Western Watersheds Project v. Interior Board of Land Appeals

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WESTERN WATERSHEDS PROJECT, 

Plaintiff-Appellant,

v. No. 09-35708

INTERIOR BOARD OF LAND APPEALS,  D.C. No.

4:07-cv-00498-BLW

BUREAU OF LAND MANAGEMENT,

AND UNITED STATES OPINION

DEPARTMENT OF THE INTERIOR,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted

September 1, 2010—Seattle, Washington

Filed October 12, 2010

Before: Michael Daly Hawkins and M. Margaret McKeown,

Circuit Judges, and Thomas J. Whelan,

Senior District Judge.*

Opinion by Judge Hawkins

*The Honorable Thomas J. Whelan, Senior United States District Judge

for the Southern District of California, sitting by designation.

17027

WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS 17029

COUNSEL

Todd C. Tucci, Advocates for the West, Boise, Idaho, for the

plaintiff-appellant.

17030 WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS

Syrena C. Hargrove, Assistant United States Attorney, Boise,

Idaho, for the defendants-appellees.

OPINION

HAWKINS, Senior Circuit Judge:

In this appeal, which involves the interplay between the

issuance or renewal of Bureau of Land Management (“BLM”)

grazing permits and the fee-shifting provisions of the Equal

Access to Justice Act (“EAJA”), Western Watersheds Project

(“Western Watersheds”) appeals the summary judgment

determination that EAJA fees were not available to Western

Watersheds because its environmental claims were brought in

a grazing permit renewal proceeding. We agree with the dis-

trict court’s reasoning and affirm.

I. Background

A. Statutory and Regulatory Framework

1. The Taylor Grazing Act of 1934

The Taylor Grazing Act of 1934 authorizes the Secretary of

the Interior to issue federal grazing leases to qualified appli-

cants. 43 U.S.C. § 315m. BLM, an agency within the Depart-

ment of Interior, implements the Act and, since 1995, has

required ranchers grazing cattle on federal land to obtain a

grazing permit. 43 C.F.R. § 4140.1(b)(1). BLM also monitors

rangeland health (i.e., environmental issues within a given

grazing allotment) and, based on its evaluation of a particular

allotment, may determine that corrective actions are neces-

sary. See 43 C.F.R. § 4180.2(c). These permitting and moni-

toring functions overlap because permittee actions may affect

rangeland health. Accordingly, when a party seeks a new or

renewed grazing permit, BLM considers what terms, if any,

WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS 17031

are necessary to include in the permit to improve rangeland

health. 43 C.F.R. § 4160.1.

To determine the necessary terms, BLM considers the per-

mit against the standards and guidelines for the relevant geo-

graphical area, which in turn requires consideration of issues

such as water quality and habitat for endangered or threatened

species. 43 C.F.R. § 4180.2(d). Once BLM has identified

terms for the permit, it issues a Proposed Grazing Decision.

43 C.F.R. § 4160.1. An applicant, permittee, or other inter-

ested party may protest this decision. 43 C.F.R. § 4160.2.

Absent a protest and reconsideration, the proposed decision

becomes a Final Grazing Decision, which an interested party

may then appeal. 43 C.F.R. §§ 4160.3, 4.470. If no appeal is

taken, or if a decision on appeal affirms an agency decision,

the Final Grazing Decision’s terms become the terms of the

new grazing permit or renewal. 43 C.F.R. § 4130.3-1(a).

Thus, agency action results in either the grant or denial of a

permit—or its renewal or non-renewal—which includes con-

sideration of rangeland health and provides opportunity for

interested parties to object.

2. The Equal Access to Justice Act

The EAJA partially waives the sovereign immunity of the

United States, allowing an award of attorneys’ fees in certain

circumstances. In general, “[a]n agency that conducts an

adversary adjudication shall award, to a prevailing party other

than the United States, fees and other expenses incurred by

that party in connection with that proceeding,” though there

are exceptions if “the adjudicative officer of the agency finds

that the position of the agency was substantially justified or

that special circumstances make an award unjust.” 5 U.S.C.

§ 504(a)(1).

