Western Watersheds Project v. United States Department of the Interior

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WESTERN WATERSHEDS PROJECT, 

Plaintiff-Appellee,

v.

UNITED STATES DEPARTMENT OF THE

INTERIOR, No. 10-35836

Defendant-Appellant,

 D.C. No.

4:08-cv-00506-BLW

and

GLENNS FERRY GRAZING OPINION

ASSOCIATION, INC.; JUNIPER

MOUNTAIN GRAZING ASSOCIATION,

L.L.C.,

Intervenor-Defendants.



Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted

February 7, 2012—Seattle, Washington

Filed April 25, 2012

Before: Mary M. Schroeder and Ronald M. Gould,

Circuit Judges, and Ralph R. Beistline,

Chief District Judge.*

Opinion by Judge Schroeder

*The Honorable Ralph R. Beistline, Chief United States District Judge

for the District of Alaska, sitting by designation.

4379

WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR 4381

COUNSEL

Laurence J. Lucas, Boise, Idaho, for plaintiff-appellee West-

ern Watersheds Project.

Syrena C. Hargrove, AUSA, Boise, Idaho, for defendant-

appellant United States Department of the Interior.

4382 WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR

OPINION

SCHROEDER, Circuit Judge:

The Government appeals from an award of attorneys’ fees

to a plaintiff conservation group in a long-running dispute

involving federal grazing permits in Idaho. Plaintiff-Appellee

conservation group is Western Watersheds Project (“WWP”)

and the permits were issued by Defendant-Appellant U.S.

Department of the Interior. The issue is whether the district

court properly awarded fees to WWP for legal work done in

the administrative proceedings conducted before the civil liti-

gation in which the district court held that the Interior Board

of Land Appeals (“IBLA”) had acted arbitrarily and capri-

ciously in upholding the Government’s award of some of the

grazing permits.

The precise legal issue concerns the interpretation of the

U.S. Supreme Court’s decision in Sullivan v. Hudson, 490

U.S. 877 (1989), and whether it permits an award of fees

under 28 U.S.C. § 2412(d)(1)(A) to a prevailing party in dis-

trict court for the work done in the administrative proceedings

that preceded the district court action. Here, the district court

awarded the fees because it concluded that the administrative

proceedings were closely tied to its own resolution of the

issues. Although the Government did not extensively argue its

position on statutory interpretation before the district court, it

contends more fully and persuasively to us that the fees

awarded under § 2412(d)(1)(A) should not have included fees

for the administrative proceedings. This is because fees for

administrative proceedings can be awarded under

§ 2412(d)(1)(A) only when the proceedings have been

ordered in a district court action that remains pending until the

conclusion of the administrative proceedings. Hudson, 490

U.S. at 892. That was the situation in Hudson, but that is not

the situation here, where the district court action was not filed

until after the administrative proceedings had concluded.

WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR 4383

We therefore must vacate the fee award and remand for the

district court to reduce the award by the amount that repre-

sents fees incurred in the administrative proceedings.

BACKGROUND

The chronology of the underlying dispute over grazing per-

mits is important to understanding the relationship between

the administrative permit proceedings and the civil litigation

in district court that followed them, and in which the fees at

issue were awarded. The seeds of this fee dispute were sown

in 1997, when WWP filed an action in Idaho district court

challenging the Bureau of Land Management’s (“BLM”) issu-

ance of grazing permits to cattle ranchers for 68 public land

allotments in 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. Nat. Res. Def. Council, Inc., 555 U.S. 7, 29-31 (2008).

In that case, the district court held in February 2000 that the

BLM had violated the National Environmental Policy Act

(“NEPA”), Pub. L. 91-190, 83 Stat. 852 (1969) (codified as

amended in 42 U.S.C.), and the court granted WWP’s request

for a permanent injunction. Id. at 820, 823. The injunction

required the BLM to conduct, within a set schedule, a new

NEPA analysis. Id. at 823. In conducting the new analysis, the

BLM found that its grazing management policies in the

Nickel Creek allotments, a portion of the 68 allotments in the

Owyhee Resource Area, failed to meet any of the applicable

rangeland health standards. The BLM sought to address this

problem (and meet its obligation under the injunction) in its

2003 Final Decision for the Nickel Creek allotments. The

BLM supported the Final Decision with an Environmental

Assessment (“EA”) and a Finding of No Significant Impact

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

The Final Decision provided for ten-year grazing permits that

would incorporate a grazing rotation schedule and eight man-

agement guidelines necessary to improve rangeland health

4384 WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR

conditions. The management guidelines, however, were not

mandatory.

