Petition for Writ of Certiorari — Pyramid Lake Paiute Tribe of Indians v. Carson-Truckee Water Conservancy District

Voy Vw

: ON BEL.

84-1384 hates

FER 26 1985

a AARBXANOER L. STEWAS

CAERR

In the Supreme Court of the United States

October Term, 1984

ry.

A?

PYRAMID LAKE PAIUTE TRIBE OF INDIANS,

Petitioner,

v.

CARSON-TRUCKEE WATER CONSERVANCY,

DISTRICT, et ai.,

Respondents.

ny

Ww

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

fy.

Vv

JEANNE S. WHITEING

STEVEN C, slooRE

Native American Rights Fund

1506 Broadway

Boulder, CO 80302

(303) 447-8760

Attorneys for the Pyramid Lake

Paiute Tribe of Indians

February 25, 1985

COCKLE LAW BRIEF PRINTING CO, (800) 835-7427 Ext. 333

es

QUESTIONS PRESENTED

Should a decision of the Ninth Circuit Court of Ap-

peals be allowed to stand which:

(1) Undermines the intent of Congress of encour-

aging private enforcement of federal environmental legis-

lation by applying, in conflict with this Court’s decision

in Ruckelshaus v. Sierra Club, — U.S. —, 108 S.Ct. 3274

(1983), a “substantial, exceptional contribution” test as

a basis for denying an award of attorney’s fees to a pre-

vailing party in litigation under the Endangered Species

Act of 1973, 16 U.S.C. § 1531 et seg. (ESA)?

(2) Imposes a more restrictive standard on awards

of attorney’s fees to parties prevailing in litigation under

the ESA and other federal environmental laws than that

imposed for fee awards under federal civil rights laws

when in fact Congress intended and this Court has helt

that a broader standard apply?

ii

PARTIES TO THE PROCEEDING

Petitioner is the Pyramid Lake Paiute Tribe of In-

dians. Respondents are the Carson-Truckee Water Con-

servancy District, Sierra Pacific Power Company and the

State of Nevada. The Secretary of the Interior, while

designated Defendant-Appellee in the appeal to the Ninth

Cireuit Court of Appeals, did not actively participate in

the appeal. Accordingly, Petitioner believes the Secre-

tary has no interest 'n the outcome of the petition.

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED i

PARTIES TO THE PROCEEDING ii

re iii

TABLE OF AUTHORITITES .... iv

PETITION FOR WRIT OF CERTIORARL ........ ee

OPINIONS BELOW ....... 2

JURISDICTION 2

STATUTE TO BE CONSTRUED i.

STATEMENT OF THE CASE ee 3

REASONS FOR GRANTING THE WRIT:

I. The Decision Of The Ninth Cireuit That A Pre-

TL.

vailing Party Must Nonetheless Prove Its Sub-

stantial, Exceptional Contribution To The En-

forcement Of The Endangered Species Act

Before Recovering Attorney’s Fees Under That

Act Raises Important Questions Of Federal Law

And Frustrates The Congressional Intent Of

Encouraging Private Enforcement Of Federal

Environmental Legislation.

The Decision Of The Ninth Circuit Denying The

Tribe Attorney’s Fees Conflicts With This

Court’s Decision In Ruckelshaus v. Sierra Club

And With Decisions Of Other Cireuit Courts of

Appeals.

A. The Ninth Circuit’s Decision Conflicts With

This Court’s Decision In Ruckelshaus v. Sier-

ra Club By Requiring A Prevailing Party

To Make a Showing Of Its Substantial

Contribution Before Recovering Attorney’s

Fees.

13

13

iv

TABE OF CONTENTS—Continued

Page

B. The Ninth Circuit’s Decision Conflicts With

Decisions Of Other Circuits Relating To Fee

Awards In Environmental Litigation. 0. 19

III. The Decision Of The Ninth Cireuit Must Be Re-

viewed Because Of Its Inconsistency With De-

cisions Of This Court Interpreting The Attor-

ney’s Fees Provisions Of Federal Civil Rights

Laws 21

A. The Fees Provisions Of The Federal Civil

Rights Laws Are Similar To But More Re-

strictlwe Than The Fees Provision Of The

Endangered Species Act. ; 21

B. Accordingly, the Ninth Circwit Decision In

This Case Conflicts With Decisions Of This

Court Interpreting Fees Provisions Of Fed-

eral Civil Rights Laws By Imposing A More

Restrictive Standard Of Recovery On Pre-

vailing Parties. 22

CONCLUSION ae

Appendix A App. 1

Appendix B App. 8

Appendix C App. 17

TABLE OF AUTHORITIES

Casgs

Alabama Power Company v. Gorsuch, 672 F.2d 1

(D.C. Cir. 1982) 8, 17, 18, 19

Alyeska Pipeline Service Co. v. Wilderness So-

ciety, 421 U.S. 240 (1975) 22

Carson-Truckee Water Conservancy District v.

Watt, 537 F.Supp. 106 (D. Nev. 1982) (CTWCDI). 3

v

TABLE OF AUTHORITIES—Continued

Carson-Truckee Water Conservancy District v.

Watt, 549 F.Supp. 704 (D. Nev. 1982) (CTWCD

IT) 5

Carson-Truckee Water Conservancy District v.

Watt, 575 F.Supp. 467 (D. Nev. 1983) (CTWCD

II1) 2,8

Carson-Truckee Water Conservancy District v.

Clark, 741 F.2d 257 (9th Cir. 1984) (CTWCDIV). 7

Carson-Truckee Water Conservancy District v.

Secretary of the Interior, 748 F.2d 523 (9th Cir.

1984) (CTWCD VY) 2, 8, 14

Delaware Citizens for Clean Air, Inc. v. Stauffer

Chemical Company, 62 F.R.D. 353 (D. Del.

1974), affirmed Delaware Citizens for Clean

Air, Inc. v. Stauffer Chemical Company, 510

F.2d 969 (3d Cir. 1975) 20

Environmental Defense Fund v. Environmental

Protection Agency, 672 F.2d 42 (D.C. Cir. 1982) 10, 18

19, 23

Hensley v. Eckerhart, 461 U.S. 424 (1983) 14

Lummi Indian Tribe v. Oltman, 720 F.2d 1124 (9th

Cir. 1983) 13

Natural Resources Defense Council v. Environ-

mental Protection Agency, 484 F.2d 1331 (1st

Cir. 1973) 11

Nevada v. United States, 463 U.S. 110 (1983) 0. 4

New York Gaslight Club, Inc. v. Carey, 447 U.S. 54

(1980) ‘ 22

Newman v. Piggie Park Enterprises, Inc., 390

U.S. 400 (1968) 22, 23

Pyramid Lake Paiute Tribe of Indians v. Morton,

453 F.Supp. 252 (D.D.C. 1973) — 4

vi

TABLE OF AUTHORITIES—Continued

Page

Pyramid Lake Paiute Tribe of Indians v. Morton,

360 F.Supp. 669 (D.D.C, 1973) — «

Ruckelshaus v. Sierra Club, — U.S. —, 103 S.Ct.

3274 (1983) 8, 10, 13, 14, 15, 16, 17, 20, 22, 24

Save Our Sound Fisheries Ass'n v. Callaway, 429

F.Supp. 1136 (D.R.L. 1977) a 23

Sierra Club v. Gorsuch, 672 F.2d 33 (D.C. Cir.

1982) ... . 8 14, 19, 20

Tennessee Valley Authority v. Hill, 437 U.S. 158

(1978) -u

United States v. Alpine Land and Reservoir Co.,

431 F.2d 763 (9th Cir. 1970), cert. denied sub

nom., Pyramid Lake Paiute Tribe of Indians v.

United States, 401 U.S. 909 (1971) . 4

Village of Kaktovik v. Watt, 689 F.2d 222 (D.C.

Cir. 1982) : 11, 18, 19, 20, 22, 23

FeperaL LeGIsLATION

Civil Rights Act of 1964, Title IT, 42 U.S.C.2000a-

3(b) a

Civil Rights Act of 1964, Title VII, 42 U.S.C.

§ 2000e-5(k) 21

Civil Rights Attorney’s Fees Award Act of 1976,

I ST iittala teneteatianhdnenininiaapenaiietie 21

Clean Air Act, 43 U.S.C. ¢ 7607(f) — . &9

Clean Water Act, 33 U.S.C. § 1365(d) . i)

Deep Seabed Hard Mineral Resources Act, 30

U.S.C. § 1427(e) . 10

Deepwater Port Act, 35 U.S.C. § 1515(d) 10

Endangered Species Act of 1973, 16 U.S.C. §§ 1531

et seq. ll

vii

TABLE OF AUTHORITIES—Continued

Page

Endangered Species Act of 1973, 16 U.S.C. §§ 1536

(a) (1), (x) (2)

“ndangered Species Act of 1973, 16 U.S.C.

§ 1540(¢) (1) ss 12

Endangered Species Act of 1973, 16 U.S.C.

§ 1540( 2) (4) passim

Energy Policy and Conservation Act, 42 U.S.C.

§ 6305(d) = 10

Federal Water Pollution Control Act of 1972, 33

U.S.C. § 1415(2) (4) . 23

Freedom of Information Act, 5 U.S.C.

§ 552(a)(4)(B) i 10

Marine Protection, Research and Sanctuaries

Act, 33 U.S.C. § 1415( 2) (4) — ———

Noise Control Act, 42 U.S.C. § 4911(d) . 10

Ocean Thermal Energy Conversion Act, 42 U.S.C,

§9124(d) . a 10

Outer Continental Shelf Lands Act, 43 U.S.C.

§$1349(a)(5) =—_ . 10

Powerplant and Industrial Fuel Use Act, 42

U.S.C, § 8435(d) —.. = 10

Safe Drinking Water Act, 42 U.S.C. § 300}-8(d) .._ 10

Surface Mining Control and Reclamation Act, 30

U.S.C, § 1270(d) 9

Toxic Substances Control Act, 15 U.S.C. § 2618(d) —9, 10

Washoe Reclamation Project Act of 1956, Pub.

L. No, 84-858, 70 Stat. 775, 48 U.S.C. §§ 614

614d

28 U.S.C, § 1254 (1) 2

28 U.S.C. § 2101(¢) 2

28 U.S.C. § 2412(b) 10

viii

TABLE OF AUTHORITIES—Continued

Page

Leors-ative MaTeriaLs

H.R. Rep. No. 294, 95th Cong., ist Sess. 337 (1977) — 11

H.R. Rep. No. 361, 92d Cong., Ist Sess. 23 (1971) 23

H.R. Rep. “‘o. 412, 93rd Cong., Ist Sess. 19 (1973) —. 1

H.R. Rep. No. 14082, 4th Cong., 2d sean

$19(e)(3) (1976) aieiatiedin tae

Legislative History of the Toxic Substances \~ *-

trol Act (1976) 12, 18

S. Rep. No. 451, 92d Cong., Ist Sess. 23 (1971) 23

S. Rep. No. 3149, 94th Cong., 2d Sess. $ 19(0)(3)

(1976) i7

Orner AUTHORITIES

Rule 20 of the Rules of the Supreme Court of the

United States 2

Rule 24(a), Federal Rules of Civil Procedure

Rule 29(1) of the Rules of the Supreme Court of

the United States 2

Sutherland, Statutory Construction (4th ed. 1973

by C.D. Sands) 21

No.

