WildEarth Guardians v. Salazar

Filing 56

Memorandum Opinion and ORDER denying 47 Plaintiff's Motion to Recover its Reasonable Attorney Fees, by Judge John L. Kane on 2/14/12.(gmssl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane

Civil Action No. 10-cv-00036-AP
WILDEARTH GUARDIANS,
Plaintiff,
v.
KEN SALAZAR, in his official capacity as Secretary, U.S. Department of the Interior,
Defendant.

MEMORANDUM OPINION AND ORDER
Kane, J.
This matter is currently before me on Plaintiff’s Motion to Recover its Reasonable
Attorneys Fees (doc. 47). Based on the forthcoming discussion, Plaintiff’s motion is DENIED.
BACKGROUND
This controversy arises from Plaintiff’s first petition to list Capnia arapahoe (the
Arapahoe Snowfly) as threatened or endangered under the Endangered Species Act (“ESA”). In
that petition, Plaintiff sought listing for the Arapahoe Snowfly and 205 other species in the U.S.
Fish and Wildlife Service’s Mountain-Prairie Region. The petition contained limited
information on the Arapahoe Snowfly and the other species, relying instead on its incorporation
by reference of analysis, references, and documentation provided in a third-party database.
Pursuant to its responsibilities under the ESA, Defendant’s designee the United States
Fish & Wildlife Service (“FWS”) reviewed the petition and the information contained in the
cited database. Although it found the database described numerous threats to the general area
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inhabited by the Arapaho Snowfly, FWS found that neither the petition nor the database linked
those threats to the Arapaho Snowfly or its habitat. 74 Fed. Reg. 6122, 6124. Accordingly,
FWS found that Plaintiff had failed to present substantial scientific or commercial information
indicating that listing of the snowfly might be warranted and denied Plaintiff’s petition.
On January 8, 2010, Plaintiff filed the instant suit challenging FWS’s denial of the listing
petition and seeking a variety of relief: a declaration that Defendant’s refusal to consider listing
the Arapaho Snowfly was unlawful, an injunction requiring Defendant to withdraw his unlawful
decision and to issue a new finding by a date certain, and an order awarding its costs and
attorney fees.
While its challenge to Defendant’s denial of its first listing petition was pending, Plaintiff
joined a second petition to list the Arapaho Snowfly. Filed on April 6, 2010, this second petition
included extensive discussion of the Arapaho Snowfly, its habitat, and threats thereto. After
reviewing this information, the FWS determined that listing of the Arapaho Snowfly might be
warranted and on April 25, 2011, announced its intention to undertake a more thorough review
of the Arapaho Snowfly to determine whether it merited protection under the ESA.1
Based on this determination and FWS’s agreement to conduct its review of the Arapaho
Snowfly in a timely manner,2 Plaintiff agreed to voluntarily dismiss its challenge to Defendant’s
denial of the first listing petition, and the parties jointly filed a Stipulated Motion for Dismissal
without prejudice, pursuant to Fed. R. Civ. P. 41(a)(2). In their stipulation, the parties

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Although FWS was required, “to the maximum extent practicable,” to make this
determination within 90 days, see 16 U.S.C. § 1533(b)(3)(A), it informed Plaintiff and the other
petitioners that it was precluded from doing so by its obligation to make determinations on a
number of other species of higher priority.
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FWS agreed to conduct its review of the petition to list the Arapaho Snowfly in a
timely manner in an unrelated Multi-District Litigation settlement agreement. See In Re
Endangered Species Act Section 4 Deadline Litigation, D.D.C. Misc. Action No. 10-377 (EGS).
Although the parties discuss the MDL settlement at length, it is largely irrelevant to resolution of
the instant motion.
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expressly reserved their right to contest whether Plaintiff is entitled to attorney fees under the
ESA’s fee-shifting provision. See 16 U.S.C. § 1540(g)(4).
ANALYSIS
The Endangered Species Act does not limit the award of attorney fees and costs to a
“prevailing party.” Instead, the ESA authorizes an award of fees and costs to “any party,
whenever the court determines such award is appropriate.” 16 U.S.C. § 1540(g)(4). This
seemingly unfettered discretion is not, however, without limits. Indeed, it would be
inappropriate to award a party its fees and costs absent some evidence of success on the merits.
See Center for Biological Diversity v. Norton, 262 F.3d 1077, 1080 (10th Cir. 2001). This
standard begs the question: what constitutes success on the merits? Although it has not
definitively addressed the issue, the Tenth Circuit has applied the “catalyst” test in determining
whether a party qualifies for an award of fees under the ESA. See id.
The catalyst test requires Plaintiff to establish two elements: 1) a causal connection
between its challenge to Defendant’s denial of its first listing petition and FWS’s determination
that the second listing petition warranted further review; and 2) FWS’s positive resolution of the
second listing petition was required by law. Because consideration of the first element proves
dispositive, there is no need to discuss whether the benefit achieved was required by law.
Plaintiff urges that its challenge of Defendant’s denial of the first petition was the catalyst
for FWS’s decision that the second petition merited further review. In support of this argument,
Plaintiff cites the chronology of events, namely Defendant’s positive resolution of the second
petition after Plaintiff filed suit over his denial of the first petition and Defendant’s continued
defense against Plaintiff’s challenge to the denial of the first listing petition. This argument
ignores the differences and distinctions between these petitions.
The first petition addressed 206 different species and included limited information on
each species, including the Arapaho Snowfly. Although it incorporated by reference significant

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information contained in a third-party database, FWS determined neither the database nor the
petition adequately linked threats to the general area inhabited by the Arapaho Snowfly to either
the species or the habitat.
In contrast, the second petition sought listing for only the Arapaho Snowfly. It contained
lengthy discussion of the Arapaho Snowfly and its habitat. Notably, an analysis of the threats to
the Arapaho Snowfly and its habitat consumed the majority of the petition. FWS determined
that this petition provided sufficient scientific information to warrant further review.
Despite these differences, Plaintiff suggests that FWS’s positive resolution of the second
petition was motivated in substantial part by Defendant’s desire to avoid future litigation and to
moot the controversy over his denial of the first petition. In support of this proposition, Plaintiff
notes that Defendant continued to defend his denial of Plaintiff’s first petition even after the
second petition was filed. This argument ignores the most plausible explanation: FWS found the
second petition merited further review because it cured the deficiencies of the first petition.3
This outcome was caused not by Plaintiff’s lawsuit, but by the refinements it made in response to
Defendant’s denial of the first petition. In light of these differences, it is not surprising that
Defendant continued to defend his denial of Plaintiff’s first petition even after he approved
Plaintiff’s second petition. Plaintiff presents no evidence rebutting this presumption, and I
decline to infer any improper motive.
CONCLUSION
Absent any evidence linking Plaintiff’s lawsuit challenging Defendant’s denial of its first
petition to list the Arapaho Snowfly and FWS’ decision that the second petition to list the
Arapaho Snowfly merited further review, Plaintiff is not entitled to an award of its fees and
costs. Accordingly, Plaintiff’s Motion to Recover its Reasonable Attorneys Fees (doc. 47) is

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Furthermore, Plaintiff’s focus on litigation qua litigation is misguided. An award of
attorney fees is not intended to provide an underwriting for threatening litigation or continuing
such without a merits-based justification.
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DENIED.

Dated: February 14, 2012

BY THE COURT:
/s/ John L. Kane
Senior U.S. District Court Judge

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