Opposition Brief — Pyramid Lake Paiute Tribe of Indians v. Carson-Truckee Water Conservancy District

(>) Office -Supreme

No. 84-1384 ~ FILER

IN THE MAR 29 1985

Supreme Court of the United Staferocunoer v. srevas,

CLERK

OCTOBER TERM, 1984

PYRAMID LAKE PAIUTE TRIBE OF INDIANS,

Petitioner,

VS.

CARSON-TRUCKEE WATER CONSERVANCY DISTRICT, et al.,

Respondents.

On Petition for Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit

BRIEF OF RESPONDENTS CARSON-TRUCKEE WATER

CONSERVANCY DISTRICT AND SIERRA PACIFIC

POWER COMPANY IN OPPOSITION

ANDREW J. OGILVIE*

JOHN M. COLLETTE

COLLETTE & ERICKSON

555 California Street, 43rd Floor

San Francisco, California 94104

(415) 788-4646

JOHN MADARIAGA

SUSAN L. OLDHAM

Sierra Pacific Power Company

Post Office Box 10100

Reno, Nevada 89510

(702) 789-4349

JAMES W. JOHNSON, JR.

JOHNSON & ADAMS, LTD.

111 California Street

Reno, Nevada 89509

(702) 323-8616

Attorneys for Carson- Truckee

Water Conservancy District and

Sierra Pacific Power Company in

Opposition

*Counsel of Record

BEST AVAILABLE COPY Ul

QUESTIONS PRESENTED

1. Whether the court of appeals was correct in affirming the

district court’s conclusion that it is inappropriate to award attor-

ney’s fees to petitioner in this case?

2. Whether Congress has authorized the court to make an

attorney’s fees award under Section 11(g)(4) of the Endangered

Species Act, 16 U.S.C. § 1540(g) (4), in a case that does not

meet the criteria of Sections 11(g)(1) and 11(g)(2), 16 U.S.C.

§§ 1540(g) (1) and 1540(g) (2)?

il

LIST OF PARTIES*

Respondents, plaintiffs-appellees in the United States Court of

Appeals for the Ninth Circuit, are the State of Nevada, the

Carson-Truckee Water Conservancy District and the Sierra Pa-

cific Power Company. Petitioner, defendant intervenor-appellant

in the Ninth Circuit, is the Pyramid Lake Paiute Tribe of Indians.

The Secretary of the interior, the Commissioner of the Bureau of

Reclamation, and the Regional Director, Mid-Pacific Region,

Bureau of Reclamation were defendants in the main action, but

did not actively participate in the appeal on the attorney’s fee

issue. By letter dated March 12, 1985, the Solicitor General has

advised the Clerk that the Government does not intend to file a

‘ brief at this stage of the proceedings unless requested by the

Court to do so.

*Pursuant to Rules 21.1{b) and 28.1 of this Court, respondents

inform the Court that ©.erra Pacific Power Company is a subsidiary of

Sierra Pacific Resources, which has two additional subsidiaries—Lands

of Sierra, Inc. and Sierra Energy Company. Valmy 2 Construction

Company is the subsidiary of Sierra Pacific Power Company.

ili

TABLE OF CONTENTS

CLECs. pe eadeecn ene soesséeneeesas

Sect eeehe bsp vs ncaceeeniseivaneeses

iv eas seus ce senses eneeas's wa

ee esac can eb ee vnecacdedes

Reasons why the petition should be denied.............

I

The decision below does not raise important questions of

federal law nor does it frustrate the intent of Congress

II

The decision is in accord with the Court’s decision in

er re i cue wa neebeesssencac

The decision below is in accord with the decisions of the

Courts of Appeals for the District of Columbia and the

Nee cwineeacnese

The decision below is supported on independent grounds

not reached by the courts below ................055.

a i lh Ea

iv

TABLE OF AUTHORITIES CITED

Cases

Alabama Power Co. v. Gorsuch, 672 F.2d 1 (1982) .....