Central to this appeal is whether the underlying proceeding

falls within the EAJA’s definition of “adversary adjudica-

tion.” In relevant part, “adversary adjudication” means “an

17032 WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS

adjudication under section 554 of the Administrative Proce-

dure Act (“APA”) in which the position of the United States

is represented by counsel or otherwise, but excludes an adju-

dication for the purpose of establishing or fixing a rate or for

the purpose of granting or renewing a license.” 5 U.S.C.

§ 504(b)(1)(C)(i) (emphasis added). A grazing “permit,” such

as here, is a “license” for the purpose of this statute. See 5

U.S.C. §§ 504(b)(2); 551(8).

B. Factual History

Western Watersheds is a non-profit, conservation group

with a history of litigation success. In 2001, Western Water-

sheds obtained an injunction against BLM (“the Hahn injunc-

tion”), requiring BLM to correct environmental degradation

caused through BLM’s management of public lands in Idaho,

including its issuance of grazing permits to cattle ranchers on

the Hardtrigger allotment of the Owyhee Resource Area in

southwestern Idaho. See Idaho Watersheds Project v. Hahn,

307 F.3d 815, 820-21 (9th Cir. 2002), abrogated on other

grounds by Winter v. Natural Res. Def. Council, Inc., 129 S.

Ct. 365, 380-82 (2008), as recognized in Monsanto Co. v.

Geertson Seed Farms, 130 S. Ct. 2743, 2756-57 (2010).

In response to the Hahn injunction, BLM reviewed its graz-

ing management in the Hardtrigger allotment, concluding that

livestock grazing was causing violations of applicable mini-

mum rangeland health standards. In April 2005, BLM sought

to address this problem by issuing five final decisions renew-

ing amended 10-year grazing permits that included new

requirements for rangeland improvements, such as construc-

tion of new fences, pipelines, troughs, cattle guards, and other

range improvements. BLM supported these decisions with an

Environmental Assessment and a Finding of No Significant

Impact, pursuant to the National Environmental Protection

Act (“NEPA”), see 42 U.S.C. §§ 4321-4347.

In May 2005, Western Watersheds filed administrative

appeals of each permit, alleging numerous violations of

WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS 17033

NEPA and other federal regulations, including claims that

BLM failed to examine environmental impacts on sensitive

plants and wildlife that would result from the construction of

the rangeland improvements prescribed in the renewed per-

mits. An administrative law judge (“ALJ”) consolidated the

appeals and granted a partial stay. The parties then entered

into a Stipulated Settlement Agreement that, once approved,

reversed BLM’s decisions renewing the permits and enjoined

construction of all range developments.

Having succeeded, Western Watersheds moved for fees and

costs under the EAJA. The ALJ denied the motion, finding

Western Watersheds was not a “prevailing party,” an issue

disputed in the administrative proceedings but uncontested by

the government before the district court.

Western Watersheds appealed to the Interior Board of Land

Appeals (“Appeals Board”). The Appeals Board affirmed the

ALJ’s decision denying fees, though it declined to affirm the

reasoning that Western Watersheds was not a prevailing

party. Instead, the Appeals Board found the appeal challenged

“renewals of five 10-year grazing permits on the [Hardtrig-

ger] Allotment” and that it therefore fell “within one of the

exceptions to the class of adversary adjudications for which

fees are awarded.” The Appeals Board deemed the case con-

trolled by William J. Thoman, 157 IBLA 95 (2002), in which

it had noted that, while not every case involving a license nec-

essarily falls within the EAJA’s exception, those adjudica-

tions “for the purpose of granting or renewing a license”

clearly do. While the Appeals Board accepted that Western

Watersheds’ motive behind its appeal was to force environ-

mental compliance rather than to dispute a permit it sought for

itself, the Appeals Board explained that “appellants’ subjec-

tive motivation for pursuing an appeal cannot change” the

objective character of the underlying proceeding being chal-

lenged, which in this case was a grazing permit renewal.

After the Appeals Board denied reconsideration, Western

Watersheds filed in the district court pursuant to the APA and

17034 WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS

moved for summary judgment, seeking reversal of the

Appeals Board’s decision. Characterizing the issue as

“whether the adjudication was for the purpose of granting or

renewing a license so as to preclude attorney fees,” the district

court found “that the nature of the initial proceedings”—

rather than the intent of the party seeking fees—“defines the

purpose of the adjudication.” Consequently, the district court

denied Western Watersheds’ motion for summary judgment

and affirmed the Appeals Board’s decision. This appeal fol-

lowed.

