Soda Mountain Wilderness Council et al v. United States Bureau of Land Management

Filing 89

ORDER: Denying Application for Fees Pursuant to EAJA 75 . Signed on 1/28/2016 by Judge Owen M. Panner. (jkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

SODA MOUNTAIN WILDERNESS COUNCIL;
OREGON WILD; KLAMATH SISKIYOU
WILDLANDS CENTER; CENTER FOR
BIOLOGICAL DIVERSITY; and CASCADIA
WILDLANDS PROJECT,
Plaintiffs,
v.

UNITED STATES BUREAU OF LAND
MANAGEMENT,
Defendant.

1: 12-cv-00434-CL

ORDER

PANNER, District Judge:

This court concluded that the United States Bureau of Land Management (BLM) did not
violate the National Environmental Policy Act (NEPA) or the Federal Land and Policy
-.:·.,.._,..

Management Act by proceeding with the Sampson Cove Forest Management Project (Sampson
Cove Project). Soda Mountain Wilderness Council v. ELM, 945 F. Supp. 2d 1162, 1169 (D. Or.
2013) (Soda Mountain I). On appeal, the Ninth Circuit affirmed except as to one NEPA claim
concerning the BLM' s failure to conduct a cumulative impact analysis of another timber project.

Soda Mountain Wilderness Council v. BLM, 607 F. App'x 670 (9th Cir. 2015) (Soda Mountain
II). The Ninth Circuit reversed on that claim and remanded for further proceedings to allow the
BLM to address the cumulative impact of the other pending project, the Cottonwood Forest
Management Project (Cottonwood Project). !d. at 672.
Plaintiffs now petition for attorney's fees under Equal Access to Justice Act (EAJA). 28
U.S.C. 2412(d). I deny the petition.
BACKGROUND

After the parties filed cross-motions for summary judgment, Magistrate Judge Mark D.
Clarke issued a Report and Recommendation conchiding that the government was entitled to
. summary judgment on all but one of Plaintiffs' claims. Soda Mountain I, 945 F. Supp. 2d at
1182-85. On Plaintiffs' NEP A claim for failure to analyze the cumulative impact of the
Cottonwood Project, however, the Report and Recommendation concluded that Plaintiffs were
entitled to summary judgment.
On review, I held that Defendants were entitled to summary judgment on all of Plaintiffs
claims, including the Cottonwood Project cumulative impact claim. Soda Mountain I, 945 F.
2 -ORDER

Supp. 2d at 1169. I reasoned that "[b]ecause the Cottonwood project was still in preliminary
planning stages when defendant published the Sampson Cove EA, defendant did not violate
NEPA by failing to consider possible cumulative impacts of the Cottonwood project." Id
On appeal, the Ninth Circuit affirmed except as to the Cottonwood Project cumulative
impact claim. The majority concluded that the Cottonwood Project was reasonably foreseeable
when Defendant issued its EA. Soda Mountain II, 607 F. App'x at 672. The court reversed and
remanded for the BLM to address the cumulative impact of the Cottonwood Project.
Judge Ikuta dissented from the majority's ruling on the Cottonwood Project claim. Id. at
674-76. In a detailed dissenting opinion, Judge Ikuta reasoned that the two BLM internal
agendas cited by Plaintiffs "fail to show that any of the significant parameters of the Cottonwood
project were known at the time of the [Sampson Cove Project] EA." Id. at 675. Judge Ikuta
concluded that the court should have deferred "to the BLM's assertion that at the time it prepared
ithe Sampson Cove EA, the Cottonwood project was not far enough along for it to be reasonably
foreseeable." Id.

LEGAL STANDARDS
The EAJA requires an award of attorney's fees to the prevailing party in a civil action
against the United States unless the government can show that its position was substantially
justified both in the litigation and in the government's conduct that gave rise to the litigation.
United States v. 2659 Roundhill Drive, 283 F.3d 1146, 1151 (9th Cir. 2002) (Roundhill Drive).

"Substantial justification" "means that the government's position must have a 'reasonable basis
both in law and in fact,' i.e., the government need not be 'justified to a high degree,' but rather
'justified in substance or in the main' --that is, justified to a degree that could satisfy a reasonable
3 -ORDER

,.

person." !d. (citations omitted). "The government bears the burden of showing that its position
was substantially justified throughout the ... proceedings." !d. at 1151 n. 7 (citing United States

v. 22249 DolorosaSt., 190 F.3d 977, 982 (9th Cir. 1999)). This court has discretion to award
attorney's fees under EAJA. Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998).

DISCUSSION
The government's position on the cumulative impact claim, although incorrect, was
substantially justified because "a reasonable person could think it correct." Pierce v.

Underwood, 487 U.S. 552, 566 n.2 (1988). The Ninth Circuit's split decision shows that a
reasonable person could think that the government's position was correct. See Bay Area Peace

Navy v. United States, 914 F.2d 1224, 1231 (9th Cir. 1990) ("The disagreement within this panel
regarding the merits of the government's appealfurther suggests that a finding of substantial
justification is appropriate.").
I am mindful that "[a] district judge who has been reversed for,ruling against the party
that the court of appeals decides should have prevailed must be careful not to let his superseded
view of the merits color his determination of whether there was a substantial justification for the
government's position." United States v. Thouvenot, Wade & Moerschen, Inc., 596 F.3d 378, 384
(7th Cir. 2010) (Posner, J.) (citing Roundhill Drive, 283 F.3d at 1152-53; Friends of Boundary

Waters Wilderness v. Thomas, 53 F.3d 881, 885-86 (8th Cir. 1995); Oregon Natural Resources
Council v. Madigan, 980 F.2d 1330, 1332 (9th Cir. 1992)). Here, I accept the Ninth Circuit's
prior adverse decision as correct. Madigan, 980 F.2d at 1332. But although the government's
position on the cumulative impact claim was incorrect, the government's position was
nonetheless substantially justified because reasonable minds could differ on this close issue.

4- ORDER

CONCLUSION

t:t-CS

Plaintiffs' petition for attorney's fees .~s denied.
IT IS SO ORDERED.
DATED this

J,£ day of January, 2016.

OWEN M. PANNER
U.S. DISTRICT JUDGE

5 -ORDER