In the Supreme Court of the United States

October Term, 1984

>

.

PYRAMID LAKE PAIUTE TRIBE OF INDIANS,

Petitioner,

v.

CARSON-TRUCKEER WATER CONSERVANCY,

DISTRICT, et al.,

Respondents.

—o-

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

sz.

vo

Petitioner Pyramid Lake Paiute Tribe of Indians re-

spectfully prays that this Court issue a writ of certiorari

to review the judgment and opinion of the United States

Court of Appeals for the Ninth Circuit in Carson-Truckee

Water Conservancy District v. Secretary of the Interior,

No. 83-2542, entered on November 28, 1984.

OPINIONS BELOW

The opinion of the United States District Court for

the District of Nevada is reported as Carson-Truckee Wa-

ter Conservancy District v. Watt, 575 F.Supp. 467 (D. Nev.

1983), and is attached to this petition as Appendix A. The

opinion of the Ninth Cireuit Court of Appeals is reported

as Carson-Truckee Water Conservancy District v. Secre-

tary of the Interior, 748 F.2d 523 (9th Cir. 1984), and is at-

tached to this petition as Appendix B.

JURISDICTION

The opinion of the Ninth Cireuit Court of Appeals

was dated and filed on November 28, 1984. The judgment

sought to be reviewed was entered on the same date. Jur-

isdiction to review the Court of Appeals’ judgment in this

civil ease by writ of certiorari is conferred upon this Court

by 28 U.S.C. § 1254(1). This petition for writ of certiorari

is filed within the 90-day period prescribed by 28 U.S.C.

§ 2101(¢c), as computed in accordance with Rule 20 and

29(1) of the Rules of the Supreme Court of the United

States.

o

3

STATUTE TO BE CONSTRUED

The decision below construed the attorney’s fee pro-

vision of the Endangered Species Act of 1973, 16 U.S.C.

§ 1540(g) (4), which provides:

(4) The Court, in issuing any final order brought pur-

suant to paragraph (1) of this subsection, may award

costs of litigation (including reasonable attorney and

expert witness fees) to any party, whenever the court

determines such an award is appropriate.

LY.

VV

STATEMENT OF THE CASE

The Carson-Truckee Water Conservancy District,

Sierra Pacific Power Company and the State of Nevada

(hereinafter ‘‘Carson-Truckee”) brought suit in the United

States District Court for the District of Nevada in 1976

to compel the Secretary of the Jnterior to sell water from

Stampede Reservoir for municipul and irrigation purposes.

Carson-Truckee Water Conservancy District v. Watt, 537

F.Supp. 106 (D. Nev. 1982) (C7, WCD I). Stampede Dam

and Reservoir are Bureau of Reclamation projects on the

Truckee River in Nevada constructed under the Washoe

Reclamation Project Act of 1956. Pub. L. No. 84-858, 70

Stat. 775, 43 U.S.C. §§ 614-614d. The Truckee River below

Stampede empties into Pyramid Lake which is entirely

within the exterior boundaries of the Pyramid Lake Paiute

Indian Reservation.

The Tribe filed a motion to intervene as a matter of

right in 1976.!. The Tribe alleged, first, that as beneficial

1Rule 24(a), Federal Rules of Civil Procedure.

or equitable owner of rights to the use of waters of the

Truckee River and pursuant to its reserved ‘‘ Winters Doc-

trine” rights’ it had a substantial interest in the subject

matter of the litigation. Second, the Tribe asserted that

hased on a history of litigation on related matters it did

not believe its interests were fully or adequately repre-

sented by the Secretary. Intervention as a matter of

right was granted the Tribe in 1977.

One of the primary defenses raised by the Tribe was

that the Secretary was precluded from selling water to

Carson-Truckee by the Endangered Species Act. The

Truckee River contains two species of fish—the eui-wi and

the Lahonton cutthroat trout—which are classified as en-

dangered or threatened under the ESA.* For several

years the Tribe has sought to protect the fish population

ol the Truckee River to establish a commercial fishery in

fulfillment of its rights recognized by treaty with the

United States.

2Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F.

Supp. 252, 264-5 (D.D.C. 1973).

3See Pyramid Lake Paiute Tribe of Indians, supra, 354 F.

Supp. 252; and at 360 F.Supp. 669 (D.D.C. 1973); United States

v. Alpine Land and Reservoir Co., 431 F.2d 763 (9th Cir. 1970),

cert. denied sub nom., Pyramid Lake Paiute Tribe of Indians v.

United States, 401 U.S. 909 (1971). The conflict of interest in-

herent in the Department of the Interior’s responsibilities

through the Bureaus of Reclamation and Indian Affairs in the

context of Indian water rights has been recognized and articu-

lated by this Court in a case involving essentially the same liti-

gants as here. See Nevada v. United States 463 U.S. 110 (1983).

‘The Secretary of the Interior declared the cui-ui an en-

dangered species in 1967, 32 Fed. Reg. 4001; and the Lahonton

cutthroat trout to be “threatened with extinction” in 1975,

40 Fed. Reg. 29863.

5

Neither Carson-Truckee nor the Secretary disputed

the priority of the government’s obligations under the

ESA to protect these threatened and endangered species

of fish. The dispute focused instead on whether the ESA

required the Secretary to operate Stampede Reservoir un-

der a ‘‘jeopardy”’ or a ‘‘conservation” standard. In other

words, the legal question was whether the Secretary’s ob-

ligations were more accurately defined by 4 7(a)(1) or

§ 7(a)(2) of the ESA. 16 U.S.C. §§ 1536(a)(1), (a)(2).

Carson-Truckee Water Conservancy District v. Watt, 549

F.Supp. 704, 708-9 (D. Nev. 1982) (CTWCD II).

Under the former standard, advocated by Carson-

Truckee, the Secretary need only supply that amount of

water necessary to prevent extinction of the species. Id.

at 708. Under the ‘‘conservation’’ standard, espoused by

the Secretary and the Tribe, the Secretary’s obligation

was to ‘‘replenish the species so that they are no longer

endangered or threatened with extinction.” Jd. at 708-9.

On the merits, the district court held that the ESA re-

quired the Secretary to operate Stampede giving priority

to the fishery over all other puurposes until the cui-ui and

Lahonton cutthroat trout were removed from the protected

class as endangered and threatened species. CTWDC II,

549 F.Supp. at 706-08. Thus the court adopted the plan

for operating Stampede under a conservation standard,

rejecting Carson-Truckee’s jeopardy standard. Id.‘

The Tribe’s claim that its interests were not ade-

quately represented and protected by the Secretary was

‘The court noted that Carson-Truckee’s proposal “does

not meet their own standards because it would jeopardize the

existence of the cui-ui and hasten their extinction.” Id. at 711.

(

borne out several times during and following the litiga-

tion. While in trial, the Interior Department published

in the Federal Register a notice of intent to sell water

from Stampede Reservoir for municipal and irrigation

purposes. See 46 Fed. Reg. 26705 (May 14, 1981). This

notice completely contradicted the Secretary’s position on

the merits that his obligations both as trustee to the Tribe

and under the ESA precluded the sale of any water for

M & I purposes. Jd. at 708.

The Secretary also filed a motion to amend the final

judgment on the merits on November 5, 1982, to allow the

Secretary greater discretion to operate Stampede than the

district court had ordered. What the Secretary sought in

effect was to amend the judgment to allow operation of

Stampede under a § 7(a)(2) jeopardy standard, the stand-

ard espoused by Carson-Truckee and rejected by the court.

The Tribe opposed the motion on the ground that the

jeopardy plan had already been found by the court to

hasten the extinction of the protected species of fish, ar-

guing that the motion was nothing more than a cleverly

disguised attempt te subvert the litigation. The district

court ultimately denied the motion on December 22, 1982.

Finally, as a reflection of the continuing intransigence

of the Interior Department, following the district court’s

decision the Interior Associate Solicitor for Conservation

and Wildlife issued a memorandum to the Director of the

U.S. Fish and Wildlife Service on September 7, 1983, rec-

~ummending a national policy of ‘‘nonacquiescence’’ to the

decision and order, stating that it is “not precedent

setting and should be applied only to the Stampede Reser-

voir ease.” See Interior Department memorandum at-

tached hereto as Appendix C, App. 18.

7

With respect to the substantive legal issue decided by

the district court the memorandum concluded:

In short, the district court in the Carson case should

have upheld the discretionary authority of the Bureau

of Reclamation to allocate Stampede Reservoir waters

for endangered species conservation purposes and left

it at that. As a matter of law, no one conservation

regime should be considered favored or mandated as

opposed to another. The attempt of the district court

to mandate a particular program represents an un-

warranted limitation of the discretionary conservation

authorities granted to federal agencies. A clarifica-

tion of these matters should thus be sought on appeal.

Appendix C, App. 28-9.

These issues were raised on appeal, but with no suc-

cess. The Ninth Cireuit Court of Appeals affirmed the

ease on the merits on all grounds. Carson-Truckee Water

Conservancy District v. Clark, 741 F.2d 257 (9th Cir. 1984)

(CTWCD IV).

Moreover, the Tribe was actively involved in the case

since the beginning. Much of the government’s discovery

work was in fact initiated and carried out by the Tribe.

The Tribe prepared all the interrogaties and served as lead

counsel in all the depositions of plaintiffs’ witnesses, as

well as preparing and filing all pretrial procedural and

discovery-related motions. The Tribe played a very active

role in the trial of the case not only in the presentation of

witnesses but in the cross-examination of adverse wit-

nesses. Finally, the Tribe took the lead in the submission

of briefs and did the majority of work on behalf of de-

fendants.

Following the district court’s decision on the merits,

the Tribe moved for costs, expert witness fees and attor-

ney’s fees. The court first granted the motion yet limited

the recovery of costs and fees to work related to the issues

under the ESA. Later the court became concerned about

whether an award of attorney's fees was appropriate in

this instance under the citizen suit provision of the ESA,

and denied all requested fees outright. Carson-Truckee

Water Conservancy District v. Watt, 575 F.Supp. 467, 470

(D. Nev. 1983) (CTWCD IIT).

The Tribe appealed the denial of fees, arguing that

this Court’s decision in Ruckelshaus establishes that a

prevailing party on the merits is entitled to an award of

fees absent exceptional or unusual cireumstances. More-

over, the Tribe alleged that the district court erred by

applying a test which the Court of Appeals for the District

of Columbia had articulated in the context of non-prevail-

ing or losing parties applying for fee awards under the

Clean Air Act, 42 U.S.C. §§ 7401 et seqg.© Under that

standard a losing party would be entitled to an award of

fees only if its contribution to the enforcement and imple-

mentation of a federal environmental statute were sub-

stantial and exceptional. Because it prevailed on the

merits the Tribe asserted that standard should not apply.

The Ninth Cireuit rejected the Tribe’s contention that

the substantial, exceptional contribution standard applied

only to losing parties and rejected the Tribe’s entitlement

to attorney’s fees as a prevailing party under the Ruckels-

haus decision. Carson-Truckee Water Conservancy Dis-

trict v. Secretary, 748 F.2d 523 (9th Cir. 1984)

(CTWCDYV).

‘Alabama Power Company v. Gorsuch, 672 F.2d 1 (D.C.

Cir. 1982); Sierra Club v. Gorsuch, 672 F.2d 33 (D.C. Cir. 1982).

