Californians for Alternatives to Toxics et al v USFWS et al

Filing 87

ORDER signed by Judge Garland E. Burrell, Jr on 5/8/12 DENYING 74 Motion for Attorney Fees. (Manzer, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CALIFORNIANS FOR ALTERNATIVES
TO TOXICS, a non-profit10/21
corporation; WILDERNESS WATCH, a
non-profit corporation; THE
FRIENDS OF SILVER KING CREEK, a
California non-profit
corporation; LAUREL AMES, an
individual and ANN MCCAMPBELL,
an individual,
Plaintiffs,

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v.

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UNITED STATES FISH AND WILDLIFE
SERVICE; ALEXANDRA PITTS, in her
official capacity; UNITED STATES
FOREST SERVICE; JEANNE M.
HIGGINS, in her official
capacity,
Defendants.
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2:10-cv-01477-GEB-CMK
ORDER*

Plaintiff Californians for Alternatives to Toxins (“CATT”)
moves for $86,299.06 in attorneys’ fees and costs under the Equal Access
to Justice Act (“EAJA”), prescribed in 28 U.S.C. § 2412 et seq.
74.

ECF No.

A memorandum and order was filed on September 6, 2011, in which

Plaintiff was granted summary judgment on its Wilderness Act of 1964
(“Wilderness Act”) claim, and Defendant was granted summary judgment on
Plaintiff’s remaining claims.

ECF No. 65.

Judgment was entered on

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*

argument.

This matter is deemed suitable for decision without oral
E.D. Cal. R. 230(g).
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September 7, 2011.

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Service

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(“USFSW”) oppose the motion.

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justification issue involved in the motion, and for the reasons stated

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below, Plaintiff’s motion is DENIED.

(“USFS”)

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ECF No. 67

and

the

United

Defendants the United States Forest
States

Fish

and

Wildlife

Service

The Court only reaches the substantial

FACTUAL BACKGROUND

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The facts involved with this case are stated in Californians

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for Alternatives to Toxics v. U.S. Fish & Wildlife Service ("CATT"),

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814 F.Supp.2d 992 (E.D. Cal. Sept. 06, 2011), the earlier filed order

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on the parties’ cross-motions for summary judgment.

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court recounts only those facts necessary to provide sufficient

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context for the court’s analysis.

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Therefore, the

Through this lawsuit, Plaintiff sought to set aside the

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Defendants’ decision authorizing the paiute cuthroat trout restoration

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project (the “Project”) in Silver King Creek.

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the Project in order to restore the paiute cutthroat trout ("PCT") to

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its historic range in Silver King Creek, by eradicating non-native

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trout with the pesticide rotenone and restocking the treated area with

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pure PCT.

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generator, to distribute the potassium that would neutralize the

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toxicity of the rotenone downstream.

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Defendants instituted

Defendants selected an auger, powered by a gasoline-powered

Defendants assessed three alternative plans while developing

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the project: the No Action Alternative ("Alternative One"); the

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Proposed Action Alternative ("Alternative Two"); and the Combined

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Physical Removal Alternative ("Alternative Three").

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would have continued previous management of then existing PCT

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populations in Silver King Creek, without introducing new populations

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or efforts to eradicate non-native trout; Defendants concluded that
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Alternative One

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this alternative would not result in direct environmental benefits.

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Alternative Two analyzed the Project at issue in this case, described

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in the preceding paragraph.

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alternative could result in loss of individual macroinvertebrate

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species, potentially including rare or as yet unidentified species

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endemic to Silver King Creek.

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non-chemical techniques (a combination of electrofishing, gill

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netting, seining, and other physical methods) to remove non-native

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trout from the Project area.

The analysis acknowledged that this

Alternative Three proposed using

Defendants estimated the electrofishing

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component would take over ten years to complete, and the

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electrofishing batteries would be recharged with small

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gasoline-powered generators.

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Defendants ultimately selected Alternative Two as “the most

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effective method to remove non-native trout within the PCT historic

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habitat.”

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under the Wilderness Act, “the short term negative effects to the

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‘natural’ wilderness character through introduction of chemical

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pesticide were balanced by the improved long term natural conditions

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of wilderness character through restoration of a native species.”

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at 1021.

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the PCT from the Endangered Species Act's threatened species list.

CATT, 814 F.Supp.2d at 1000.

Id.

Defendants state they enacted the Project in order to remove

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Defendants concluded that,

PROCEDURAL HISTORY
Plaintiffs challenged the Project under the National

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Environmental Policy Act ("NEPA"), the Wilderness Act, the Endangered

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Species Act ("ESA"), the Federal Water Pollution Control Act ("Clean

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Water Act"), the California Environmental Quality Act ("CEQA") and the

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Administrative Procedures Act ("APA"), seeking both declaratory and

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injunctive relief.
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Plaintiffs filed a motion for summary judgment on April 3,

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2011, in which they sought partial summary judgment in their favor on

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their NEPA and Wilderness Act claims.

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filed an opposition and cross-moved for summary judgment on

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Plaintiffs' other ESA, Clean Water Act and APA claims.

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was heard on the motions on August 11, 2011.

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granted Defendants summary judgment on all Plaintiffs’ claims except

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for Plaintiffs’ Wilderness Act claim; and granted Plaintiffs summary

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judgment on that claim.

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On May 5, 2011, USFWS and USFS

Oral argument

Subsequently, the court

Defendants appealed the decision to the Ninth Circuit, ECF
No. 69, but later dismissed the appeal voluntarily.

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ECF No. 72.

