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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 1065

## Text

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Oftice -Supreme Court, US.

kiL&ED
. APR 5 !985
No. 84-1384 ALEXANDER L. STEVAS,
ein 2X
IN THE

Supreme Court of the linited States

OCTOBER TERM, 1984

PYRAMID LAKE PAIUTE TRIBE OF INDIANS,
Petitioner,
V.

CARSON-TRUCKEE WATER CONSERVATION DISTRICT, et al.,
Respondents.

On Petition for a Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit

BRIEF IN OPPOSITION FOR STATE OF NEVADA

BRIAN MCKAY
Attorney General of Nevada
Heroes Memorial Building
Carson City, Nevada 89701
(702) 885-4170

HAROLD A. SWAFFORD *
JOHN W. HOFFMAN
Special Deputies Attorney General
290 South Arlington Avenue
P. O. Box 187
Reno, Nevada 89504-0187
(702) 322-4081

Attorneys for Respondents

* Counsel of Record

ain
WILSON - EPES PRINTING Co., INc.

- 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether the courts below properly held that an award
of attorneys’ fees to the Petitioner was inappropriate
under the Endangered Species Act where the case itself
did not substantially contribute to Endangered Species
Act goals and where the Petitioner did not substantially
contribute to the goals of the Act.

(i)

TABLE OF CONTENTS

Page
ee We ED on sc cassesesensnatuamasmeen i
STATEMENT OF THE CASB ......................................... 1
I. The Decision Of The Ninth Circuit In This Case
Does Not Conflict With Ruckelshaus v. Sierra
RIN a a a SR RS ee 4
II. The Ninth Circuit’s Decision Does Not Conflict
With Decisions Of Other Circuits 0... 5
III. There Are Additional Reasons For Affirming
EET 2
IV. Awards of Attorneys’ Fees In Civil Rights Cases
Are Not Relevant ................... OORT R sibtaseidinada 9
CONCLUSION ......... {<n 9 SEI ae SREY ae CE 10

(iii)

iv

TABLE OF AUTHORITIES

Cases Page
Alabama Power Company v. Gorsuch, 672 F.2d 1
(D.C, Cir. 1982) 3
Carson-Truckee Water Conservancy District v.
Watt, 587 F. Supp. 106 (D. Nev. 1982) ) 6

Environmental Defense Fund v. Environmental
Protection Agency, 672 F.2d 42 (D.C. Cir.

1982) 3, 6
Ruckelshaus v. Sierra Club, —— U.S. ——, 108

S. Ct. 3274 (1983) 4,5
Sierra Club v. Gorsuch, 672 F.2d 33 (D.C. Cir.

een 3

Miscellaneous

16 USC § 1540(g) (1) 4,8
16 USC § 1540(g) (4) 8
43 USC § 614 1,2

IN THE
Supreme Court of the Wuited States

OCTOBER TERM, 1984

No. 84-1384

PYRAMID LAKE PAIUTE TRIBE OF INDIANS,
Petitioner,
Vv.

CARSON-TRUCKEE WATER CONSERVATION DISTRICT, et ai.,
Respondents.

On Petition for a Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit

BRIEF IN OPPOSITION FOR STATE OF NEVADA

STATEMENT OF THE CASE‘

The Carson-Truckee Water Conservancy District, Sierra
Pacific Power Company and the State of Nevada filed
this action in 1976 for mandamus under the Washoe
Project Act (43 USC § 614, et seg.) seeking to compel
the Secretary of the Interior and other federal defend-
ants to enter into a contract to supply Plaintiffs a por-

1 The statement of the case by the Petitioner generally describes
the litigation. We attempt here not to repeat facts accurately
stated by Petitioner, but to correct misstatements of facts by Peti-
tioner and to supplement the statement with relevant facts that have
been omitted by Petitioner.

2

tion of the yield of Stampede Reservoir for M & I use
in the cities of Reno and Sparks, Nevada. Pursuant to
the Washoe Project Act Congress required that Stampede
be used for irrigation, flood control, power generation,
fish and wildlife and “other beneficial purposes”. Con-
gress limited fish and wildlife use of the Stampede water
to $2 million out of a total expenditure of $52 million.
43 USC S§ 614ic) (d).

The federal defendants had commenced negotiations
for a water supply contract with the Plaintiff Conserv-
ancy District during the 1960's but finally refused to pro-
ceed, alleging the government’s trust responsibilities to
the Pyramid Lake Pauite Indians and the Tribe’s Winters
reserved rights as a rationale for not proceeding with the
contract negotiations. The Plaintiffs then filed suit.

The government answered the complaint, raising nu-
merous defenses for its refusal to complete the contract,
including the Secretary’s discretion not to contract, the
government's fiduciary duty to the Tribe and the En-
dangered Species Act.