—— a

9

REASONS FOR GRANTING THE WRIT

I. The Decision Of The Ninth Circuit That A Pre-

vailing Party Must Nonetheless Prove Its Sub-

stantial, Exceptional Contribution To The En-

forcement Of The Endangered Species Act Be-

fore Recovering Attorney’s Fees Under That Act

Raises Important Questions Of Federal Law And

Frustrates The Congressional Intent Of Encour-

aging Private Enforcement Of Federal Environ-

mental Legislation.

Under the attorney’s fees provision of the ESA a

court has the discretion to award fees to any party when

such an award is deemed appropriate. The attorney’s fees

provision of the ESA literally provides that:

[t]he Court, in issuing any final order in any suit

brought pursuant to paragraph (1) of this subsection,

may award costs of litigation (including reasonable

attorney and expert witness fees) to any party, when-

ever the court determines such an award ts appro-

priate. (Emphasis added.)

16 U.S.C. § 1540(g) (4).

This standard for awarding attorney’s fees has been

widely used by Congress in federal environmental legisla-

tion adopted over the past one and one-half decades. Sev-

enteen federal environmental statutes—including § 1540

(g)(4) of the ESA—contain identical fee provisions, most

notably the citizen suit provisions of the Clean Air and

Water Acts.’

7Clean Air Act, 42 U.S.C. § 7607(f); Clean Water Act, 33

U.S.C. § 1365(d). The remaining fourteen identical statutory

fee provisions include: Toxic Substances Control Act, 15 U.S.C.

§ 2618(d); Surface Mining Control and Reclamation Act, 30

(Continued on next page)

10

Congress’ adoption and use of the “any party...

whenever appropriate” standard in the fee provisions of

these federal environmental laws represented a significant

departure from and expansion of the cireumstances under

which fees awards would be made. As compared to awards

in other contexts, “it seems plain that Congress intended

to give the Courts greater latitude” in making fee awards.

Environmental Defense Fund v. Environmental Protec-

tion Agency, 672 F.2d 42, 48 (D.C. Cir. 1982).8 Recently,

this Court in Ruckelshaus v. Sierra Club, — U.S. —, 108

S.Ct. 3274 (1983), interpreted the fees provision of the

Clean Air Act and the sixteen other identical fees pro-

vision as an expansion of fee awards over other contexts.

Ruckelshaus v. Sierra Club, supra, 103 S.Ct. at 3275-6,

n.1; see also 103 S.Ct. at 3279.

Through the enactment of comprehensive federal en-

vironmental legislation during the 1970’s Congress ex-

pressly recognized the inherent value to society at large

of the protection and enhancement of a clean environment.

In the context of the ESA, Congress specifically noted

the importance of all species of flora and fauna to the

(Continued from previous page)

U.S.C. § 1270(d); Deep Seabed Hard Mineral Resources Act, 30

U.S.C. § 1427(c); Marine Protection, Research and Sanctuaries

Act, 33 U.S.C. § 1415(g) (4); Deepwater Port Act, 33 U.S.C.

§ 1515(d); Safe Drinking Water Act, 42 U.S.C. § 300j-8(d); Noise

Control Act, 42 U.S.C. § 4911(d); Energy Policy and Conserva-

tion Act, 42 U.S.C. § 6305(d); Powerplant and Industrial Fuel

Use Act, 42 U.S.C. § 8435(d); Ocean Thermal Energy Conversion

Act, 42 U.S.C. § 9124(d); and Outer Continental Shelf Lands Act,

43 U.S.C. § 1349(a) (5).

Comparing awards under the fees provision of the Toxic

Substances Control Act, 15 U.S.C. § 2618(d), the Freedom of

Information Act, 5 U.S.C. § 552(a) (4) (E) and 28 U.S.C. § 2412(b).

ll

future of mankind, and of taking measures necessary to

protect and preserve these species and their habitats. 16

U.S.C. § 1531. This Court has reviewed the legislative

history of the ESA and concluded that Congress found the

value of endangered species to be “incalculable.” Tennes-

see Valley Authority v. Hill, 487 U.S. 158, 187 (1978).

Yet Congress knew that, because of the complexity of

issues related to the protection of the environment and

the enormity of the task, enforcement and implementation

of these laws could not be met by federal agencies alone.

[T]he purposes of the authority to award fees are

not only to discourage frivolous litigation, but also to

encourage litigation which will assure proper imple-

mentation and administration of the act or otherwise

serve the public interest. (Emphasis added.)

H.R. Rep. No. 294, 95th Cong., Ist Sess. 337 (1977).°

The purpose of an award of costs and fees is not

mainly punitive. It is to allocate the costs of litiga-

tion equitably, to encourage the achievement of statu-

tory goals. When the government is attempting to

earry out a program of such vast and unchartered di-

mensions, there are roles for both the official ageney

and a private watchdog.

Natural Resources Defense Council v. Environmental Pro-

tection Agency, 484 F.2d 1331, 1388 (1st Cir. 1973) (inter-

preting the fees provision of the Clean Air Act).

*Because of Congress’ use of identical language in the fees

rovisions of these federal environmental statutes one can

egitimately gain an understanding of congressional intent with

respect to one act by reference to the legislative history of an-

other. For example, the legislative history of the ESA indicates

that its “language is parallel to that contained in the recent

Marine Protection, Research and Sanctuaries Act of 1972, and

is to be interpreted in that same fashion.” H.R. Rep. No. 412,

93rd Cong., Ist Sess. 19 (1973), quoted in Village of Kaktovik

v. Watt, 689 F.2d 222, 224, n.14 (D.C. Cir. 1982).

12

Indeed, the specific language of the citizen suit pro-

vision of the ESA provides for actions “to enjoin any

person, including the United States and any other govern-

mental instrumentality or agency” from violations of the

Act. 16 U.S.C. §1540(g)(1). Congress anticipated that

at times private enforcement of the ESA would be neces-

sary against other private parties and even the federal

government and its agencies and instrumentalities. The

liberal fees provision of the ESA thus must be interpreted

within that context.

The present case represents the classic type of private

enforcement intended and encouraged by Congress. Al-

though the Tribe intervened in the lawsuit as a defendant,

its interests were consistent with and in fact prevented

further extinction of the threatened and endangered fish

populations in the Truckee River.'® And while at first

blush it may appear that the Tribe’s intervention was un-

necessary and duplicative because the federal government

also advocated a conservation standard under the ESA,

such was clearly not the case. As discussed earlier, both

advocated the adoption of a conservation standard under

the ESA. Yet in practical terms what the Secretary

sought under that standard was significantly different

from what the Tribe sought and would have resulted in

a much different management scheme to the detriment of

the fishery. The Seeretary’s plan -—different from the

Congress intended by using the phrase “any party” to

encourage the enforcement of federal environmental laws, re-

ardiess of whether the party seeking its enforcement was a

fendant or an intervenor or otherwise. See remarks of Sena-

tor Tunney, Legisiative History of the Toxic Substances Control

Act at 136, 727-28 (1976).

13

Tribe’s — was ultimately rejected by the district court.

See discussion, supra.

Vhe Tribe’s active involvement throughout the litiga-

tion ultimately resulted in the type of private enforcement

and implementation of the ESA anticipated by Congress,

and should be the basis for recovery of a fee award.

By denying the Tribe attorney's fees, the Ninth Cir-

cuit’s decision will in the future have a chilling effect

upon the private enforcement of the ESA and the sixteen

other environmental laws with identical fees provisions.

Congress clearly did not intend to foist upon prevailing

or partially prevailing parties in environmental lawsuits

the added burden of demonstrating the substantial nature

of their contribution, in a separate proceeding or other-

wise, after litigating the merits of a case. In all but the

most exceptional of circumstances that contribution would,

by definition, be established by virtue of a party’s pre-

vailing status,

II. The Decision Of The Ninth Circuit Denying The

Tribe Attorney's Fees Conflicts With This

Court’s Decision In Ruckelshaus v. Sierra Club

And With Decisions Of Other Circuit Courts of

Appeals.

A. The Ninth Circuit’s Decision Conflicts With

This Court’s Decision In Ruckelshaus v. Si-

erra Club By Requiring A Prevailing Party

To Make A Showing Of Its Substantial Con-

tribution Before Recovering Attorney's Fees.

In its decision the Ninth Circuit held that the Tribe,

a prevailing party by standards articulated in that Cireuit"’

‘'\Lummi Indian Tribe v. Oltman, 720 F.2d 1124, 1125 (9th

Cir. 1983).

14

and by this Court," was nonetheless not entitled to an

award of attorney's fees for its work in litigating important

issues under the ESA. CTWCD V, supra, 748 F.2d at 525.

The decision below conflicts with the standards an-

nounced in Ruckelshaus v. Sierra Club, supra. This Court

in Ruckelshaus rejected a fee award to a party which did

not prevail on any litigated claims under the Clean Air

Act. While foreclosing fee awards to losing parties, how-

ever, the Court reasoned that Congress intended prevail-

ing and partially prevailing parties under federal! environ-

mental laws to receive attorney's fees absent exceptional

circumstances. Thus the decision in Ruckelshaus rejects

the holding of the Ninth Cireuit in the instant case that

prevailing parties must nonetheless be f ed to demon-

strate the substantial or exceptional nature of their con-

tribution to litigation before receiving fee awards."

In Ruckelshaus this Court reversed a decision by the

Court of Appeals for the District of Columbia in Sierra

Club v. Gorsuch, 672 F.2d 33 (D.C. Cir. 1982). There the

court awarded attorney's fees to the Sierra Club and the

Environmental Defense Fund, despite rejecting al! claims

on the merits, on the grounds that such an award was

“A party is considered to have prevailed “for ong Ne

iti-

15

appropriate due to the substantial nature of their contribu-

tion to the implementation and enforcement of the Clean

Air Act. Jd. at 39-41.

Rejecting that reasoning, this Court in Ruckelshaus

held that Congress, by using the phrase “may award [at-

torney’s fees] ... to any party, . .. whenever appropriate,”

intended to expand fee awards only to include partially

prevailing parties.

Section 307(f) was meant to expand the class of par-

ties eligible for fee awards from prevailing parties

to partially prevailing parties—parties achieving some

success, even if not major success, Put differently,

by enacting § 307(f), Congress intended to eliminate

both the restrictive readings of “prevailing party”

adopted in some of the cases cited above and the

necessity for case-by-case scrutiny by federal courts

into whether plaintiffs prevailed “essentially” on “cen-

tral” isswes. (Emphasis in original end added.)

Ruckelshaus v. Sierra Club, supra, 103 S.Ct. 3279.

The issue which affects prevailing litigants in light

of the Ninth Circuit's decision in the instant case is the

extent to which they are now required to relitigate requests

for attorney's fees after prevailing or “showing some suec-

cess” on the merits. The Ninth Circuit's fundamental flaw

lies in its failure to recognize that Congress intended in

eases such as the present one to avoid lengthy, complex

and time-conswming inquiries into the substance of a pre-

vailing party’s contribution, a fact readily observed by

this Court in Ruckelshaus (see preceding quotation).

Thus, in addition to the chilling effect on private en-

forcement of federal environmental law, the decision of the

Ninth Cireuit will result in an unnecessary commitment of

16

limited judicial resources and further uncertainty as to

when prevailing parties are entitled to attorney’s fees.