Alyeska Pipeline Service Co. v. Wilderness Society, 421

Se CUR Vivecacdkgudbetseesks<asauesubess

Carson-Truckee Water Conservancy District v. Watt, 537

Pa, Gee CU RUUD weacccrcnccceanceacceres

Carson-Truckee Water Conservancy District v. Watt, 549

eo Me er Ter ere Ter Tree

Carson-Truckee Water Conservancy District v. Watt, 575

Pe See CO BOND annonces cccstndsaseveca

Carson-Truckee Water Conservancy District v. Clark, 741

> bg fs 3 errr rrr Terry TT Tree

Carson-Truckee Water Conservancy District v. Secretary of

the Interior, 748 F.2d 523 (9th Cir. 1984) ...........

Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C.Cir. 1977) .....

Delaware Citizens For Clean Air, Inc. v. Stauffer Chem.

Co., 62 FRD 353 (D.Del. 1974), afd 510 F.2d 969 (3rd

Se; ME rh eC re ou atin... ete ue

Environmental Defense Fund v. Environmental Protection

PE, Gre Fe He COED 5 cance wei cacsicesesine

Hughes v. Rowe, 449 U.S. 5 (1980) ..............085.

Middlesex Cty. Sewerage Auth. v. Sea Clammers, 453 U.S.

PE kahskecdeuhndads kededehusiuheseekeeenc4

Natural Resources Defense Council v. Environmental

Protection Agency, 484 F.2d 1331 (lst Cir. 1973) ....

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

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400

(A rT er ere ere eer oe re ee rer

4,

~

10

Vv

TABLE OF AUTHORITIES CITED

CASES

Page

Ruckelshaus v. Sierra Club, —_. US. —, 103 S.Ct.

eek, FE Gee Pe GD 0 kn 55 40d devbnanasusee 6, 7,9

Sierra Club v. Costle, 657 F.2d 298 (D.C.Cir. 1981) .... 6

Sierra Club v. Gorsuch, 672 F.2d 33 and 684 F.2d 972

SE ED . s 440. oak bs 5 cn kk eaGenaneneennnee 5, 6, 7,8

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

ried coactshend Rewer eanecnee Ree aban etter es 7, 8,9

Statutes and Rules

Clean Air Act, Section 307(f), 42 U.S.C. §7607(f) ..... 6,7

Endangered Species Act, Section 11 (g):

Sp Ey ED ck v0 5 ccrchbadeabacncacchases l

as NEED 5 5500 40.0005500bs00ua KORE Li3

Se a: EEE bx ca ccnsetsseunsesasd i, 1, 3, 6, 10

Gees ID a0-6006sknsncnsiataues i, 1, 4,6, 7,9

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

Re re eee ree er ers ty 7

Toxic Substances Control Act, 15 U.S.C. §2618(d) ..... 7

U.S. Supreme Court Rules:

Pes 6500 06s%n eeu eek akhcsuusknueeeVeneeteeas 5

ey OE Es 44.404 606sncnns bu caseteveueeneees ii

No. 84-1384

IN THE

Supreme Court of the United States

OcToBerR TERM, 1984

PYRAMID LAKE PAIuTE TRIBE OF INDIANS,

Petitioner.

VS.

CARSON-TRUCKEE WATER CONSERVANCY DisTRICT, et al.,

Respondents.

On Petition for Writ of Certiorari to the United States Court

of Appeais for the Ninth Circuit

BRIEF OF RESPONDENTS CARSON-TRUCKEE WATER

CONSERVANCY DISTRICT AND SIERRA PACIFIC

POWER COMPANY IN OPPOSITION

STATUTE TO BE CONSTRUED

Petitioner seeks attorney's fees under Section |1(g) of the

Endangered Species Act (ESA), 16 U.S.C. §1540(8), but cites

only one brief excerpt of the relevant statute. Pet. 3.' Petitioner

ignores the interrelated paragraphs that restrict attorney's fee

awards to certain types of cases, 16 U.S.C. 1540(g)(1), and that

impose stringent notice requirements, 16 U.S.C. 1540(g) (2). The

relevant provision, Section |1(g) of the Endangered Species Act,

16 U.S.C. 1540(g), is reprinted in its entirety in Appendix A.

' In fact, petitioner misquotes the excerpt it relies upon. Section 1540

(g) (4) provides:

“(4) 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, whenever the court determines such award is

appropriate.”

The quotation at page 3 of the petition omits the italicized language.