WWP promptly, and not surprisingly, filed an administra-

tive appeal in December 2003 with the Department of Interior

Office of Hearings and Appeals, challenging the BLM’s Final

Decision. The administrative law judge (“ALJ”) held a

fifteen-day evidentiary hearing, at which the parties presented

over a dozen witnesses and hundreds of exhibits. On Septem-

ber 28, 2007, the ALJ issued a lengthy opinion in WWP’s

favor. The ALJ found that the BLM “failed to comply with

the grazing regulations on the fundamentals of rangeland

health, and failed to comply with [NEPA].” The Government

appealed the ALJ’s decision to the IBLA, and in December

2008, the IBLA reversed the ALJ’s rulings. The IBLA held

that the 2003 Final Decision did not violate NEPA, and,

because it would make significant progress in improving

allotment conditions, it did not violate the Fundamentals of

Rangeland Health Regulations, see 43 C.F.R. § 4180.

WWP then sought judicial review in district court under the

Administrative Procedure Act (“APA”), 60 Stat. 237 (1946)

(codified as amended at 5 U.S.C.), arguing that the IBLA’s

decision was arbitrary and capricious. The district court in

December 2009 granted partial summary judgment for WWP,

finding that the IBLA’s decision was arbitrary and capricious

because it had, without any explanation, reversed the ALJ’s

determination that the BLM’s 2003 Final Decision violated

the Fundamentals of Rangeland Health Regulations. The dis-

trict court remanded the matter to the BLM with instructions

to include the management guidelines as mandatory terms and

conditions of the permits and to render a new decision on the

Nickel Creek allotments. The Government did not appeal to

this court.

The controversy then shifted to fees. WWP timely moved

for an award of attorneys’ fees and expenses under the Equal

Access to Justice Act (“EAJA”), Pub. L. 96-481, 94 Stat.

WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR 4385

2325 (1980) (codified in scattered sections of 5, 15, 28, and

42 U.S.C.). WWP requested fees pursuant to 5 U.S.C. § 504

and 28 U.S.C. § 2412(d) for the administrative appeals and

district court proceedings, in which it had challenged the

BLM’s 2003 Final Decision for the Nickel Creek allotments.

The Government conceded that WWP was the prevailing

party and under § 2412(d)(1)(A) was entitled to reasonable

fees and costs incurred in district court, but argued that WWP

was not entitled to fees under either § 504 or § 2412(d) for the

administrative proceedings. The district court agreed that fees

for the administrative proceedings were excluded under

§ 504, but concluded that WWP was entitled to $183,160 in

fees under § 2412(d)(1)(A) for the administrative proceed-

ings. That award is the subject of this appeal, with the Gov-

ernment contending that fees for the administrative

proceedings here are not awardable under the EAJA because

the administrative proceedings were not tied to any then-

pending district court litigation.

DISCUSSION

I. There was no waiver by the Government.

WWP contends that the Government has waived its right to

challenge the award on appeal because it did not explain to

the district court why § 2412(d)(1)(A) and Hudson do not

allow for an award of fees for administrative proceedings in

this case. WWP characterizes the Government’s position on

appeal as a new argument that the district court did not

address. The question with respect to waiver, however, is

whether the issue was sufficiently raised for the trial court to

rule on it. In re E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir.

1989).

Here, the Government argued before the district court that

§ 2412(d) and the Supreme Court’s leading case, Hudson, do

not allow an attorneys’ fee award for administrative fees. It

distinguished Hudson on its facts, because it was a social

4386 WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR

security remand. The issue of fees for administrative proceed-

ings thus was squarely before the district court, and the dis-

trict court ruled on it. The Government did not give the

district court its legal basis for distinguishing Hudson, and

this gives rise to WWP’s argument that the Government has

waived any right to challenge fees. Yet, we do not require a

party to file comprehensive trial briefs on every argument that

might support a position on an issue. There is no waiver if the

issue was raised, the party took a position, and the district

court ruled on it. See In re E.R. Fegert, Inc., 887 F.2d at 957

(“There is no bright-line rule to determine whether a matter

has been properly raised,” only “[a] workable standard” that

it “must be raised sufficiently for the trial court to rule on it”);

Felix v. McCarthy, 939 F.2d 699, 701 (9th Cir. 1991) (finding

no waiver where the appellant’s trial brief referenced the issue

on appeal, the appellee responded to that issue, and the district

court ruled on it), cert. denied 502 U.S. 1093 (1992); see also

Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1260 n.8

(9th Cir. 2010) (reasoning that the waiver rule “does not apply

‘where the district court nevertheless addressed the merits of

the issue’ not explicitly raised by the party” (quoting

Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699,

707 (D.C. Cir. 2009))).