Such unmanageable results have before received the scorn

of this tribunal.

In systemic terms, attorney’s fee appeals take up law-

vers’ and judges’ time that could more profitably be

devoted to other cases, including the substantive civil

rights claims that § 1988 was meant to facilitate.

Regular appellate scrutiny of issues like those in this

ease also generates a steady stream of opinions, each

requiring yet another to harmonize it with the one be-

fore or the one after. Ultimately, § 1988’s straight-

forward command is replaced by a vast body of arti-

ficial, judge-made doctrine, with its own areane pro-

cedures, which like a Frankenstein’s monster meanders

its well-intentioned way through the legal landscape

leaving waste and confusion (not to mention circuit-

splits) in its wake. Within the confines of individual

eases, from prevailing plaintiffs’ point of view, appel-

late litigation of attorney’s fee issues increases the de-

lay, uncertainty, and expense of bringing a civil rights

case, even after the plaintiffs have won all the relief

they deserve. Hensley v. Echerhart, supra, 461 U.S.

at 455-6 (Brennan, J., concurring in part and dissent-

ing in part).

As a prevailing party the Tribe intends by this petition to

eliminate the waste and confusion invited upon the legal

landscape by the Ninth Cireuit’s decision.

Significantly, in practical terms the result in Ruckel-

shaus wi!l not divest trial courts of the discretion to deny

fee awards to prevailing parties in clearly inappropriate

circumstances. As the Court there noted:

Of course, we do not mean to suggest that trivial sue-

cess on the merits, or purely procedural victories,

would justify an award of fees under statutes setting

out the “when appropriate” standard. Rather, Con-

17

gress meant merely to avoid the necessity for lengthy

inquiries into the question whether a particular party’s

success was “substantial” or occurred on a “central

issue.”

Ruckelshaus v. Sierra Club, supra, 103 S.Ct. 3279, n.9."

Such was not the case here, however. The Tribe was

an active participant in the litigation from the outset, in-

vesting a substantial amount of time and resources on legal

and other expert witness fees both in the pre-trial discov-

ery phase and at trial. As described supra, oftentimes the

Tribe’s interests were not in alignment with those of the

United States. But for the Tribe’s active involvement

those interests would not have been adequately protected

hy the federal government. ‘Thus the Tribe’s involvement

ean searcely be described as frivolous, parasitic or trivial.

This Court’s reasoning in Ruckelshaus is also con-

sistent with the intent of Congress that prevailing parties

are entitled to recover attorney’s fees. For example, Sen-

ator Tunney of California, a principal sponsor and pro-

ponent of many of the federal environmental laws _ re-

ferred to here, noted with particular relevance to this issue

that “a suecessful plaintiff should ordinarily recover in

[sic] attorneys’ fee unless special circumstances would

render an award unjust.” (Emphasis added.)'5

'4In liberalizing fee awards to environmental litigants Con-

gress sought to encourage private enforcement of federal en-

vironmental laws while at the same time protecting against

avuse: to discourage frivo!ous litigation and “parasitic inter-

vention by parties having nothing to add but eager to collect

costs and fees.”” Alabama Power Company v. Gorsuch, 672

F.2d 1, 30 (D.C. Cir. 1982).

SS. Rep. No. 3149, 94th Cong., 2d Sess. § 19(c) (3) (1976);

H.R. Rep. No. 14032, 94th Cong., 2d Sess. § 19(c) (3) (1976),

(Continued on next page)

tala ii ae iin

Moreover, in a painstaking analysis of the legislative

history of the fees provision of the Clean Air Act, Judge

Wilkey, in Alabama Power Company v. Gorsuch, supra

(dissenting on a separate issue), concluded that Congress

clearly intended a prevailing party status to be a suffi-

cient condition for the recovery of attorney’s fees.

It is fair to conclude that prevailing is not a necessary

condition for the award of attorneys’ fees and costs,

though it is sufficient. Congress, that is, generally

intended that an award be made when a petitioner pre-

vailed, plus in some other instances as well.

99 <¢¢

) If the idea is to encourage “legitimate actions,” “proper

' “onectly atin » Tae : pai - n*

implementation,” or suits in the “public interest,” an

award to parties who prevail would seem to be re-

quired by the legislative history.

Alabama Power Company v. Gorsuch, supra, 672 F.2d at

13-14).

In sum, Congress did not intend nor has any court

confronted with this question interpreted Congress as in-

tending to impose a substantial contribution test upon

prevailing parties before recovery of attorney’s fees. ‘Thus

the decision of the Ninth Cireuit represents an aberration

which this Court should review and correct.

(Continued from previous page)

reprinted in Legislative History of the Toxic Substances Control

Act at 136, 727-28 (1976); quoted in Environmental Defense

Fund v. Environmental Protection Agency, supra, 672 F.2d at 49;

also in Village of Kaktovik v. Watt, 689 F.2d at 225. Significantly,

the court in Kaktovik limited those special circumstances where

an award to a prevailing party would be unjust to situations

where a suit was “‘filed for the sake of mere harassment.” /d.,

689 F.2d at 224, n.14.

19

B. The Ninth Circuit’s Decision Conflicts With

Decisions Of Other Circuits Relating To Fee

Awards In Environmental Litigation.

The decision in the present case, imposing the sub-

stantial contribution standard upon a prevailing party in

litigation on the merits under the ESA, conflicts with earl-

ier decisions of other courts of appeals.

The Court of Appeals for the District of Columbia

does not impose a substantial contribution test upon pre-

vailing parties. In Environmental Defense Fund v. En-

vironmental Protection Agency, supra, the court awarded

attorney’s fees of $156,000.00 to the plaintiff environmental

organization which prevailed in litigation challenging the

validity of the EPA’s regulations under the Toxie Sub-

stances Control Act, 15 U.S.C. § 2601 et seq., governing the

disposal, marking, manufacture, processing, distribution

and use of polychlorinated biphenyls (PCB’s).

No mention whatsoever was made of the substantial

contribution test in the decision awarding attorney’s fees.

The court was satisfied that the plaintiff's prevailing on

the merits was sufficient to entitle it to receive attorney’s

fees. This is especially significant in light of the fact that

the decision came down the same day as two other decisions

from the Court of Appeals for the District of Columbia

imposing the substantial contribution test in cases where

losing parties applied for attorney’s fees. Alabama Power

Company, supra; Sierra Club v. Gorsuch, supra. See also

Village of Kaktovik v. Watt, supra, 689 F.2d at 228. The

clear implication is that the Court of Appeals for the Dis-

trict of Columbia did not then and dees not now consider

20

it necessary to impose a substantial contribution test on

prevailing parties.

The Third Cireuit Court of Appeals has also imposed

the substantial contribution test only upon losing parties.

Delaware Citizens for Clean Air, Inc. v. Stauffer Chemical

Company, 510 F.2d 969 (3d Cir. 1975), affirming Delaware

Citizens for Clean Air, Inc. v. Stauffer Chemical Company,

62 F.R.D. 353 (D. Del. 1974)."°

In conclusion, it is abundantly evident that the deci-

sion of the Ninth Circuit in this case is squarely at odds

with the decision in Ruckelshaus, and will result in unneces-

sary litigation over the circumstances under which pre-

vailing parties are entitled to attorney’s fees. Such a

result was not intended by Congress when enacting the

fees provision of the ESA and other federal environmental

statutes, nor has it been imposed by other courts of appeals

which have decided fee application cases.

l6There the district court stated that:

‘“(A]ppropriate” should be read in the context of the pre-

existing notions about the circumstances under which one

party may fairly be required to bear his adversary’s costs

of litigation. In this context it seems to this Court that

success or failure must be given substantial weight and

that an award of counsel fees to a losing party should be

reserved for those cases in which either the litigation,

though ultimately unsuccessful, serves the objectives of

the Act in some substantial way or in which other excep-

tional circumstances tip the balance of the equities de-

cidedly in the losing party’s favor. (Emphasis added.)

Citizens for Clean Air, Inc., supra, 62 F.R.D. at 355, quoted in

Sierra Club v. Gorsuch, supra, 672 F.2d at 36, n.4; and Village

of Kaktovik v. Watt, supra, 689 F.2d at 228.

21

III. The Decision Of The Ninth Circuit Must Be Re-

viewed Because Of Its Inconsistency With De-

cisions Of This Court Intepreting The Attorney’s

Fees Provisions Of Federal Civil Rights Laws.

A. The Fees Provisions Of The Federal Civil

Rights Laws Are Similar To But More Re-

strictive Than The Fees Provision Of The

Endangered Species Act.

By referring to other similar legislation and the de-

cisions of courts interpreting that legislation a court can

learn of and give effect to the true intent of Congress in

subsequent legislation, thereby establishing a more uni-

form and harmonious system of law. Sutherland, Statu-

tory Construction §§ 53.01, .03 (4th ed. 1973 by C. Sands).

To that end, it is necessary and uscful to analogize to the

award of attorney’s fees under the federal civil rights

laws and of the decisions of this Court interpreting those

fees provisions.

The attorney’s feces provisions of both Title IT and

Title VII of the Civil Rights Act of 1964, and the Civil

Rights Attorney’s Fees Award Act of 1976, contain iden-

tical standards for the award of attorney’s fees. All

three provide that ‘‘the court, in its discretion, may allow

the prevailing party ... a reasonable attor ey’s fee as

part of the costs.” See 42 U.S.C. §§ 2000a-3(b); 2000e-

o(k); and 42 U.S.C. § 1988.

The fees provisions of the federal civil rights and

environmental laws are similar in that both make fee

awards discretionary with the court considering the award.

The major difference is with respect to the party receiv-

ing the award: in the civil rights context a party must

prevail while in federal environmental litigation, inelud-

22

ing litigation under the ESA, any party may receive fees

when the court determines such an award is appropriate.

Courts interpreting this distinction—including this Court

—have interpreted congressional intent as liberalizing fee

awards to prevailing environmental litigants. See Ruck-

elshaus v. Sierra Club, supra, 103 S.Ct. at 3279.

B. Accordingly, The Ninth Circuit Decision In

This Case Conflicts With Decisions Of This

Court Interpreting Fees Provisions Of Fed-

eral Civil Rights Laws By Imposing A More

Restrictive Standard Of Recovery On Pre-

vailing Parties.

In civil rights litigation, this Court has unequivocally

stated that a prevailing party is entitled to an award of

attorney’s fees ‘‘unless special circumstances exist which

would render an award unjust.” Newman v. Piggie Park

Enterprises, Inc., 390 U.S. 400, 402 (1968). In interpret-

ing this standard this Court has described a court’s dis-

cretion to deny fees to a prevailing party under Titles II

or VII as “narrow.” New York Gaslight Club, Inc. v.

Carey, 447 U.S. 54, 68 (1980). More recently this Court

reaffirmed its holding in Newman that, in civil rights cases

where counsel fees are allowed by Congress, the award

should be made to the successful party “absent exceptional

circumstances.” (Emphasis added.) <Alyeska Pipeline

Service Co. v. Wilderness Society, 421 U.S. 240, 262 (1975).

The Court of Appeals for the District of Columbia

has analogized to the federal civil rights laws to deter-

mine appropriate circumstances under which to deny pre-

vailing parties fee awards. As quoted earlier, the court

in Village of Kaktovik v. Watt, supra, noted:

ESA’s equally limited history states that its “lan-

guage is parallel to that contained in the recent Ma-

rine, Protection, Research and Sanctuaries Act of

1972, and is to be interpreted in the same fashion.