2

STATEMENT OF THE CASE

Respondents sued the Secretary of the Interior in 1976 to

compel it to sell water from Stampede Reservoir for municipal

and industrial use in the Reno/ Sparks area. Respondents’ theory,

in a nutshell, was that because Stampede was authorized and

built as a federal reclamation project the has a

mandatory duty under the federal reclamation laws” to sell

Stampede’s water for reimbursable uses, which include municipal

and industrial uses. Although Stampede was completed in 1970,

the Secretary refused to sell any water and instead used all of it

for restoration programs for two endangered species of fish, the

cui-ui and the Lahontan cutthroat trout. Those fish constitute the

fishery at petitioner's Pyramid Lake Reservation. Throughout this

litigation the Secretary has continued to use Stampede's water

exclusively for petitioner's fishery.

The Secretary's answer raised numerous defenses, including

the Endangered Species Act. The Secretary claimed that the

ESA authorized him to use Stampede’s water exclusively for the

fish, even though that method of operation totaily converted

Stampede from a reciamation project to a fishery restoration

project. The Secretary claimed that the ESA authorizes him to do

that, even though some of the water could be sold without

jeopardizing the listed species’ and even though the conversion of

the project to serve fishery uses exclusively violates Congress’

express $2 million limitation on spending for fish and wildlife

development.‘

* The reclamation laws that establish the Secretary's duty to seek

reimbursement are thoroughly discussed in the Petition for Wnt of

Certiorari (No. 84-808) filed by Nevada, Carson-Truckee Water

Conservancy District and Sierra Pacific Power Company in Carson-

Truckee Water Conservancy District v. Clark, 74\ F.2d 257 (9th Cir.

1984).

*The Secretary concedes that Stampede water could be sold for

municipal and industrial uses without jeopardizing the cui-ui or the

trout. See Interrogatory No. 23 and Federal Defendants’ Answer

thereto, Trial Exhibit No. 226.

*See 43 U.S.C. 6l4c.

Petitioner, which intervened because it did not believe its

economic interests in the fishery would be “adequately repre-

sented by the Secretary,” Pet. 4, parrotted the Government's

answer, including the ESA defense. It raised no new ESA

defenses or issues. Instead, it raised several technical defenses

including questions of standing, private right of action, and

whether or not municipal and industrial use is an authorized use

of Stampede’s water.

The district court rendered three separate decisions in the case.

In Carson-Truckee Water Conservancy District v. Watt, $37

F.Supp. 106 (D.Nev. 1982) (CTWCD /), it ruled against peti-

tioner on its technical defenses. In Carson-Truckee Water Con-

servancy District v. Watt, $49 F.Supp. 704, 710 (D.Nev. 1982)

(CTWCD 11), it held that the ESA requires the Secretary “to

give the Pyramid Lake fishery priority over all other purposes of

Stampede until the cui-ui fish and the Lahontan cutthroat trout

are no longer classified as endangered or threatened.” In Carson-

Truckee Water Conservancy District v. Watt, 57S F.Supp. 467

(D.Nev. 1983) (CTWCD /1/), it denied petitioner's request for an

award of attorney's fees and costs.

The district court denied petitioner's fee request because it

concluded that any fee award would be “inappropriate.” 575

F.Supp. at 468. The ESA provision upon which petitioner relies,

16 U.S.C. § 1540(g)(4), allows attorney's fee awards in certain

types of cases “whenever the court determines such an award is

appropriate.” (Emphasis added. )*

* The Ninth Circuit affirmed in Carson- Truckee Water Conservancy

District v. Clark, 741 F.2d 257 (1984) (CTWCD IV). Plaintiffs’

petition for certioran, No. 84-808, was denied on March 25, 1985.

* Respondents raised in the district court the issue of whether Con-

gress has auihonzed an attorney's fee award in a case such as this.

Section |1(g) plainly restricts attorney's fee awards to private actions

that are brought to enforce the ESA against a violator of that Act when

the Secretary refuses to discharge his duties under the Act. See 16

U.S.C. §§ 1540(g) (1) and (2). Respondents raised that issue as an

additional ground for denying petitioner's attorney's fee request, but the

district court and the court of appeals declined to decide it. The issue is

discussed in greater detail at Section IV, infra.