II. Standard of Review

The district court’s interpretation of the EAJA as well as its

denial of summary judgment in an administrative action are

reviewed de novo. See Zambrano v. I.N.S., 282 F.3d 1145,

1149 (9th Cir. 2002), amended by 302 F.3d 909 (9th Cir.

2002); Gifford Pinchot Task Force v. U.S. Fish & Wildlife

Serv., 378 F.3d 1059, 1065 (9th Cir. 2004). A final decision

of the Appeals Board shall be set aside only if it is “arbitrary,

capricious, an abuse of discretion, or otherwise not in accor-

dance with law.” 5 U.S.C. § 706(2)(A); Gilmore v. Lujan, 947

F.2d 1409, 1411 (9th Cir. 1991).

III. Discussion

[1] The sole issue here is whether Western Watersheds’

administrative appeal was an adjudication “for the purpose of

granting or renewing a license” and thus excepted from the

definition of “adversary adjudication” for which fees are oth-

erwise recoverable under the EAJA.1

1

In its brief, Western Watersheds separately argues that BLM was not

only renewing a permit, but also modifying and amending an existing per-

mit. However, Western Watersheds abandoned this argument before the

district court and failed to explain any unique circumstances that would

warrant hearing the claim for the first time on appeal. See F.T.C. v. Neovi,

Inc., No. 09-55093, 2010 WL 2365956, at *7 n.7 (9th Cir. June 15, 2010)

WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS 17035

The parties offer competing views on how to determine the

“purpose” of an adjudication and, correspondingly, the avail-

ability of attorneys’ fees under the EAJA. The Appeals Board

argues that the purpose of an administrative appeal is con-

trolled by the nature of the underlying agency action—in this

case, the renewal of grazing permits. Western Watersheds

contends that the purpose of its appeal was to enforce federal

environmental laws, not to obtain or renew a license for itself.

No doubt this was Western Watersheds’ motive, and it suc-

ceeded in its effort, but this appeal turns on whether the “pur-

pose” described in the license exception to the EAJA reflects

the nature of the underlying proceeding, or if it can instead

reflect a party’s reason for appealing a permit renewal. Both

parties claim that the plain text of the statute is sufficient to

resolve the case. We agree, and conclude that the language of

the EAJA supports the Appeals Board’s interpretation.

Language and Context

[2] The statutory language at issue reads as follows:

“ ‘[A]dversary adjudication’ means (i) an adjudica-

tion under section 554 of th[e APA] in which the

position of the United States is represented by coun-

sel or otherwise, but excludes an adjudication for the

purpose of establishing or fixing a rate or for the

purpose of granting or renewing a license.” 5 U.S.C.

§ 504(b)(1)(C)(i) (emphasis added).

The “first step in interpreting a statute is to determine

whether the language at issue has a plain and unambiguous

(noting that “appellate courts will not consider an argument unless it has

been raised sufficiently for the trial court to rule on it” (internal citation

and quotation marks omitted)). The argument is thus deemed waived, and

we refrain from considering whether EAJA fees would be available if the

underlying grazing decisions were deemed permit modifications rather

than permit renewals.

17036 WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS

meaning with regard to the particular dispute in the case,” and

the “inquiry must cease if the statutory language is unambigu-

ous and the statutory scheme is coherent and consistent.” Rob-

inson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (internal

quotation marks omitted). Whether statutory language is suffi-

ciently plain or not is “determined by reference to the lan-

guage itself, the specific context in which the language is

used, and the broader context of the statute as a whole.” Id.

at 341 (internal citations omitted).

[3] The most natural reading of the EAJA text favors inter-

preting the “purpose” of an adjudication to be defined by the

objective nature of the agency action in question, rather than

the subjective motives of the challenging party. In the absence

of statutory language directing otherwise, the purpose of an

adjudicative proceeding is presumed to remain the same

throughout the duration of its administrative life, regardless of

the motives of an interested party challenging the decision on

appeal. This presumption is supported by both the plain mean-

ing of the text and its statutory context.