H.R. Rep. No. 412, 93d Cong., Ist Sess. 19 (1973).

The history of the Act alluded to endorses awards

where ‘‘the suit was meritorious, and not filed for

the sake of mere harassment”. S. Rep. No. 451, 92d

Cong., Ist Sess. 23 (1971); H.R. Rep. No. 361, 92d

Cong., Ist Sess. 23 (1971). (Emphasis added.)

Village of Naktovik v. Watt, supra, 689 F.2d at 224-25

n.l4. See also Environmental Defense Fund v. Environ-

menta’ Protection Agency, supra, 672 F.2d at 49, quoting

the remarks of Senator Tunney that ‘‘a successful plain-

tiff should ordinarily recover in [sic] attorneys’ fee unless

special circumstances should render an award unjust.”

This reasoning has also been adopted on several occa-

sions by other lower courts considering fee awards under

federal environmental laws. For example, in Save Our

Sound Fisheries Ass'n v. Callaway, 429 F. Supp. 1136

(D.R.I. 1977), the court held that Congress’ intent in en-

acting the attorney's fees provisions of the Federal Water

Pollution Control! Act of 1972, 33 U.S.C. § 1415(g) (4), and

the Marine Protection, Research and Sanctuaries Act of

1972, 33 U.S.C. § 1415(g) (4), was to require attorney’s

fecs awards to prevailing parties unless there was evi-

dence of bad faith. Save Our Sound Fisheries v. Calla-

way, supra, 429 F. Supp. at 1145-46, citing Newman v.

Piggie Park Enterprises, supra.

In summary, parallels exist between the standards

for awarding attorney’s fees to prevailing parties under

the ESA and the federa! civil rights laws. Yet Congress

intended and this Court has clearly interpreted the fees

24

provisions in fedcral environmental laws to allow for an

expansion of fee awards as compared to fee applications

in the civil rights context. Accordingly, it is illogical and

unsupportable for the Ninth Circuit to hold the Tribe, a

prevailing party in the present case, to a higher, more re-

strictive standard than the standard under the federal civil

rights laws.

~-0

CONCLUSION

The Supreme Court in Ruckelshaus foreclosed the

availability of attorney's fees to losing parties under the

attorney's fee provision of the Clean Air Act and sixteen

other federal environmental statutes, including Section

1549(g)(4) of the ESA. The Court held that a party

which does not prevail at all on the merits is not entitled

to a fee award. On the other hand, the Court held that

a party seeking to enforce a statue which achieves some

suecess on the merits is entitled to recover a fee award

absent exceptional circumstances.

At issue in the present case is whether the Pyramid

Lake Paiute Tribe, despite its status as a prevailing

party, must nonetheless be required to make an independ-

ent showing that its contribution to the enforcement and

implementation of the Endangered Species Act was ex-

ceptional and substantial before recovering attorney’s

fees. By requiring such a showing the Ninth Circuit’s

decision is fundamentally flawed and inconsistent with

the intent of Congress, decisions of other courts of ap-

peals, and of this Court in Rucke'shaus.

25

Moreover, the Ninth Cireuit’s decision is inconsistent

with decisions of this Court interpreting the attorney’s

fees provisions of the federal civil rights laws, which call

for awards to prevailing parties in all but exceptional

circumstances. This inconsistency cannot be allowed to

stand in light of the clear congressional intent to liberalize

fee awards in environmental litigation as compared to

fee awards in civil rights lawsuits.

For these reasons, this Court should grant the peti-

tion for certiorari to review the significant implications

of the Ninth Cireuit’s decision below and reverse the judg-

ment thereof with instructions to remand for determina-

tion of a reasonable fee.

Respectfully submitted,

JEANNE S. WHITEING

Steven C. Moore

Native American Rights Fund

1506 Broadway

Boulder, CO 80302

(303) 447-8760

Attorneys for the Pyramid Lake

Paiute Tribe of Indians

App. 1

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

Civil No. R-76-152 GJS

CARSON-TRUCKEE WATER CONSERVANCY

DISTRICT, et al.,

Plaintiffs,

vs.

JAMES G. WATT, Secretary of the Interior, et al.,

Defendants,

and

PYRAMID LAKE PAIUTE TRIBE OF INDIANS,

Defendant-Intervenor.

OPINION

(Filed September 29, 1983)

SOLOMON, Judge:

On December 22, 1982, I granted the motion of de-

fendant-intervenor, Pyramid Lake Paiute Tribe of Indians

(Tribe), for costs, expert witness fees, and attorney fees

limited to the issues under the Endangered Species Act

(ESA).

Thereafter, the Tribe filed an application for fees in

which it sought $545,292 in attorney fees and costs.

During my examination of the exhibits and briefs sub-

mitted in support of and in opposition to the requested

award, I became concerned that an award of attorney

fees, particularly of the size requested, was inappropriate

under the facts of this case. I therefore requested argu-

ment on the propriety of my order granting fees, and also

App. 2

on the issue of the amount of such fees if any were to be

allowed.

(nm the basis of the oral arguments, written brief and

my reexamination of the record, including briefs on attor-

ney fees, | have concluded that an award of attorney fees

to the Tribe in any amount would be inappropriate.

Plaintiffs Carson-Truckee Water Conservancy Dis-

trict, Sierra Pacific Power Company and the State of

Nevada, filed this action in which they seek to appropriate

water trom the Lower Truckee River for municipal and

industrial (M & 1) purposes. They contend that the See-

retary of the Interior (Secretary) and other federal de-

fendants, by failing to obtain reimbursement for the costs

of constructing Stampede Dam and Reservoir (Stampede),

violated the Washoe Project Act and related reclamation

laws.

The Government or the Tribe or both over a period of

many years have filed a number of cases to obtain addi-

tional water for the Tribe. Some of these cases were de-

cided against the Government and the Tribe, and others

are still pending. One of these cases was recently decided

by the Supreme Court of the United States. Nevada v.

United States, — U.S. — 108 S.Ct. 2906 (1983). There,

the district court rejected the demand of the Government

for reserve water rights for the Tribe for fishery pur-

poses. The Court of Appeals partly reversed that deci-

sion. Later, the Court of Appeals’ decision was reversed

by the Supreme Court which held that res judicate pre-

vents the United States and the Tribe from litigating their

claims.

App. 3

The Government in its answer to plaintiffs’ complaint

in this case, raised many issues as defenses including the

defense of the ESA.

The Tribe filed a motion to intervene in this case as-

serting that it ‘“‘has an interest in the subject matter of

the action as the beneficial or equitable owner of the

rights to the use of the waters of the Truckee River in.

cluding those stored in Stampede Reservoir ....” The

motion was granted. Thereafter, the Tribe made a num.-

ber of legal contentions. First, the Tribe contended that

the Government had trust obligations which made it im-

proper to compel the Secretary to sell water which was

subject to the reserve water rights claimed by the Govern-

ment and the Tribe in Nevada v. United States, supra.

Second, the Government cannot be compelled to sell water

necessary to enable the Tribe to take advantage of Pyra

mid Lake fishery and to become economically self-suf.

ficient. Third, the Secretary cannot be compelled to vio

late the existing court order in Pyramid Lake Paiute Tril«

of Indians v. Morton. The Tribe also raised the defense

of ESA.

In addition to these substantive defenses, the Tribe

raised a number of technical defenses. They are:

(1) Do plaintiffs have standing to challenge the

Secretary's action?

(2) Do the plaintiffs have a private right of

action under the reclamation laws!

(3) Is the government required to obtain a re-

imbursement contract! If so, can reimbursement be

achieved through a contract to supply M&l water to

the District?

App. 4

These technical defenses were the basis for my

opinion reported at 537 F. Supp. 106. My opinion dis-

cussed the technical issues raised by the Government and

the Tribe and concluded with the following statement:

I hold that the plaintiffs have standing to main-

tain this action, and that they have a private right of

action under the Administrative Procedure Act to en-

force the Secretary’s reimbursement obligation. The

Secretary is required to sell all of Stampede’s water

except that which is necessary to fulfill his trust ob-

ligations to the Tribe and to protect the endangered

species which spawn in the Lower Truckee River.

In that opinion, I also denied the claim of the State of

Nevada that ‘‘the Secretary needs a permit from the State

of Nevada for Stampede’s present operations.”’

I reserved decision on the amount of water the Secre-

tary must provide (1) to satisly his obligations under the

IE:S.A to conserve the endangered and threatened species of

Pyramid Lake, and (2) to satisfy his trust obligations to

preserve the Pyramid Lake fishery for the benefit of the

Tribe.

All parties agreed that the Secretary has obligations

under the ESA and under his trust obligations to the

Tribe which take precedence over his obligations to store

water for M & I uses. The only issue was the amount of

water necessary to fulfill those obligations.

The evidence at the trial consisted primarily of the

testimony of experts presented in written statements and

exhibits submitted by all of the parties, particularly the

plaintiffs and the Tribe. I found that there was substan-

tial evidence to support the Secretary’s plan for operating

Stampede, to restore the qui-ui to a non-endangered sta-

Ta a at

oe

App. 5

tus, and to restore the Lahontan cutthroat trout to the

point where it is no longer a threatened species.

I did not determine the amount of water necessary to

satisfy the Tribe’s fishery rights because the Supreme

Court had not yet determined those rights in Nevada v.

United States. I held it was not necessary to make that

determination because all of that water will be necessary

for many years to come for the qui-ui and the Lahontan

cutthroat trout in order to remove them from their threat-

ened or endangered status.

On the basis of my decision, the Tribe requested at-

torney fees not only from the plaintiffs but also from the

Government. This application was made under the provi-

sions of the Endangered Species Act, 16 U.S.C. § 1531 et

seq., particularly section 1540(g)(4) which permits an

award qt attorney fees whenever the court determines

such an award is appropriate. This is the only statute

under which the Tribe can obtain attorney fees.

The Tribe participated in this action primarily for its

own benefit; that is, to obtain water rights, to establish a

fishery, and to require the Government to furnish it water

in compliance with the Government’s trust obligations.

Nevertheless, the sell-interests of the Tribe would not bar

it from obtaining an award of attorney fees. But to ob-

tain such an award, I believe it is imperative that the

Tribe show that the litigation involved important, complex

or novel issues, that the case aided in interpreting the Act,

and that the Tribe’s efforts substantially contributed to

the goals of the ESA. ‘‘[T]he dominant consideration is

whether litigation by that party has served the public in-

terest by assisting the interpretation and implementation’’

of the statute. Alabama Power Company v. Gorsuch, 672

App. 6

F.2d 1, 3 (D.C. Cir. 1982) ; see also Sierra Club v. Gorsuch,

672 F.2d 33 (D.C. Cir. 1982) and Environmental Defense

Fund v. Environmental Protection Agency, 672 F.2d 42

(D.C. Cir. 1982).

I have concluded that this case will not substantially

contribute to ESA goals. <All parties conceded that the

Secretary has obligations under the ESA which take pre-

cedence over his obligations to store water for M & I uses.

The only ESA issue to be resolved, therefore, was the

amount of water necessary to carry out the purposes of the

Act. While this is important, it does not meet the stand-

ard set out in Alabama Power v. Gorsuch and the com-

panion cases.