4

In deciding that any award would be inappropriate, the district

court considered whether the litigation involved important,

complex or novel issues, whether it aided in the interpretation of

the ESA, and whether the Tribe’s efforts had substantially

contributed to the goals of the ESA. 575 F.Supp. at 469. Its

denial of petitioner’s fee application rests squarely on its findings

of fact. It found that the Secretary had commenced a recovery

program for the cui-ui and trout long before the litigation began,

and that the- Secretary, not petitioner, had raised the ESA

defense. Jd. at 470. Further, it found that the Secretary made a

substantial financial contribution to the defense, and that the

Secretary’s attorneys had done a “first-class job in defending the

case.” Jd. In contrast, petitioner had entered the litigation

“primarily for its own economic self-interest” and had contributed

principally by raising issues of a “technical nature [that] were not

intended to, nor did they, assist in the interpretation or

implementation of the Act.” Jd.

Petitioner appealed. The Ninth Circuit, in an opinion by Judge

Duniway, affirmed. Carson-Truckee Water Conservancy District

v. Secretary of the Interior, 748 F.2d 523 (9th Cir. 1984)

(CTWCD V). It held that the district court had used the correct

legal standard to judge appropriateness and that it had not abused

its discretion. /d. at 526.

REASONS WHY THE PETITION SHOULD BE DENIED

i

THE DECISION BELOW DOES NOT RAISE IMPORTANT

QUESTIONS OF FEDERAL LAW NOR DOES IT

FRUSTRATE THE INTENT OF CONGRESS

At pages 9 through 13 of the petition, petitioner erroneously

contends that this case raises important questions of federal law

and that the decision below “frustrates” Congressional intent.

Petitioner argues that any case involving an Endangered Species

issue should result in a fee award to the prevailing party except in

“the most exceptional of circumstances.” Pet. 13.

Petitioner’s argument ignores the plain language of the statute.

Section 11(g)(4), 16 U.S.C. § 1540(g) (4), allows the court to

5

make an award in certain types of cases “whenever the court

determines such an award is appropriate.” (Emphasis added.)

Construing almost identical language in the attorney’s fee

provision of the Clean Air Act, the District of Columbia Circuit

explained:

“Congress expressly used ‘appropriate’ as the standard in

section 307(f); it specifically gave to courts the authority to

interpret that standard on a case-by-case basis (an entirely

logical delegation, since courts would be in the best position

to assess the contributions of the parties and the importance

of such case). . . . Clearly Congress knows the difference

between ‘prevailing’ and ‘appropriate.’ Sierra Club v.

Gorsuch, 672 F.2d at 42, n 10, emphasis in the original.

Awards are discretionary, not mandatory. Petitioner’s argument

seeks to deprive the courts of this discretion, even though

“Congress intended to give the Courts greater latitude.”

Environmental Defense Fund v. Environmental Protection

Agency, 672 F.2d 42, 48 (D.C.Cir. 1982). Petitioner’s proposed

rule of mandatory awards in all but the most exceptional of

circumstances would deprive the courts of the ability “to allocate

the costs of litigation equitably.” Natural Resources Defense

Council v. Environmental Protection Agency, 484 F.2d 1331, 1338

(1st Cir. 1973).

Furthermore, the case does not meet the criteria of S.Ct. Rule

17.1 which requires “special and important reasons” to warrant

the granting of certiorari. The denial of attorney’s fees was based

on a unique factual situation that is unlikely to recur. The suit

was not to enforce the ESA but to enforce the reclamation laws.

The ESA was a defense. Long before petitioner became involved,

the Secretary had started the fishery restoration program and had

raised the ESA defense. Further, petitioner’s intervention was

prompted by concern for its own economic interests, not concern

for endangered species. Pet. 3-4. While petitioner may have

reason to distrust the Secretary when its economic interests are

involved, see, e.g., Nevada v. United States, 463 U.S. 110 (1983),

that was not the type of citizen participation that Congress

wanted to encourage. To the contrary, Congress expressly

disallowed private enforcement actions when the Secretary has

6

taken action. 16 U.S.C. § 1540(g)(2). Lastly, the case is unlike

an ESA enforcement action in that petitioner spent most of its

effort trying to prevent the court from reaching the ESA issue.