[4] Merriam-Webster defines “purpose” as “something set

up as an object or end to be attained.” Merriam-Webster’s

Collegiate Dictionary 1011 (11th ed. 2004). The more natural

reading of whether an adjudication is “for the purpose of

granting or renewing a license” looks to what the end result

of the adjudication ultimately will be, which in this case is the

renewal or non-renewal of a grazing permit. While Western

Watersheds may have been inspired to challenge BLM’s graz-

ing permit decisions by its interest in enforcing environmental

protection laws, it nonetheless pursued its goals within the

context of permitting renewal proceedings. Furthermore,

because consideration of environmental factors is embedded

in BLM’s permitting process, a challenge to a grazing permit

on environmental grounds still falls naturally within the

parameters of an adjudication whose purpose is to grant or

deny a permit or permit renewal. See 43 C.F.R. §§ 4160.2,

4180.2.

WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS 17037

[5] Although Western Watersheds insists its objective in

bringing the appeal was not to obtain or renew a license for

itself, the EAJA nowhere speaks in terms of whether a party

is seeking to “obtain” a license, but rather whether the agency

is considering a “grant” of a license. 5 U.S.C.

§ 504(b)(1)(C)(i). Western Watersheds attempts to bolster its

argument by inserting a word in the EAJA license exception

that is simply not there: “only those administrative adjudica-

tions brought ‘for the purpose of granting or renewing a

license.’ ” That Western Watersheds must insert the term

“brought” in order to effect its desired construction of the text

illustrates that the plain meaning of the language does not

support reading the adjudicative “purpose” from the perspec-

tive of the challenging party. The language chosen by Con-

gress to describe the “purpose” of an adjudication refers to the

nature of the agency action rather than the individual party’s

reasons for bringing the appeal.

The specific context of the statute also supports the

Appeals Board’s reading. When Congress limited the kinds of

adjudications for which attorneys’ fees are recoverable under

the EAJA, it relied on a well-recognized distinction under the

APA between applications for a license and adjudications in

which an agency seeks “the withdrawal, suspension, revoca-

tion, or annulment of a license.” 5 U.S.C. § 558(c). Thus, by

the time the EAJA was passed, renewals fell into the “licens-

ing” category and not the “modification” category. This long-

standing distinction is reflected in the model regulations

developed by the Administrative Conference of the United

States, tasked by Congress with advising all federal agencies

in consistently interpreting and applying the EAJA, and in the

Department of the Interior’s regulations. See Implementation

of the Equal Access to Justice Act (“Implementation Guide-

lines”), 46 Fed. Reg. 15,895, 15,896 (Mar. 10, 1981); 43

C.F.R. § 4.603.

The distinction also finds support in the cases cited by the

Appeals Board and lends support to the claim that the struc-

17038 WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS

ture of the EAJA excludes attorneys’ fees recovery when the

underlying proceeding is one whose purpose is renewal,

rather than modification, of a license. See Bankers Life &

Cas. Co. v. Callaway, 530 F.2d 625, 634-35 (5th Cir. 1976);

Hamlin Testing Labs., Inc. v. U.S. Atomic Energy Comm’n,

357 F.2d 632, 638 (6th Cir. 1966). Finally, while we are under

no obligation to defer to the Appeals Board’s interpretation of

the EAJA, see Amer. Pac. Concrete Pipe Co. v. NLRB, 788

F.2d 586, 590 (9th Cir. 1986), we note that its conclusion is

consistent with the Appeals Board’s previous administrative

decisions, which similarly rely on this distinction in determin-

ing when fees are available.2

Western Watersheds, on the other hand, offers no persua-

sive authority compelling its preferred conclusion. The two

cases it cites that interpret the EAJA license exception stand

only for the proposition that when a party challenges a

2

In William J. Thoman, the Appeals Board rejected the claim that a

party’s reason for challenging a BLM grant or renewal of a license

affected the “purpose” of the underlying proceeding. 157 IBLA 95, 98-99

(2002). The case involved an appeal by a grazing permit holder, Thoman,

from BLM’s grant of a crossing permit to his neighbor. Thoman’s theory

in challenging his neighbor’s permit was that BLM’s grant of the permit

to the neighbor served as a modification of Thoman’s own grazing permit

because the crossing would damage the available forage on the allotment

over which Thoman held a grazing preference. Id. at 96. In concluding

that fees were unavailable because the underlying proceeding was “for the

purpose of granting or renewing a license,” irrespective of Thoman’s own

personal objectives, the Appeals Board explained why a grant or renewal

of a permit was excepted from the EAJA, while the “suspension, annul-

ment, withdrawal, limitation, amendment, modification, or conditioning”

was not, as follows:

“The dividing line seems to be between those activities in which

the Government is acting in a purely proprietary capacity in

deciding whether or not to grant or renew a license affording

rights to individuals (in this case denominated as a grazing per-

mit), and those actions subsequently undertaken within the con-

fines of an issued license which may adversely impact upon the

enjoyment of rights already conferred by the Government.” Id. at

105.

WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS 17039

renewal or grant of a permit for himself, such a challenge is

excepted from EAJA fee shifting. See Bullwinkel v. U.S.

Dep’t of Transp., 787 F.2d 254, 256-57 (7th Cir. 1986); Naka-

mura v. Heinrich, 17 Ct. Int’l Trade 119, 121 (1993). These

cases hardly help Western Watersheds. Demonstrating that a

court will find the license exception applicable in these cases

does not lead to the conclusion that a court would have ruled

differently had a party not seeking the permit for itself (like

Western Watersheds, here) been the one to challenge the deci-

sion. In fact, it seems the decisions Western Watersheds cites

actually looked to the nature of the license or permit itself, not

the challenging party’s intent. See Bullwinkel, 787 F.2d at

256-57; Nakamura, 17 Ct. Int’l Trade at 120-21. In other

words, Western Watersheds’ cases offer little, if any, support

for its argument.

Purpose and Intent

It is true that Congress adopted the EAJA “to eliminate

financial disincentives for those who would defend against

unjustified governmental action and thereby to deter the

unreasonable exercise of Government authority.” Ardestani v.

I.N.S., 502 U.S. 129, 138 (1991). Western Watersheds also

correctly points out that the Administrative Conference has

interpreted the exceptions to the EAJA narrowly. See Imple-

mentation Guidelines, 46 Fed. Reg. 15,895, 15,896 (Mar. 10,

1981).3 Nonetheless, these concerns are not so compelling that

they outweigh a competing presumption in favor of constru-

ing waivers of sovereign immunity narrowly, particularly

when the plain meaning of the statutory text is so clear. See

Ardestani, 502 U.S. at 137-38.

3

As Western Watersheds points out, the Administrative Conference

finalized these model rules in May 1986, and the final rules largely

adopted the Administrative Conference’s broad interpretation of the

EAJA. See Equal Access to Justice Act: Agency Implementation, 46 Fed.

Reg. 32,900, 32,900-32,915 (June 25, 1981).

17040 WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS

[6] The EAJA partially waives the sovereign immunity of

the United States by creating a limited, precisely-defined class

of adjudications in which an award of attorneys’ fees is

allowed, see 5 U.S.C. §§ 504(a)(1), 504(b)(1)(C)(i), 554, and,

as with all waivers of sovereign immunity, the EAJA’s waiver

must be strictly construed. Accepting Western Watersheds’

interpretation of the EAJA would not only complicate the

implementation of the EAJA from a practical standpoint, in

that it would require a reviewing court to examine the subjec-

tive intent of each individual party in filing its appeal rather

than simply looking to the type of proceeding at issue to

determine whether the proceeding is an “adversary adjudica-

tion,” it could, moreover, open a fairly straightforward loop-

hole in the EAJA’s waiver of the sovereign immunity of the

United States.

[7] Though no one disputes Western Watersheds’ environ-

mental motives in the present case, one could easily imagine

a scenario in which a permittee uses a third party as a proxy

for making his own arguments before the Appeals Board and

then seeks fees for that third party—exactly the scenario that

the EAJA’s license exception seeks to avoid. In affirming the

lower court’s interpretation of the license exception, we

ensure that we do not enlarge Congress’ waiver of sovereign

immunity beyond what it clearly intended. Because Western

Watersheds conceded before the district court that the under-

lying agency action at issue was a permit renewal proceeding,

we also run no risk of expanding the narrow license exception

of the EAJA.

Legislative History

Because the text of the statute is clear in light of its plain

meaning and context, we refrain from examining the legisla-

tive history of the EAJA.

IV. Conclusion

Because Western Watersheds’ commendable efforts to

insure environmental compliance occurred within a proceed-

WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS 17041

ing Congress excepted from EAJA recovery, we affirm the

district court’s determination in that regard.

AFFIRMED.