In this case, WWP requested administrative fees pursuant

to § 2412(d)(1)(A) and Hudson, the Government opposed the

request, and the district court ruled on it. Accordingly, we

conclude that the Government’s challenge to the fee award is

properly before us on appeal.

II. The district court erred in awarding WWP attorneys’

fees pursuant to § 2412(d)(1)(A) and Hudson for the

administrative proceedings.

[1] The EAJA partially waives the sovereign immunity of

the United States and allows a prevailing party to obtain an

award of attorneys’ fees against the Government. Section

2412(d)(1)(A) specifically allows for the award of fees to a

WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR 4387

prevailing party “in any civil action,” including judicial

review of agency actions. The statute provides in pertinent

part:

[A] court shall award to a prevailing party other than

the United States fees and other expenses, in addi-

tion to any costs awarded pursuant to subsection (a),

incurred by that party in any civil action (other than

cases sounding in tort), including proceedings for

judicial review of agency action, brought by or

against the United States in any court having juris-

diction of that action, unless the court finds that the

position of the United States was substantially justi-

fied or that special circumstances make an award

unjust.

§ 2412(d)(1)(A) (emphasis added). A “civil action,” however,

is a proceeding in a judicial court, not an administrative court.

See Hudson, 490 U.S. at 894-95 (White, J., dissenting). Sec-

tion 2412(d)(1)(A), therefore, generally does not allow for the

award of fees for administrative proceedings.

[2] The Supreme Court has created only a narrow excep-

tion to this general rule. See Hudson, 490 U.S. at 891-93. Fees

for administrative proceedings may be awarded under

§ 2412(d)(1)(A) so long as the administrative proceedings are

“intimately tied to the resolution of the judicial action,” and

“necessary to the attainment of the results Congress sought to

promote by providing for fees.” Id. at 888. Relying upon this

language, the district court here awarded fees incurred in the

administrative proceedings. It reasoned that the administrative

proceedings were “intimately tied” to its resolution of the dis-

trict court action because the court was called upon to review

the administrative proceedings and relied upon the record

compiled by WWP before the ALJ. It concluded that WWP

should be compensated for that work as well as the work done

in district court. Under its reasoning, fees would be recover-

4388 WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR

able for most administrative proceedings in which the district

court relies on the administrative record.

In Hudson, the Supreme Court awarded fees under

§ 2412(d)(1)(A) for administrative proceedings in a very

unusual type of social security case. 490 U.S. at 884-88. The

Secretary of Health and Human Services in Hudson initially

denied the claimant’s application for social security disability

and income benefits. Id. at 879-80. The claimant appealed to

the district court, and the district court ultimately remanded

her case pursuant to 42 U.S.C. § 405(g) of the Social Security

Act (“SSA”) for further administrative proceedings. Id. at

880-82. In so doing, the district court retained jurisdiction

over the civil action. Id. at 882. The claimant then obtained

relief in the administrative courts and returned to district

court, requesting attorneys’ fees under § 2412(d)(1)(A) for the

administrative proceedings that followed the court-ordered

remand. Id. at 882. The district court denied her fee request,

the Eleventh Circuit reversed, and the Supreme Court granted

certiorari to determine whether the claimant was entitled to an

award of attorneys’ fees under the EAJA for the administra-

tive proceedings on remand. Id. at 879, 882-83.

[3] The Supreme Court held that the claimant was entitled

to fees under § 2412(d)(1)(A) for the post-litigation, adminis-

trative proceedings. Id. at 892. The Court, however, did not

purport to authorize fees for all administrative proceedings

that are conducted after a district court remand and that are

subject to district court review on the basis of the administra-

tive record. The Court distinguished the unique SSA remand

in Hudson from standard remands issued after judicial review

of agency action. Id. at 884-88. The Court found that the

detailed provisions in the SSA governing the back-and-forth

transfer to and from the district court and administrative

agency “suggest[ed] a degree of direct interaction” between

the two that was “alien to traditional review of agency action

under the Administrative Procedure Act.” Id. at 885.

WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR 4389

The Court stressed that it awarded fees for the administra-

tive proceedings in that case because the district court action

remained pending throughout the administrative proceedings,

and the district court could not enter a final judgment in the

claimant’s social security case until the administrative pro-

ceedings were completed. Id. at 886-87. The Court therefore

concluded that the administrative proceedings on remand and

the district court action were so “intimately” linked that “they

should be considered part and parcel of the action for which

fees may be awarded.” Id. at 888. The Court thus held:

[W]here a court orders a remand to the Secretary in

a benefits litigation and retains continuing jurisdic-

tion over the case pending a decision from the Secre-

tary which will determine the claimant’s entitlement

to benefits, the proceedings on remand are an inte-

gral part of the “civil action” for judicial review, and

thus attorney’s fees for representation on remand are

available [under § 2412(d)(1)(A)].

Id. at 892.

[4] Since Hudson, the Supreme Court has further clarified

its narrow scope. The Court, within two years after Hudson,

emphasized that because EAJA is a partial waiver of sover-

eign immunity it “must be strictly construed in favor of the

United States.” Ardestani v. INS, 502 U.S. 129, 137 (1991).

Following this principle, the Court has stated consistently that

fees for administrative proceedings can only be awarded

under § 2412(d)(1)(A) if the district court ordered the further

proceedings, and the district court action remained pending

until the conclusion of the administrative proceedings. See

Melkonyan v. Sullivan, 501 U.S. 89, 96-97 (1991) (reasoning

that Hudson “stands for the proposition that in those cases

where the district court retains jurisdiction of the civil action

and contemplates entering a final judgment following the

completion of administrative proceedings, a claimant may

collect EAJA fees for work done at the administrative level”);

4390 WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR

Shalala v. Schaefer, 509 U.S. 292, 299-300 (1993) (holding

that because the district court does not retain jurisdiction,

sentence-four social security remands do not fall within the

scope of Hudson, and noting that the Court had limited Hud-

son “to a narrow class of qualifying administrative proceed-

ings where the district court retains jurisdiction of the civil

action pending the completion of the administrative proceed-

ings” (internal quotation marks and citation omitted)).

[5] Our circuit has followed these decisions, applying Hud-

son to deny fees in other administrative contexts. See Nadara-

jah v. Holder, 569 F.3d 906, 920 (9th Cir. 2009) (immigration

and habeas corpus); Mendenhall v. Nat’l Trans. Safety Bd.,

213 F.3d 464, 467-69 (9th Cir. 2000) (aviation). Nadarajah

was a habeas case, in which the prevailing petitioner

requested fees for administrative immigration proceedings

that preceded the habeas litigation. 569 F.3d at 919. The peti-

tioner argued that the administrative proceedings were “inti-

mately connected” to the habeas corpus litigation upon which

he prevailed, because the district court relied on the evidenti-

ary record created in the administrative proceedings, thereby

avoiding a duplicative evidentiary hearing in district court. Id.

at 919-20. We held that the fees for the administrative pro-

ceedings were not recoverable, because Hudson applies only

when the attorneys’ work in the administrative proceedings is

necessary to carrying out a court-ordered remand for further

proceedings. Id. at 919.

Similarly, in Mendenhall, we rejected a claim for an award

of attorneys’ fees calculated under § 2412(d)(1)(A) for pre-

litigation administrative proceedings that were conducted

before the National Transportation Safety Board. 213 F.3d at

467-69. We emphasized that Hudson only applied to a “nar-

row class of administrative proceedings . . . where a suit has

been brought in a court, and where a formal complaint within

the jurisdiction of a court of law remains pending and

depends for its resolution upon the outcome of the administra-

tive proceedings.” Id. at 468 (internal quotation marks and

WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR 4391

citation omitted) (emphasis in original). Our decisions are

consistent with the decisions of the other circuits that have

considered whether § 2412(d)(1)(A) authorizes fees for

administrative proceedings that either preceded or followed

district court litigation. See Maritime Mgmt., Inc. v. United

States, 242 F.3d 1326, 1336 (11th Cir. 2001) (denying pre-

litigation fees incurred during administrative proceedings

before the General Accounting Office); Friends of the Bound-

ary Waters Wilderness v. Thomas, 53 F.3d 881, 887 (8th Cir.