Because of these peculiar facts, the decision below is of interest

only to the parties to the litigation and does not raise any

important issue of federal law worthy of review by this Court.

II

THE DECISION IS IN ACCORD WITH THE COURT'S

DECISION IN RUCKELSHAUS V. SIERRA CLUB

To interest the Court in this case, petitioner argues that the

decision beiow conflicts with Ruckelshaus v. Sierra

Club, US. , 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983). Pet.

13-18. Petitioner interprets Ruckelshaus to require the courts to

award attorney’s fees to the prevailing party unless there are

exceptional circumstances why an award should not be made. Pet.

14. The argument is based on a misreading and misinterpretation

of Ruckelshaus.

Ruckelshaus was a suit by the Sierra Club and the

Environmental Defense Fund in the District of Columbia Circuit

for review of the Environmental Protection Agency’s standards

governing emissions of carbon-dioxide from coal-fueled power

plants. The court of appeals rejected the plaintiffs’ claims on the

merits. Sierra Club v. Costle, 657 F.2d 298 (D.C.Cir. 1981).

Nonetheless, in Sierra Club v. Gorsuch, 672 F.2d 33 and 684 F.2d

972 (D.C.Cir. 1982), it awarded the plaintiffs attorney’s fees

under Section 307(f) of the Clean Air Act, 42 U.S.C. § 7607(f).

Like Section 11(g) (4) of the ESA, Section 307(f) of the Clean

Air Act allows the court to award attorney’s fees in certain

proceedings when such an award is appropriate.

This Court reversed that attorney’s fee award in Ruckelshaus v.

Sierra Club, supra. The Court held that some success on the

merits must be obtained before a party becomes “eligible” for a

fee award under § 307(f). Ruckelshaus, 103 S.Ct. at 3276.

In stretching to find a conflict between the decision below and

Ruckelshaus, petitioner confuses eligibility for an award with

7

entitlement to an award. Ruckelshaus dealt with eligibility. It did

not consider the question of entitlement and therefore there is no

conflict.

Il

THE DECISION BELOW IS IN ACCORD WITH THE

DECISIONS OF THE COURTS OF APPEALS FOR THE

DISTRICT OF COLUMBIA AND THE THIRD CIRCUITS

Petitioner erroneously contends that the Ninth Circuit’s

decision conflicts with decisions by the Courts of Appeals for the

District of Columbia and the Third Circuits. Pet. 19-20. It argues

that the District of Columbia Circuit has established a

dualstandard for determining appropriateness depending upon

whether the requesting party prevailed on the merits. It claims the

district court erroneously applied the non-prevailing party

standard by requiring petitioner to show it made a substantial

contribution to the goals of the ESA. Again, petitioner

misconstrues the cases upon which it relies.

The District of Columbia Circuit decisions, Alabama Power

Co. v. Gorsuch, 672 F.2d 1 (1982), Sierra Club v. Gorsuch, 672

F.2d 33 (1982), Environmental Defense Fund v. Environmental

Protection Agency, 672 F.2d 42 (1982), and Village of Kaktovik v.

Watt, 689 F.2d 222 (1982), interpreted the “whenever...

appropriate” standard as used in the attorney’s fee provisions of

the Clean Air Act, 42 U.S.C. § 7607(f), the Toxic Substances

Control Act, 15 U.S.C.§ 2618(d), the Outer Continental Shelf

Lands Act, 43 U.S.C. § 1349(a) (5), and the Endangered Species

Act, 16 U.S.C. § 1540(g)(4). Those cases articulated ‘one

stafidard for appropriateness, and that standard allows courts to

award attorneys’ fees to parties who have ‘substantially

contributed’ to the goals of the... Act.” Sierra Club, 672 F.2d at

42 n 10. (Emphasis in the original.) Further, the court of appeals

said that “the relevant inquiry is whether the

litigation—successful or not furthered the goals of the Act.” /d. at

36. The cases “made clear that whether the party claiming costs

or fees has prevailed does not control the inquiry on

appropriateness, and that the dominant consideration is whether

8

litigation by the party has served the public interest by assisting

the interpretation or implementation of the... Act.” Alabama

Power, 672 F.2d at 3.