The Tribe moved to intervene in the action on the
ground that it was the equitable owner of the waters
under the Winters doctrine, and that a sale of water to
the Plaintiffs would interfere with the Tribe’s plans to
develop a commercial fishery in the lower Truckee River
and Pyramid Lake.

The district court granted the Tribe’s motion to in-
tervene and the Tribe then raised several defenses as a
bar to Plaintiffs’ action including Plaintiffs’ lack of
standing, lack of a private right of action and the lack
of authority of the Secretary to sell Stampede waters
for M & I purposes. The Tribe also raised the En-
dangered Species Act issue that had been asserted by the
government.

The district court, in its opinion denying the Tribe's
motion for attorneys’ fees found that the litigation did

3

not aid in interpreting the Act and that the Tribe's ef-
forts did not substantially contribute to the goals of the
Act. Pet. App. 5, 6. All parties stipulated that the Act
was applicable and the only issue to be tried was the
amount of water necessary to meet the needs of the fish.
The district court found further:

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 participating in the trial of the case.
The Tribe concedes that the counsel for the Govern-
ment did a first-class job in defending the case, and
that the Government made significant financial con-
tributions towards its defense.

The Tribe entered the case primarily for its own
economic self-interest. Most of the issues it raised,
particularly those of a technical nature like the
standing of the plaintiffs, were not intended to, nor
did they, assist in the interpretation or implementa-
tion of the Act. In fact, some of these defenses, if
they had been successful, would have had the opposite
effect.’

Pet. App. 6.

Based on its findings, the district court then concluded
that the Tribe had not met the test promulgated by Ala-
bama Power Company v. Gorsuch, 672 F.2d 1 (D.C. Cir.
1982); Sierra Club v. Gorsuch, 672 F.2d 33 (D.C. Cir.
1982) and Environmental Defense Fund v. Environ-
mental Protection Agency, 672 F.2d 42 (D.C. Cir. 1982):

2 The district court’s findings were based on substantial evidence
and were not challenged by the Tribe on appeal. Although the
Tribe, in its Petition for Writ of Certiorari, now attempts to argue
that it made additional arguments and that the government did
a poor job and took positions below contrary to the interests of the
Tribe and the fish, none of these arguments has any merit and must
be rejected where they are being raised for the first time in this
Court.

q

[T]he dominant consideration is whether litigation by
[the party seeking attorneys fees} has served the
public interest by assisting the interpretation and
implementation of the statute.

Pet. App. 5.

On appeal the Tribe did not challenge any of the dis-
trict court’s findings or conclusions. The Tribe raised
only two legal issues:

1. Whether the district court erred as a matter
of law by applying the standard set forth in Ale-
bama Power Company v. Gore veh.

2. Whether the Tribe was entitled to an attor-
ney’s fee despite the fact that it was a defendant-
intervenor and not a party “commencing” a suit “to
enjoin a violation” of the ESA as required by 16
USC § 1540‘ g¢)(1).*

On appeal to the Ninth Circuit, the Tribe argued that
this court’s holding in Ruckelshaus v. Sierra Club, ——
US. , 103 S. Ct. 3274 (1983) overruled Alabama
Power Company, and like cases, and established a new
test whereby a party need not contribute anything to the
goals of the ESA, te., so long as a party prevails on a
central issue he is entitled te attorneys’ fees notwith-
standing his lack of substantia! contribution.

The Ninth Circuit rejected the Tribe’s argument and
held that Ruckelshaus only ruled that a non-prevailing
party was not eligible to be awarded attorneys’ fees.
That case did not, contrary to the assertions of the Tribe,
overrule cases requiring contribution by a party seek-
ing fees.

Il. The Decision Of The Ninth Circuit In This Case Does
Not Conflict With Ruckelshaus v. Sierra Club.

The issue before the court in Ruckelshaus v. Sierra
Club was whether a losing party could be awarded at-

* The Ninth Circuit rejected the Tribe's first argument and, thus
never reached the Tribe's second issue.

5

torneys’ fees under the Clean Air Act
had advanced the purposes of the Act.
that a losing party is not eligible to receive attorneys’
fees notwithstanding his contribution to the goals of
Act. Ruckelshaus did not hold, as contended Peti-
tioner, that a prevailing party is automatically entitled
to an attorney's fee as a matter of law. That is a fatal
flaw in the Petitioner’s argument.

Ruckelshaus did not disrupt existing care law requir-
ing a party to make a contribution. Thus, after Ruckels-
haus, in order for a fee award to be deemed “appropri-
ate”, a party must not only prevail but he must also
make a contribution.

The heart of the Tribe's Petition for certiorari is its
argument that Ruckelshaus requires that a prevailing
party be awarded an attorney's fee as a matter of law.
This argument was rejected by the Ninth Circuit because
there is nothing in Ruckelshaus to support it. Pet. App.
13, 14. By the same token, this petition for certiorari,
which is based on the same argument, should be denied.