In addition, the Secretary had already commenced a

program to help the qui-ui and Lahontan cutthroat trout.

The Government had raised the defense of the ESA in its

original answer and was actively and energetically partici-

pating in the trial of the case. The Tribe concedes that

the counsel for the Government did a first-class job in de-

fending the case, and that the Government made signifi-

cant financial contributions towards its defense.

The Tribe entered the case primarily for its own eco-

nomic self-interest. Most of the issues it raised, particu-

larly those of a technical nature like the standing of the

plaintiffs, were not intended to, nor did they, assist in the

interpretation or implemention of the Act. In fact, some

of these defenses, if they had been successful, would have

had the opposite effect.

In light of all the facts, | have concluded that my

earlier ruling granting attorney fees and costs for the

Tribe’s attorneys was ill-advised and should be vacated.

-

App. 7

Plaintiffs interpret 16 U.S.C. § 1540(g)(1) to mean

that costs, including attorney fees and expert witness fees,

may be awarded to a party under 16 U.S.C. § 1540(g) (4)

only when the party commences the action. Plaintiffs as-

sert that here the Tribe did not commence the action but

raised ESA as one of a number of defenses, and that as a

inatter of law the Tribe may not recover costs and attor-

ney fees under ESA.

Although I do not read the statute that narrowly, it is

unnecessary for me to decide this issue because I have now

concluded that it is not appropriate to grant the Tribe

costs and attorney fees.

DATED this 26th day of September, 1983.

/s/ Gus J. Solomon

United States District Judge

App. 8

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 83-2542

(D.C. No. CV R-76-152 GJS)

CARSON-TRUCKEE WATER CONSERVANCY DIS-

TRICT; SIERRA PACIFIC POWER COMPANY, a cor-

poration; and STATE OF NEVADA,

Plaintiffs-A ppellees,

vs.

SECRETARY OF THE INTERIOR, et al.,

Defendants,

PYRAMID LAKE PAIUTE TRIBE OF INDIANS,

Defendant-Intervenor-Appellant.

Appeal from the United States District Court

for the District of Nevada

Honorable Gus J. Solomon, District Judge, Presiding

Argued and Submiited May 16, 1984

Before: DUNIWAY, SCHROEDER and NORRIS,

Circuit Judges

OPINION

(Filed November 28, 1984)

DUNIWAY, Cireuit Judge:

The Pyramid Lake Paiute Tribe, having successfully

intervened in the Water District’s suit against the Secre-

tary of the Interior, unsuccesslfully sought attorney fees

under the Endangered Species Act, 16 U.S.C. § 1540(g) (4).

Carson-Truckee Water Conservancy Dist. v. Watt, D. Nev.,

1s tte nae Mail bonita Prt

ee

App. 9

1983, 575 F. Supp. 467, (Carson-Truckee III). The Tribe

appeals, arguing that the court applied the wrong legal test

to determine whether an award of attorney fees was ‘‘ap-

propriate.” We affirm.

I. FACTS.

The underlying suit is one of many, over the years,

involving water rights in the Truckee river area of

California and Nevada. The Water District, Sierra Pa-

cific Power Company, and the State of Nevada sued offi-

cials of the Department of Interior, seeking to force sale

of water impounded behind the Stampede Dam on the

Little Truckee River under the Washoe Project Act, 43

U.S.C. § 614. Interior has used the water primarily to

reestablish in Pyramid Lake two species of fish—the cui-ui

fish, an endangered species, and the Lahontan cutthroat

trout, a threatened species—whose survival other diver-

sions of water from the Truckee system has imperiled.

The Tribe, opposing the sale of water for municipal and

industrial use in the Reno-Sparks area, intervened as a

defendant in the suit.

In the first phase of the case, the district court re-

jected several of the Tribe’s defenses, holding that In-

terior must sell the Water District whatever Stampede

Dam water was not needed to fulfill trust obligations to

the Tribe and to protect the fish. Carson-Truckee Water

Conservancy District v. Watt, D. Nev. 2982 [sie], 537 F.

Supp. 106, (Carson-Truckee 1). In the second phase, the

district court held that, under the Endangered Species Act,

Interior must give species conservation priority over other

purposes of Stampede Dam until the fish are no longer

threatened. Carson-Truckee Water Conservancy Districi

App. 10

v. Watt, D. Nev. 1982, 549 F. Supp. 704, (Carson-Truckee

II). The district court also held that because the Endan-

gered Species Act requirements controlled the outcome,

Interior’s trust obligations to the Tribe were not ripe for

decision. Jd. at 713. We recently reviewed these decisions

on the merits. Carson-Truckee Water Conservancy Dis-

trict v. Watt, 9 Cir., 1984, 741 F.2d 257, (Carson-Truckee

IV).

Meanwhile, the district court granted the Tribe’s mo-

tien for costs, expert witness tees, and attorney fees for

services related to the issues under the Endangered Spe-

cies Act. Upon receiving the Tribe’s application, however,

the district court became concerned about whether an

award of attorney fees, particularly tthe amount re-

quested, was appropriate under the facts of the case. Af-

ter hearing fresh argument, the district court concluded

that an award of attorney fees to the Tribe in any amount

was inappropriate. The Tribe appeals.

Il. MERITS.

A. Standard of Review.

The Tribe argues that the district court applied the

wrong legal standard in denying attorney fees to the

Tribe. Such questions of law are freely reviewable on

appeal. Societe de Conditionment v. Hunter Engineering

Co., Inc., 9 Cir., 1981, 655 F.2d 938; 941; Miller v. United

States, 9 Cir., 1978, 587 F.2d 991, 994. However, if the dis-

trict court applied the correct legal standard, we review

attorney fees awards under the Endangered Species Act

for abuse of discretion. Cf. United States v. First Nat.

Bank of Circle, 9 Cir., 1984, 732 F.2d 1444, 1446.

ily le a te stan, ae alt

App. 11

B. The Statute.

The citizen suit provisions of the Endangered Species

Act authorize attorney fees awards when ‘‘appropriate’’:

The court, in issuing any final order in any suit

brought pursuant to paragraph (1) of this subsection,

may award costs of litigation (including reasonable

attorney and expert witness fees) to any party, when-

ever the court determines such an award is appro-

priate.

16 U.S.C. § 1540(g)(4) (emphasis added).

C. The Trial Court’s Decision.

The district court first stated the following standard:

[T]o obtain such an award, I believe it is imperative

that the Tribe show that the litigation involved im-

portant, complex or novel issues, that the case aided

in interpreting the Act, and that the Tribe’s efforts

substantially contributed to the goals of the ESA.

“(Tjhe dominant consideration is whether litigation

by that party has served the public interest by as-

sisting the interpretation and implementation” of the

statute. Alabama Power Conpany v. Gorsuch, 672

F.2d 1, 3 (D.C. Cir. 1982); see also Sierra Club v.

Gorsuch, 672 F.2d 33 (D.C. Cir. 1982); and FEnviron-

mental Defense Fund v. Environmental Protection

Agency, 672 F.2d 42 (D.C. Cir. 2982) [sie].

075 F. Supp. at 469.

D. The Tribe’s Argument.

The Tribe offers a two-step argument. It argues,

first, that the Court of Appeals for the District of Colum-

bia devised a dual standard of ‘‘appropriateness’’ for stat-

utes such as § 1540(g)(4), depending on whether the re-

questing party prevailed on the merits, and that in our

App. 12

case the district court erroneously applied the non-pre-

vailing party standard. It argues, second, that in a deci-

sion announced three months before the district court’s

decision, the Supreme Court held that non-prevailing

parties are not eligible for attorney fees awards. Ruckels-

haus v. Sierra Club, 1983, — U.S. — (slip op., July 1,

1983). Thus, says the Tribe, the Court abolished the non-

prevailing party standard that the district court errone-

ously relied on. We think, however, that both steps of the

arguinent are wrong.

First, the D.C. Cireuit cases, Alabama Power, Sierra

Club, and Environmental Defense Fund, supra; see also

Village of Kaktovik v. Watt, D.C. Cir., 1982, 689 F.2d 222,

224-25, set forth no dual standard. These decisions held

that, under the ‘‘when appropriate” standard (of the at-

torney fees provision of the Clear Air Act, 42 U.S.C.

§ 7607(f)), and similar provisions specifically including

the Endangered Species Act, 16 U.S.C. § 1540(g)(4),

courts could award attorney fees to non-prevailing parties

as well as to prevailing parties. See Ruckelshaus v. Sierra

Club, supra, — U.S. —, —, slip op. at 2 n.1; Kaktovik, 689

F.2d at 224 & n.14. These cases articulated ‘‘one stand-

ard for appropriateness, and that standard allows courts

to award attorneys’ fees to parties who have ‘substantially

contributed’ to the goals of the ... Act.’’ Sterra Club, 672

F.2d at 42 n.10 (emphasis in the original). See also id. at

36: ‘‘the relevant inquiry is whether the litigation—suc-

cessful or not—furthered the goals of the Act.” The cases

‘‘made clear that whether the party claiming costs or fees

has prevailed does not control the inquiry on appropriate-

ness, and that the dominant consideration is whether liti-

gation by the party has served the public interest by as-

App. 13

sisting the interpretation or implementation of the .. .

Act.” Alabama Power, 672 F.2d at 3.

Although these cases involved non-prevailing parties,

they noted that ‘‘even a prevailing or substantially pre-

vailing party who does not substantially contribute to the

goals of the... Act may not be entitled to attorneys’ fees.”’

Sierra Club, 672 F.2d at 38n.8. ‘‘Although a complainant

may have substantially prevailed in an action, the award

of costs and attorney fees does not automatically follow.

There are other factors which the court should consider

in determining the appropriateness of an award of costs

and attorney fees.” Jd. at 39 n.8, quoting Cuneo v. Rums-

feld, D.C. Cir., 1977, 553 F.2d 1360, 1365. See also Roose-

velt Campobello Intern. Park Comm. v. Environmental

Protection Agency, 1 Cir., 1983, 711 F.2d 431, 489-41 & n.15

(awarding fees for prevailing issues proportional to the

extent of the party’s contribution to the development of

the issues, but not for non-prevailing issues, while noting

that “‘suecess is, of course, not the only criterion”); Kak-

tovik, supra, 689 F.2d at 228 & n.44 (‘‘while prevailing vel

non is not to be a conclusive factor, it may be a relevant

consideration”’ in determining whether a party’s contribu-

tion is substantial); Florida Power & Light Co. v. Costle,

5 Cir., 1982, 683 F.2d 941, 943 (awarding fees to the pre-

vailing party not automatically, but because result of suit

will aid in the proper implementation and interpretation of

the statute). We rej.ct the Tribe’s first argument, that

the district court chose the wrong one of two standards.

As a second step, the Tribe argues that Ruckelshaus,

in reversing the D.C. Cireuit’s decision in Sierra Club that

nonprevailing parties are eligible for attorney fees, also

eliminated the ‘‘substantial contribution” standard for

App. 14

non-prevailing parties. The Tribe argues that the test of

‘‘appropriateness” under Ruckelshaus is simply whether

the claimant achieved ‘‘some degree of success on the

merits.’’ See Ruckelshaus, slip op. at 13. Because the

Tribe had some degree of success on the merits, it argues,

it is entitled to an award of attorney fees as a matter of

law. We disagree.