The District of Columbia Circuit expressly disavowed any

suggestion that the prevailing party is automatically entitled to an

award of fees. “Even a prevailing or substantially prevailing 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

38 n 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.

Rumsfeld, 553 F.2d 1360, 1365 (D.C.Cir. 1977).

The factors which the District of Columbia Circuit considered

in determining appropriateness in those cases are the same as the

factors considered by the district court in this case, namely

whether the litigation involved important complex or novel issues,

Sierra Club, 672 F.2d at 38-39, Village of Kaktovik, 689 F.2d at

224-225, whether the litigation aided in the interpretation of the

ESA, Sierra Club, 672 F.2d at 40, and whether the requesting

party’s efforts substantially contributed to the goals of the statute,

Sierra Club, 672 F.2d at 41, Village of Kaktovik, 689 F.2d at 224-

225. The district court and the Ninth Circuit used the same test.

CTWCD III, 575 F.Supp. at 469; CTWCD V, 748 F.2d at 525.

Delaware Citizens For Clean Air, Inc. v. Stauffer Chem. Co. 62

FRD 353 (D.Del. 1974), affd 510 F.2d 969 (3rd Cir. 1975),

which is cited at page 20 of the petition, is consistent with this

test. Plaintiffs there commenced an action even though the

defendant chemical manufacturer was already seeking an EPA

variance for more time to comply with emission standards. The

EPA, like the Secretary in this case, was actively enforcing the

Clean Air Act. The district court held that “‘a private suit in such

circumstances is not the sort of private suit Congress sought to

encourage in order to aid the limited enforcement powers of state

9

and federal regulatory agencies and... is not an appropriate case

for an award of attorneys fees.” 62 FRD at 357.’

IV

THE DECISION BELOW IS SUPPORTED ON

INDEPENDENT GROUNDS NOT REACHED BY THE

COURTS BELOW

Petitioner bases its fee request on Section 11(g)(4) of the

ESA, 16 U.S.C. § 1540(g) (4), which provides that:

(4) 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 amy party, whenever the court

determines such award is appropriate.” (Emphasis added.)

Petitioner, however, ignores the italicized language.

Paragraph (1) of Section 11(g) lists three narrowly-defined

types of citizen enforcement actions that may be brought under

the ESA. They are actions to enjoin any person who is in violation

of the Act, actions to compel the Secretary to promulgate

’ Petitioner also argues that review should be granted because the

Ninth Circuit’s interpretation of the ESA attorney’s provision is

inconsistent with the interpretations of the attorney’s fee provisions in

various civil rights acts. Pet. 21-24. But while the District of Columbia

Circuit cases involve attorney's fee statutes that are identical to Section

11(g) (4) of the ESA, Ruckelshaus, 103 S.Ct. at 3276 n 1, the civil

rights statutes cited by petitioner involve different standards and

different policy considerations. See e.g, Newman v. Piggie Park

Enterprises, Inc., 390 U.S. 400, 402 (1968); Hughes v. Rowe, 449 U.S.

5, 14-15 (1980). No court of appeals has held that the attorney's fee

provisions of the ESA and other similariy-phrased statutes should be

construed and applied the same way as the fee provisions of the civil

rights acts. And, contrary to th> suggestion at page 22 of the petition, the

District of Columbia Circuit has not “analogized to the federal civil

rights laws” in construing the fee provisions of these environmental acts.

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

cited by petitioner as its authority, does not mention any civil rights act.

10

emergency regulations, and actions to compel the Secretary to

perform non-discretionary duties under the Act. Citizen suits that

fit within Section 11(g)(1) are allowed, “except as provided in

paragraph (2).” Paragraph (2) contains notice provisions that

preclude a private citizen from bringing an action under the ESA

until and unless written notice has been given to the alleged

violator. Moreover, no private action is allowed if the Secretary

has taken action. 16 U.S.C. § 1540(g) (2).