STANDARD

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Under the EAJA, a party litigating against the United States

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may recover attorneys’ fees where: “(1) the plaintiff is the

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prevailing party; (2) the government has not met its burden of showing

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that its positions were substantially justified or that special

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circumstances make an award unjust; and (3) the requested attorney's

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fees and costs are reasonable.”

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791, 793 (9th Cir. 2002); 28 U.S.C. § 2412(d)(1)(A).

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award attorneys’ fees under the EAJA is within the sound discretion of

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the district court.

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Perez-Arellano v. Smith, 279 F.3d
The decision to

Pierce v. Underwood, 487 U.S. 553, 563 (1988).
DISCUSSION

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As a prevailing party, Plaintiffs are entitled to attorneys’

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fees “unless the court finds that the position of the United States

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was substantially justified or that special circumstances make an

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award unjust.”

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is substantially justified if it “ha[d] a reasonable basis both in law

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and fact.”

28 U.S.C. § 2412(d)(1)(A). The government’s position

Gutierrez v. Barnhart, 274 F.3d 1255, 1259 (9th Cir.
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2001).

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the main’—that is, justified to a degree that could satisfy a

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reasonable person.” Pierce, 487 U.S. at 565.

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one of objective reasonableness.

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Substantially justified means “‘justified in substance or in

Thus, the standard is

In undertaking this reasonableness calculus, the court

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considers: “first, whether the government was substantially justified

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in taking its original action; and second, whether the government was

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substantially justified in defending the validity of the action in

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court.”

Gutierrez, 274 F.3d at 1258 (citation omitted).

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Plaintiff contends that Defendants had no reasonable basis

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for implementing the project because, as the court held, the project

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“violated the wilderness act by failing to (1) balance competing

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values, (2) determine the most important value, and (3) justify the

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decision to protect that value.

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Essentially, the court held that, while the decision to reinstate the

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PCT to its historical range would contribute to the overall wilderness

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character, the manner in which Defendants chose to implement the

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project—use of a gasoline-powered Auger—failed to take into account

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the effect the project would have on other native species,

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specifically invertebrates, such as stone flies.

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CATT, 814 F.Supp.2d at 1019.

Defendants argue they were substantially justified in both

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implementing the project and in defending it in court.

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point to the fact that, of the assorted claims Plaintiffs asserted,

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under numerous statutes, Plaintiffs only prevailed on an obscure

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portion of their Wilderness Act claim—that defendants did not make

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the requisite showing that the use of the motorized vehicle was

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“necessary to meet minimum requirements for the purpose of [the Act]

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Defendants

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(including measures required in emergencies involving the health and

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safety of persons within the area).”

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16 U.S.C. § 1133(c).

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Defendants were substantially justified in both implementing

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the project and defending it in court.

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ruled that implementation of the Project gave rise to a technical

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violation of the Wilderness Act, it also found Plaintiffs’ other

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arguments unavailing.

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Although the court ultimately

For example, the court concluded that, contrary to

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Plaintiffs’ contention, “the USFS's decision here is persuasive

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in showing that restoration of the PCT to its native habitat is

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contained in the conservation goal of the Wilderness Act, in

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accordance with the Mead standard.”

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The court also found unpersuasive Plaintiffs’ “conten[tion] that

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the Project's benefits to recreational fishing ‘elevate

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recreational activity over the long-term preservation of the

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wilderness character of the land,’ and render it entirely

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contrary to the Act.”

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CATT, 814 F.Supp.2d at 1015.

Id. at 1016.

Ultimately, the court found that Defendants violated

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the Wilderness Act since they failed to demonstrate why the

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extent of the project was necessary, even though “the USFS

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adequately reasoned that motorized equipment was necessary to

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achieve conservation of PCT.”

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that the extent of the project was necessary to ensure that

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restoration of the PCT was completed expeditiously.

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Defendants endured an adverse ruling, it does not necessarily

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follow that Defendants were not substantially justified. Indeed,

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the court recognized that “the Wilderness Act requires a delicate

Id. at 1018.

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Defendants opined

Although

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balancing between Congress’ desire to maintain lands untouched by

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humans and Congress’ recognition that such an idealistic view is

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subject to practical limitations.”

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Wilderness Watch v. U.S. Fish and Wildlife Service, 629 F.3d

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1024, 1033 (9th Cir. 2010)).

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practical nature of the selected alternative—the relative speed

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at which the project could be completed—supported its validity.

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Notwithstanding the court’s disagreement with this opinion,

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reasonable minds could disagree with how the statute should have

Id. at 1017 (quoting

Defendants opined that the

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been interpreted in the situation.

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administrative decision to select the project alternative they

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opined to be the most practical in achieving their goal of

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restoring the PCT was objectively reasonable, and thus, their

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decision substantially justified.

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Therefore, Defendants’

In sum, the court finds that Defendants’ decision

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“ha[d] a reasonable basis both in law and fact.” Gutierrez, 274

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F.3d at 1259. First, Defendants were justified in defending the

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action in court because: (1)

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of reinstating the PCT to its historical position was valid under

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the Wilderness Act; (2) Defendants correctly found that the

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project was necessary; and (3) reasonable minds could disagree as

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to whether the extent of the project was necessary.

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government was justified in taking its original action because

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the Project was a legitimate and expeditious means of restoring

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PCT to its historical range.

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attorney’s fees is denied on the grounds that Defendants’

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implementation of the project and subsequent legal defense of the

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same was substantially justified.

as the court held, Defendants’ goal

Second, the

Therefore, Plaintiff’s motion for

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CONCLUSION
Based on the foregoing, Plaintiff’s motion for attorneys’

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fees is DENIED.

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Dated: May 8, 2012

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GARLAND E. BURRELL, JR.
United States District Judge

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