Ruckelshaus decided that it is not ‘‘appropriate” to

award attorney fees to a party that achieved no success on

the merits of its claims. Slip. op. at 2; see Northern

Plains Resource Council v. EPA, 9 Cir., 1984, 734 F.2d 408.

The Court held that Congress intended the ‘‘when appro-

priate’ standard to permit awards to partially as well as

fully prevailing parties. The Tribe invalidly infers from

this holding that all parties who achieve some degree of

success on the merits are not only eligible for, but are en-

titled to attorney fees. But Ruckelshaus dealt only with

eligibility for, not with entitlement to, a statutory award.

See slip op. at 10 n.11 (distinguishing permissive and

mandatory statutory language); Sierra Club, 672 F.2d at

38 n.8 (distinguishing issues of eligibility and entitlement).

Nothing in Ruckelshaus suggests that the Court meant to

reject the rule that, under the ‘‘when appropriate” stand-

ard, an eligible party must make a substantial contribu-

tion to the goals of a statute to be entitled to attorney

fees.

The Tribe further argues that the proper standard for

awarding atiorney fees to prevailing parties is the stand-

ard adopted under the attorney fees provision of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000a-3(b), 2000e-5(k),

and the Civil Rights Attorneys’ Fees Act of 1976, 42 U.S.C.

} 1988. But while the D.C. Circuit cases involve attorney

App. 15

fees provisions that are “‘identical” to 16 U.S.C. § 1540

(g)(4), Ruckelshaus, supra, slip op. at 2 n.1, the Civil

Rights statutes involve the different ‘‘prevailing party”

statutory standard, under which a prevailing plaintiff

‘should ordinarily recover an attorney's fees unless spe-

cial circumstances would render such an award unjust,”

Newman v. Piggie Park Enterprises, Inc., 1968, 390 U.S.

400, 402; but a prevailing defendant may get attorney fees

only if the plaintiff’s action was frivolous, meritless, or

groundless, Hughes v. Rowe, 1980, 449 U.S. 5, 14-15. See

Ruckelshaus, slip op. at 7-9. Because Ruckelshaus did not

disapprove the D.C. Cireuit standard for ‘‘when appro-

priate’ statutes, but only its application to non-prevailing

parties, the district court stated the correct standard.

E. Application of the Standard.

The district court stated its reasons for concluding

that the Tribe’s participation in this action did not sub-

stantially contribute to the goals of the Endangered Spe-

cies Act. The issue under the Act was relatively narrow;

the government had raised the issue before the Tribe in-

tervened, and had energetically litigated the issue; and the

Tribe raised defenses that were inconsistent with assist-

ing in the interpretation or implementation of the Act.

Carson-Truckee III, 575 F. Supp. at 469-70. We hold that

the district court did not abuse its discretion.

F. Posture of the Case.

The attorney fees statute authorizes awards ‘‘in any

suit brought pursuant to paragraph (1) of this subsec-

tion.” 16 U.S.C. § 1540(g)(4). Paragraph (1) provides

that ‘‘any citizen may commence a civil suit” against any

App. 16

person or governmental entity that violates the Act, or

against Interior to compel enforcement of the Act. /d.

§ 1540(¢)(1).. The Water District had argued that be-

cause this is not literally such a suit, the attorney fees pro-

vision does not apply. See Roosevelt Campobelle, 711

F.2d at 440 (raising but not resolving this question).

While indicating that it disagreed with the Water Dis-

trict’s argument, the district court declined to decide the

issue because it had concluded that an award was not ap-

propriate. 575 F. Supp. at 470. We, too, decline.

Affirmed.

App. 17

APPENDIX C

(SEAL)

UNITED STATES DEPARTMENT OF THE

INTERIOR

Fish and Wildlife Service

Washington, D.C. 20240

In Reply Refer To:

FWS/OES

Memorandum

To: Regional Director, Regions 1, 2, 3, 4, 5, 6, and 7

(ARD/FA or ARD/AFF) Acting Associate

From: Director

Subject: Solicitor’s Opinion Regarding Endangered Spe-

cies Act (ESA) Conservation Obligations of

Federal Agencies

Attached, please find the above-mentioned Solicitor’s

(SOL) opinion (dated September 7, 1983). In it, SOL

rejects the district court's conclusion that (Section 7(a)(1)

of the ESA) can mandate a particular conservation pro-

gram for a listed species at the expense of other project

objectives. In other words, SOL feels Federal agencies

have the authority to integrate endangered species con-

servation into project planning but are not required to do

so in any particular manner, The only mandatory require-

‘ment placed on Federal agencies is to insure that their

actions are not likely to jeopardize listed species (Section

7(a)(2) of the ESA). Thus, Biological Opinions should

not include statements saying that unless a given agency

adopts a particular conservation recommendation, it will

be “in violation of its Section 7(a)(1) responsibilities.”

—|

App. 18

The district ccurt’s decision is not precedent setting and

should be applied only to the Stampede Reservoir case.

/s/ Roman H. Koenings

Attachment

UNITED STATES DEPARTMENT OF THE

INTERIOR

Office of the Solicitor

Washington, D.C. 20240

(September 7, 1983)

Memorandum

To: Director, United States Fish and Wildlife Serv-

ice

From: Associate Solicitor, Conservation and Wildlife

Subject: Endangered Species Act conservation obligations

of Federal agencies

We have recently reviewed the district court opinion in

Carson-Truckee Water Conservancy District v. Watt, 549

F. Supp. 704 (D. Nev. 1982), appeal filed No. 83-1549 (9th

Cir., Jan. 3, 1983), which discussed the conservation obli-

gations of Federal agencies under the Endangered Species

Act of 1973 (ESA), as amended, 16 U.S.C. §{§ 1531 e¢ seq.

In the Carson ease, the plaintiffs sought to force the Bur-

eau of Reclamation to store additional water in the Stam-

pede’ Reservoir for municipal and industrial use. Ultimate

diversion of the stored water for such uses would reduce

the flow of water into Pyramid Lake, the habitat for two

fish which are listed under the ESA. The plaintiffs had

contended that the ESA did not prevent the Secretary

App. 19

from operating Stampede Reservoir for municipal and

industrial uses as long as that operation would not jeop-

ardize the continued existence of the cui-ui fish and the

Lahontan cutthroat trout. In response to this contention,

defendants argued that the Secretary had an affirmative

obligation under the ESA to conserve those two fish above

and beyond the substantive prohibition found in Section

7(a)(2) against jeopardizing their continued existence.

The defendants thus cited this higher conservation respon-

sibility as authority for operating Stampede Reservoir so

as to aid in the recovery of the cui-ui and the Lahontan

cutthroat trout. In ruling for the defendants, it is our

opinion that the district court imposed greater burdens

on federal agencies under the ESA than those originally

intended by Congress. Our analysis follows.

Statutory Framework

Five subsections of the ESA are relevant for purposes of

analyzing the district court’s decision in the Carson case.

First, subsection 2(ce)(1) of the ESA sets forth the general

hortatory policy that “all Federal departments and agen-

cies shall seek to conserve endangered and threatened

species and shall utilize their authorities in furtherance of

the purposes of this chapter.” 16 U.S.C. § 1531(¢).

Second, subsection 3(3) of the Act, 16 U.S.C. § 1532(3),

states in part:

The terms “conserve”, “conserving”, and “con-

servation” mean to use and the use of all methods

and procedures which are necessary to bring any en-

dangered species or threatened species to the point

at which the measures provided pursuant to this Act

are no longer necessary... .

App. 20

A third relevant part of the ESA’ is subsection 5(a), 16

U.S.C. ¢ 1534(a), which expressly confers upon the Secre-

tary of the Interior the responsibility for implementing

“a program to conserve fish, wildlife, and plants, includ-

ing those which are listed as endangered species or threat-

ened species pursuant to section 1533 of this title.” This

svhsection has generally been considered to be the true

source of the Secretary’s affirmative conservation respon-

sibilities under the ESA.

The two remaining relevant parts of the Act are subsec-

tions 7(a)(1) and 7(a)(2).! Subsection 7(a)(1), 16 U.S.C.

§ 1536(a)(1), restates the general hortatory language in

subsection 2(c)(1) quoted above and constitutes an affirm-

ative grant of authority to Federal agencies to aid in the

conservation and recovery of listed species through exist-

ing agency programs:

The Secretary shall review other programs ad-

ministered by him and utilize such programs in fur-

therance of the purposes of this chapter. All other

Federal agencies shall, in consultation with and with

the assistance of the Secretary, utilize their authori-

ties in furtherance of the purposes of this chapter by

carrying out programs for the conservation of endan-

gered species and threatened species listed pursuant

to section 1533 of this title.

\Before the enactment of the Endangered Species Act

Amendments of 1978, Pub. L. No. 95-632, 92 Stat. 3751, the

“conservation” and “jeopardize’”’ standards of section 7 were

combined in one lengthy sentence. The 1978 Amendments

added an exemption process and divided the “conservation”

and “jeopardize” provisions into separate sentences within

subsection 7(a). Finally, the Endangered Species Act Amend-

ments of 1979, Pub. L. No. 96-159, 93 Stat. 1241, separated

the “conservation” and “jeopardize’’ standards into subsec-

tions 7(a) (1) and 7(a) (2), respectively.

' App. 21

Subsection 7(a)(2), 16 U.S.C. § 1536(a)(2), on the other

hand, sets out the Act’s major substantive limitation on

the exercise of Federal agency discretion by requiring

that each agency shall:

in consultation with and with the assistance of

the Secretary, insure that any action authorized, fund-

ed, or carried out by such agency (hereinafter in this

section referred to as an “agency action’’) is not likely

to jeopardize the continued existence of any endan-

gered species or threatened species or result in the

destruction or adverse modification of habitat of such

species which is determined by the Secretary, after

consultation as appropriate with affected States, to

be critical, unless such agency has been granted an

exemption for such action by the Committee pursuant

to subsection (h) of this action... .?

Analysis

Although the above subsections of the ESA constitute the

relevant legal framework for addressing the issues raised

in the Carson case, the district court only relied upon sub-

sections 2(¢c)(1), 3(3) and 7(a)(2) in issuing its opinion.

After a cursory recital of the provisions of the first two

of those subsections, the district court cited the Supreme

Court decision in Tennessee Valley Authority v. Hill, 437

U.S. 153 (1978) as standing for the proposition that the

ESA “gives endangered species the highest priority over

all federal projects.” Carson, supra, 549 F. Supp. at 709.

The district court then went on to cite and adopt the hold-

2Subsection 7(a) (2) thus contains two substantive pro-

hibitions: federal agencies shall not ‘jeopardize’ the contin-

ued existence of a listed species or adversely modify its criti-

cal habitat. For purposes of this memorandum, any reference

to the “jeopardy” prohibition under subsection 7(a) (2) should

be understood to also include the prohibition against adverse-

ly modifying critical habitat.

App. 22

ings of two migratory bird hunting regulation cases involv-

ing endangered species, Defenders of Wildlife v. Andrus,

428 F. Supp. 167 (D.D.C. 1977) and Connor v. Andrus, 453

F. Supp. 1037 (W.D. Tex. 1978).5 Relying upon the above

eases, the district court in the Carson case concluded that

. . . the Seeretary is required to give the Pyramid

Lake fishery priority over all other purposes of Stam-

pede until the cui-ui fish and the Lahontan cutthroat

trout are no longer classified as endangered or threat-

ened. Carson, supra, 549 F. Supp. at 710.