1995) (declining to award fees for pre-litigation expenses

incurred during the Forest Service’s administrative appeals

process because there was “no basis for extending Hudson[ ]”

to cases “where the administrative proceedings precede the

civil action”); Full Gospel Portland Church v. Thornburgh,

927 F.2d 628, 629, 631-33 (D.C. Cir. 1991) (holding that the

plaintiffs could not recover fees for post-litigation, adminis-

trative proceedings before the Immigration and Naturalization

Service because the “[p]roceedings under the [Immigration

and Nationality Act] lack[ed] the specific features of the SSA

proceedings that, in Hudson, demonstrated the ‘intimate tie’

between administrative and judicial proceedings”), cert.

denied 502 U.S. 1030 (1992); Pollgreen v. Morris, 911 F.2d

527, 535-36 (11th Cir. 1990) (awarding fees for the adminis-

trative proceedings in a case involving deprivation of prop-

erty, because the proceedings were directed by the district

court and the district court could not enter a final judgment

until after the completion of the administrative proceedings).

To support its position that the district court properly

awarded administrative fees under the EAJA in this case,

WWP relies on Native Village of Quinhagak v. United States,

307 F.3d 1075, 1083 (2002). But the issue in Quinhagak con-

cerned whether the district court had discretion to award fees

for pre-litigation administrative proceedings under the Alaska

National Interest Lands Conservation Act (“ANICLA”), Pub.

L. 96-487, 94 Stat. 2371 (1980) (codified at scattered sections

of 15 and 43 U.S.C.). As we observed in that case, ANILCA

was intended by Congress to enable rural residents in Alaska

4392 WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR

to play a material role in the management of Alaska’s

resources, and participation in the administrative proceedings

was essential to that goal. Id. at 1082-83. We thus held that

the district court had discretion to award fees for the adminis-

trative proceedings. Id. at 1083. This decision, however, was

premised on particular congressional concerns about the sub-

sistence needs of rural Alaskans. Id.; see generally 16 U.S.C.

§ 3111 (providing that an “administrative structure” should be

established “for the purpose of enabling rural residents . . . to

have a meaningful role in the management of fish and wildlife

and of subsistence uses on the public lands in Alaska”); 126

Cong. Rec. 31109 (daily ed. Dec. 1, 1980) (stating that “local

residents and other aggrieved persons and organizations who

are prevailing parties . . . shall be awarded their full costs and

reasonable attorney’s fees,” because it “is important to ensure

that the residents of Native villages, many of which are

among the poorest communities in the Nation, will be able to

secure adequate representation”). The case does not support a

holding that administrative fees are broadly available under

the EAJA.

[6] Indeed, Congress has spoken directly to the subject of

fees for administrative grazing-permit proceedings and has

rejected them. Section 504(a) allows administrative fee

awards to prevailing parties in administrative proceedings that

involve “adversary adjudications,” but goes on to exclude

licensing proceedings. See § 504(b)(1)(C) (“’[A]dversary

adjudication’ means (i) an adjudication . . . in which the posi-

tion of the United States is represented by counsel or other-

wise, but excludes an adjudication for the purpose of . . .

granting or renewing a license . . . .”); see also § 2412(d)(3)

(allowing a federal court to award attorneys’ fees “to a pre-

vailing party in any action for judicial review of an adversary

action, as defined in [5 U.S.C. § 504(b)(1)(C)],” and to

include fees incurred in administrative proceedings “to the

same extent authorized in subsection (a)” of § 504). The par-

ties agree that the administrative grazing-permit proceedings

here are “licensing proceedings” outside the scope of § 504.

WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR 4393

See Western Watersheds Project v. Interior Bd. of Land

Appeals, 624 F.3d 983, 987-90 (9th Cir. 2010) (holding that

Western Watersheds, in related litigation, was not eligible for

attorneys’ fees in adjudication for the purpose of granting or

renewing grazing permits). Thus, unlike the fee award in

Quinhagak, which furthered “Congress’s expressed purpose

in enacting the statute” and did not hinder any other statutory

purpose, 307 F.3d at 1083, an award of fees in this case would

conflict with Congress’s express limitation on fee awards for

pre-litigation administrative grazing-permit proceedings.

[7] For all of these reasons, we must vacate the district

court’s award of fees and remand for it to enter an award that

excludes the $183,160 representing fees for the administrative

proceedings.

VACATED and REMANDED.