litigation, even through not prevailing on all issues, can be considered a "prevailing party" for the purposes of EAJA. McQuiston v. Marsh, 707 F.2d 1082, 1085 (9th Cir. 1983). All plaintiffs need to show is that they achieved at least some benefit on any significant issue in the action. Sethy v. Alameda County Water District, 602 F.2d 894, 897-98 (9th Cir. 1979), cert. denied, 444 U.S. 1046 (1980).

Plaintiffs sought to enjoin defendants from spraying chemical pesticides pursuant to the 1985 EIS which they claimed did not disclose to the public and decisionmakers all information concerning the synthetic pesticides and did not do so in an understandable manner. On this endeavor they prevailed. It does not matter that the court did not agree with plaintiffs on each one of their challenges. Rather, it is important only that plaintiffs achieved the relief they sought; a declaration that the EIS was inadequate and an injunction prohibiting reliance on the EIS in federally assisted gypsy moth eradication programs. Thus, plaintiffs are prevailing parties under EAJA for phase III of the litigation.

Once it has been established that plaintiffs are prevailing parties, I must award them attorney's fees, unless I find that the government's position was substantially justified. The test of whether or not the government's position was substantially justified is essentially one of reasonableness. Foster v. Tourtelotte, 704 F.2d 1109, 1112 (9th Cir. 1983). The legislative history of EAJA states that where the government can show that its position was supported in both law and fact, then it can be said that it was substantially justified in litigating the issue. H.R. Rep. No. 1418, 96th Cong., 2d Sess. 10-11, reprinted in 1980 U.S. Cong. & Ad. News 4984, [16 ELR 20631] 4989-90. In applying the reasonableness standard I am to look at the "totality of the circumstances." Timms v. United States, 742 F.2d 489 (9th Cir. 1984); Rawlings v. Heckler, 725 F.2d 1192, 1196 (9th Cir. 1984).

The government argues that its position was substantially justified because there was no clear adverse precedent. The government states that the issue upon which plaintiffs prevailed was one of first impression and that it was therefore fully justified in defending the EIS against plaintiffs readability claim. Moreover, the government notes, its experts all testified at trial that the document was readable and capable of being understood by decisionmakers, and this further emphasized its justification for defending the EIS against that issue. As to the other challenges raised by plaintiffs, the government states it prevailed on nine out of ten of them and it was certainly justified in defending against those challenges. I find both of the government's arguments to be persuasive.

In my April 26, 1985 Opinion I noted that the case law applying 40 C.F.R. § 1502.8 was sparse and that "no court . . . [had] ever invalidated an EIS on the grounds that the document was not 'readily understand[able] by the public and decisionmakers." __ F. Supp. __, (D. Or. 1985). The disposition of prior cases raising the same legal issues is pertinent in determining whether the government's position was substantially justified. Hoang Ha v. Schweiker, 707 F.2d 1104, 1107 (9th Cir. 1983). Where applicable case law is sparse or ambiguous the government may be justified in seeking judicial resolution of the issue. Foster v. Tourtellotte, 704 F.2d at 1112. See also Northwest Indian Cemetery Protective Association v. Peterson, 589 F. Supp. 921, 923 (D.C. Cal. 1983).

I find that the government's position was substantially justified here because the EIS was found to be legally inadequate pursuant to 40 C.F.R. § 1502.8, and no court had previously invalidated an EIS on those grounds. Prior to my decision, the courts had rarely even mentioned the readability requirement, and then only in dicta.Accordingly, the government was justified in defending the EIS against plaintiffs' readability challenge. Moreover, the government's experts, when questioned on the readability issue at trial, all stated that they felt the document to be understandable and that they had so informed the government.

Conclusion

Plaintiffs have established that they are prevailing parties under EAJA. However, I find that the government's position was substantially justified, and I therefore decline to award plaintiffs attorney's fees pursuant to 28 U.S.C. § 2412(d)(1)(A).