We disagree with this conclusion for a number of reasons.

To begin with, no one disputes that the Secretary has ex-

press conservation responsibilities under the ESA. We

have identified these responsibilities as arising specifi-

cally from subsection 5(a), and more generally from sub-

sections 2(c)(1) and 7(a)(1), of the Act. Within the De-

partment of the Interior, the agency that has been dele-

gated the Secretary’s affirmative conservation responsi-

bilities under subsection 5(a) of the Act is the United

States Fish and Wildlife Service. 242 D.M. 1.1A.

Coincidentally, it was also the Fish and Wildlife Service

that was the defendant in the Defenders of Wildlife and

Connor cases (relied upon by the district court in Carson).

The Service was admonished in those two cases for only

focusing on avoiding the “jeopardy” of listed species under

its migratory bird hunting program. However, those cases

did not ultimately turn on the Service’s compliance with

its conservation responsibilities under the ESA. Rather,

sThose cases addressed the relationship between the En-

dangered Species Act, the Migratory Bird Treaty Act, 16 U.S.C.

§§ 703 et seq., and the Administrative Procedure Act, 5 U.S.C.

§§ 551-559, 701-706.

App. 23

they turned on the more narrow grounds of whether the

Service had established an adequate administrative rec-

ord regarding endangered species and migratory bird hunt-

ing so as to rebut the charge that the agency’s hunting

regulations were arbitrary and without a rational basis

under the Administrative Procedure Act. In both eases,

the Service’s regulations were found to be arbitrary, albeit

for entirely different reasons. Thus, instead of being

viewed as authority for establishing a sweeping new set

of stringent endangered species priorities, the Defenders

of Wildlife and Connor cases should be read as fairly nar-

row cases under the Administrative Procedure Act which

do no more than remind agencies of the need to clearly

articulate the factual basis for their regulatory actions.

In addition to putting an inappropriate gloss on the De-

fenders of Wildlife and Connor eases, the district court

in Carson also confused the set of priorities created by

Congress under subsections 7(a)(1) and 7(a)(2). No one

ean dispute after Tennessee Valley Authority v. Hill that

Congress established endangered species conservation as

the highest priority under the latter subsection of the

Act. When a proposed project is found likely to jeopardize

the continued existence of a listed species, the project must

either be exempted under the complicated procedure set

forth in subsections 7(e) threugh (n) of the Act or be

modified or abandoned altogether.

Moreover, as shown by the complex amendments to section

7 enacted in 1978, 1979, and 1982, it has been subsection

7(a)(2), with its rigid set of priorities and procedures,

that has generated the most Congressional scrutiny and

App. 24

review.’ It is significant to note, however, that this lengthy

Congressional debate regarding section 7 has been marked

by conspicuous silence over the substantive impacts, if any,

of subsection 7(a)(1), and with valid reason. For while

subsection 7(a)(1) could be characterized as a general

grant of authority to integrate endangered species con-

servation into other existing federal programs, that sub-

section did not, as did subsection 7(a)(2), establish any

rigid set of priorities among competing, often conflicting,

program objectives. That is, while subsection 7(a)(1)

added endangered species conservation to the potential

list of generic program goals and authorities for a given

project, it did not require that such conservation initiatives

be factored in first. Subsection 7(a)(1) had a more lim-

ited purpose: it resolved once and for all the question as

to whether federal agencies had the authority to add en-

dangered species conservation into their planning proc-

esses. No longer could agencies argue that they lacked

the authority to accomplish that cbjective. While giving

federal agencies this grant of discretionary planning au-

thority, however, Congress did not dictate a particular set

of results. It did not mandate that endangered species

conservation be accorded the highest priority in all plan-

ning efforts.

*See H.R. Conf. Rep. No. 835, 97th Cong., 2d Sess. 25-28

(1982); S. Rep. No. 418, 97th Cong., 2d Sess. 16-22 (1982);

H.R. Rep. No. 567, 97th Cong., 2d Sess. 10-11, 13-15, 24-29

(1982); H.R. Conf. Rep. No. 697, 96th Cong., 1st Sess. 12-16

(1979); S. Rep. No. 151, 96th Cong., 1st Sess. 3-4, 4-6 (1979);

H.R. Rep. No. 167, 96th Cong., 1st Sess. 5-6 (1979); H.R. Conf.

Rep. No. 1804, 95th Cong., 2d Sess. 18-23 (1978); S. Rep. No.

874, 95th Cong., 2d Sess. 2-7 (1978); H.R. Rep. No. 1625, 95th

Cong., 2d Sess., 7-13, 14-15, 19-25 (1978).

App. 25

This difference in approach between subsections 7(a)(1)

and 7(a)(2) has a ready explanation. Subsection 7(a)(1)

provides federal agencies with the authority to “do good

things” for endangered species; t.e., to aid in their re-

covery through compatible agency programs. Subsection

7(a)(2), on the other hand, focuses on the potential for

conflict between a given agency program and endangered

species conservation. In such conflict situations where the

continued existence of a listed species may be at stake,

Congress has made the value judgment that endangered

species conservation comes first. Any lesser choice could

result in extinction, as recognized by the Supreme Court

in Tennessee Valley Authority v. Hill, supra, 487 U.S. at

184-85.

The district court erred in the Carson case, by failing to

recognize this difference in focus between subsections

7(a)(1) and 7(a)(2). It inappropriately applied the

analysis of the Supreme Court in Tennessee Valley Aw-

thority v. Hull (a case focusing on the jeopardy standard

now found in subsection 7(a)(2)) to a dispute regarding

the Secretary’s authority to discretionarily operate Stam-

pede Reservoir for the benefit of endangered and threat-

ened species (a subsection 7(a)(1) case). As to whether

the Secretary had the discretionary authority under the

KSA to integrate endangered species conservation into the

operation of Stampede Reservoir, there can be no doubt.

Subsection 7(a)(1) clearly provides that authority and the

district court’s opinion should have stopped with that con-

clusion. It compounded its error, however, by going fur-

ther and mandating endangered species conservation as

the priority project purpose until such time as the cui-wi

fish and the Lahontan cutthroat trout are recovered.

App. 26

This ordering of priorities is not only inconsistent with

general Congressional intent for subsection 7(a)(1), it

also produces the anomalous result of according greater

substantive weight and impact to subsection 7(a)(1) than

to subsection 7(a)(2).5 Heretofore, the jeopardy standard

under subsection 7(a)(2) was considered to be the only

substantive restriction on agency action under section 7.

Moreover, it has always been the position of the Service

that a federal agency could still be in compliance with sec-

tion 7 for a given project that adversely affects a listed

species, so long as the anticipated level of takings or im-

pacts were not so high as to result in a finding of jeop

ardy.®

SAlthough there is no express legislative history directly

weighing and comparing the relative strengths of subsection

7(a) (1) with 7(a) (2), there can be no doubt that Congress con-

sidered the jeopardy standard of subsection 7(a) (2) as being

the substantive cornerstone of section 7:

The term “is likely to jeopardize” is used because the

fundamental obligation of section 7(a) of the act is that

Federal agencies insure their actions do not jeopardize

the continued existence of an endangered or threatened

species.

S. Rep. No. 151, supra note 4, at 4 (emphasis added).

°The current section 7 regulatory definition of jeopardy

recognizes that a given project can incidentally take a number

of endangered species and still not violate the jeopardy stand-

ard. 50 C.F.R. § 402.02. The level of incidental take allowable

under subsection 7(a) (2) varies, depending on the relative

scarcity of the particular species involved. Congress implicit-

ly ratified this regulatory construction in 1982 by providing in

subsections 7(b) (4) and (0) of the Act that incidental! takings

which occur for a project that received a “no jeopardy” bio-

logical opinion, would not constitute a violation of the taking

prohibitions of section 9. However, if subsection 7(a) (1)’s af-

firmative conservation provisions were the true substantive

(Continued on following page)

App. 27

If one followed the logic of the Carson case, however, one

would now have to assume that this long standing admin-

istrative interpretation of the Act was wrong. It would

no longer be enough to show that a proposed action would

not jeopardize the continued existence of a listed species.

Henceforth you would have to show that a given project

was contributing to the conservation of affected listed

species and would continue to do so until the species were

recovered. Thus, it would now be unacceptable for a pro-

posed project to be slightly adverse to a listed species or

even neutral in its impacts. It would have to affirmatively

promote the recovery of affected listed species, even at the

expense of overriding other legally-authorized project pur.

poses.

This simply is not what Congress could have intended, for

the resultant impacts would be so extreme and devastating

to Federal agency programs that Congress would have un-

questionably addressed the matter in the 1978, 1979 and

1982 amendments to the Act. What they addressed in-

stead was the need to provide an exemption to the only

substantive standard that they perceived to exist in sec-

tion 7, the jeopardy standard in subsection 7(a)(2).

Throughout the exemption process provisions of the Act,

it is a conflict with subsection 7(a)(2) and not subsection

7(a)(1) that is a prerequisite to seeking an exemption.

See 16 U.S.C. § 1536(f), (g)(1) and (3), (h). Yet the

(Continued from the previous page)

yardstick upon which federal programs were to be measured,

Congressional amendments in subsections 7(b) (4) and (0)

would have been pointless, since it is difficult to conceive of

a situation where any level of incidental take could satisfy the

affirmative conservation standard decreed by the district court

in Carson. Thus, it is clear that subsection 7(a) (2) contains the

only substantive mandate controlling agency action under sec-

tion 7.

App. 28

Carson ruling puts a gloss on subsection 7(a)(1) that

makes it more burdensome than subsection 7(a)(2).

Would Congress have spent so must time on subsection

7(a)(2) if subsection 7(a)(1) were even more restrictive?

We think that the obvious answer to that question is ‘‘no.”

Conclusion

For the reasons stated above, we conclude that the inter-

pretations placed upon the Secretary’s conservation re-

sponsibilities in the Carson case are in error and beyond

the intent of Congress. In addition to overlooking the

truly relevant subsections of the ESA, the district court

misplaced its reliance upon the Defenders of Wildlife and

Connor cases. Those cases should be viewed as fairly

narrow cases under the Administrative Procedure Act and

nothing more. Moreover, Tennessee Valley Authority v.

Hill is of questionable relevance, since that case con-

cerned a violation of the substantive prohibition of section

7 (the jeopardy standard) and did not involve the grant of

affirmative conservation authority in subsection 7(a)(1).

While a Congressionally-mandated set of priorities was

established under subsection 7(a)(2) of the Act, no such

ordering of project purposes and priorities was estab-

lished under subsection 7(a)(1). Federal agencies are now

empowered to incorporate endangered species concerns

into project planning, but so long as the jeopardy stand-

ard of subsection 7(a)(2) is not violated, no particular

conservation goal or priority is required under subsection

7(a)(1).

In short, the district court in the Carson case should have

upheld the discretionary authority of the Bureau of Recla-

mation to allocate Stampede Reservoir waters for endan-

gered species conservation purposes and left it at that.

App. 29

As a matter of law, no one conservation regime should be

considered favored or mandated as opposed to another.

The attempt of the district court to mandate a particular

program represents an unwarranted limitation of the dis-

cretionary conservation authorities granted to federal

agencies. A clarification of these matters should thus be

sought on appeal.

/s/ Keith E. Eastin