This case does not satisfy these requirements. Petitioner has

never sought to enjoin respondents from violating any provision of

the ESA. Petitioner has never given any notice required under the

notice requirements of Section 11i(g)(2). And since the

Secretary has been actively carrying out his duties under the

ESA, petitioner has never brought an action to compel him to do

so. Under the circumstances, the attorney’s fee provision of

Section 11(g)(4) provides no authority for the award of

attorney’s fees in this case. Alyeska Pipeline Service Co. v.

Wilderness Society, 421 U.S. 240 (1975); see also Middlesex Cty.

Sewerage Auth. v. Sea Clammers, 453 U.S. 1 (1981).

1]

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari

should be denied.

March 27, 1985

ANDREW J. OGILVIE*

JOHN M. COLLETTE

COLLETTE & ERICKSON

555 California Street, 43rd Floor

San Francisco, California 94104

(415) 788-4646

JOHN MADARIAGA

SUSAN L. OLDHAM

SIERRA PACIFIC POWER COMPANY

Post Office Box 10100

Reno, Nevada 89510

(702) 789-4349

JAMES W. JOHNSON, JR.

JOHNSON & ADaAms, LTD.

111 California Street

Reno, Nevada 89509

(702) 323-8616

Attorneys for Carson- Truckee

Water Conservancy District

and Sierra Pacific Power

Company

*Counsel of Record

(Appendix A follows)

APPENDIX A

Subsection 11(g) of the Endangered Species Act of 1973, as

amended, 16 U.S.C. §1540(g), provides as follows:

Citizen Suits

(g)(1) Except as provided in paragraph (2) of this

subsection any person may commence a civil suit on his own

behalf—

(A) to enjoin any person, including the United

States and any other governmental instrumentality or

agency (to the extent permitted by the eleventh

amendment to the Constitution), who is alleged to be in

violation of any provision of this chapter or regulation

issued under the authority therof; or

(B) to compel the Secretary to apply, pursuant to

section 1535(g) (2) (B) (ii) of this title, the prohibitions

set forth in or authorized pursuant to section 1533(d) or

1538(a)(1)(B) of this title with respect to the taking of

any resident endangered species or threatened species

within any State; or

(C) against the Secretary where there is alleged a

failure of the Secretary to perform any act or duty under

section 1533 of this title which is not discretionary with

the Secretary.

The district courts shall have jurisdiction, without regard to

the amount in controversy or the citizenship of the parties, to

enforce any such provision or regulation, or to order the

Secretary to perform such act or duty, as the case may be. In

any civil suit commenced under subparagraph (B) the

district court shall compel the Secretary to apply the

prohibition sought if the court finds that the allegation that

an emergency exists is supported by substantial evidence.

(2)(A) No action may be commenced under

subparagraph (1)(A) of this section—

(i) prior to sixty days after written notice of the

violation has been given to the Secretary, and to any

alleged violator of any such provision or regulation;

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(ii) if the Secretary has commenced action to

impose a penalty pursuant to subsection (a) of this

section; or

(iii) if the United States has commenced and is

diligently prosecuting a criminal action in a court of the

United States or a State to redress a violation of any

such provision or regulation.

(B) No action may be commenced under subparagraph

(1))B) of this section—

(i) prior to sixty days after written notice has been

given to the Secretary setting forth the reasons why an

emergency is thought to exist with respect to an

endangered species or a threatened species in the State

concerned; or

(ii) if the Secretary has commenced and is

diligently prosecuting action under section

1535(g)(2)(B) (ii) of this title to determine whether

any such emergency exists.

(C) No action may be commenced under subparagraph

(1)(C) of this section prior to sixty days after written notice

has been given to the Secretary; except that such action may

be brought immediately after such notification in the case of

an action under this section respecting an emergency posing

a significant risk to the well-being of any species of fish or

wildlife or plants.

(3)(A)_ Any suit under this subsection may be brought

in the judicial district in which the violation occurs.

(B) In any such suit under this subsection in which the

United States is not a party, the Attorney General, at the

request of the Secretary, may intervene on behalf of the

United Sates as a matter of right.

(4) 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, whenever the court

determines such award is appropriate.

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(5) The injunctive relief provided by this subsection

Shall not restrict any right which any person (or class of

persons) may have under any statute or common law to seek

enforcement of any standard or limitation or to seek any

other relief (including relief against the Secretary or a State

agency).