To award an attorney fee to a prevailing party “as a
matter of law” flies in the face of the Ruckelshaus opin-
ion wherein the court indicated that lower courts should
have discretion in making fees awards:

We do not mean to suggest that private parties
should be treated in exactly the same manner as gov-
ernmental entities. Differing abilities to bear the
cost of legal fees and differing notions of responsibil-
ity for fulfilling the goals of the Clean Air Act likely
would justify exercising special care regarding the
award of fees against private parties. 103 S. Ct.
3285, n. 12. Emphasis supplied.

Il. The Ninth Circuit's Decision Does Not Conflict With
Decisions Of Other Circuits.

In order to find some basis for review by this court,
Petitioner argues that the Ninth Circuit’s decision con-
flicts with cases decided by the District of Columbia

6

Court of Appeals and the Third Circuit Court of Ap-
peals. Petitioner’s position is that those courts have
promulgated two standards: one for prevailing parties
(who are entitled to attorneys’ fees as a matter of law)
and another for losing parties (who must contribute to
the goals of the particular environmental act at issue).

Petitioner argues that in Environmental Defense Fund
v. Environmental Protection Agency

“no mention whatsoever was made of the substantial
contribution test in the decision awarding attorneys’
fees.”

Pet., 19. Therefore, Petitioner reasons, a prevailing party
must automatically be entitled to attorneys’ fees. Peti-
tioner fails to recognize that in EDF v. EPA the govern-
ment did not contest the eligibility of EDF for an attor-
neys’ fee award:

Although EPA does argue that EDF’s claims
should be rejected for lack of adequate documenta-
tion . . . there is no real claim that EDF is not en-
titled to some amount of attorneys’ fees. 672 F.2d
47, n. 2.

It would be highly unusual for a court to discuss the
“appropriateness” issue where the party liable for the
payment of fees has, in essence, stipulated that fees are
appropriate. It should also be noted that EDF v. EPA
is devoid of any suggestion that attorneys’ fees should
be awarded to a party who has not made a contribution
toward the goals of the Act.

The Petitioner would have this court promulgate a
new rule requiring a “losing” party to pay attorneys’
fees whenever a “prevailing” party * raises an ESA issue,

4In the instant case, the Respondents prevailed on all issues
litigated against the Petitioner. Carson-Truckee Water Conserv-
ancy District v. Watt, 537 F.Supp. 106 (D. Nev. 1982). Respondents
did not prevail on the issue it litigated against the government
regarding the quantity of water needed for the fish species. But,

7

regardless of whether that party ultimately makes any
contribution toward the goals of the Act. Such a rule
would not only overrule all existing case law regarding
attorneys’ fee awards, but would promote parasitic liti-
gation by parties, and attorneys, only interested in ob-
taining fees without making a significant contribution
toward the enforcement of environmental statutes.

The Petitioner’s argument that the courts have set up
two separate standards is frivolous and was carefully
analyzed by the Ninth Circuit and rejected. The cases
cited by Petitioner from the D.C. and the Third Circuit
reveal that only one standard has evolved:

. . . we believe our opinion makes clear that we have
articulated one standard for appropriateness, and
that standard allows courts to award attorneys’ fees
to parties who have “substantially contributed” to
the goals of the... Act. 672 F.2d 42, n. 10 (em-
phasis in original).

This court should be especially skeptical of the motives
of intervenors who attempt to extract large fees from
litigation without making a substantial contribution. As
was noted in Alabama Power Co. v. Gorsuch, an inter-
venor has a burden to show some “unique contribution :”

If ever an intervenor can recover attorneys’ fees
from a party on whose side it participated . . . the
justification would have to be a clear showing of
some unique contribution of the intervenor to the
strength of that party’s legal position.

It is submitted that an intervenor should make a
“unique contribution” regardless of the party from whom
he seeks attorneys’ fees.

as found by the district court (which finding has never been chal-
lenged) this issue did not substantially contribute to ESA goals,
Pet. App. 6.

8

III. There Are Additional Reasons For Affirming The
Decision Below.

The district court. and the Ninth Circuit held that it
was not “appropriate” to award the Petitioner attorneys’
fees in this case. Neither court was, thus, required to
reach the alternative ground for denial of attorneys’ fees
raised by the respondents, i.e., that the Tribe did not
comply with statutory prerequisites.

The Petitioner relies on 16 USC § 1540(g) (4) which
provides:

The court, in issuing any final order in any suit ®
brought pursuant to paragraph (1) of this subsec-
tion, may award costs of litigation (including reason-
able attorneys’ fees and expert witness fees) to any
party, whenever the court determines such award is
appropriate. Emphasis supplied.

“Paragraph (1)” of the subsection states that:

any person may commence a civil suit... (A) to
enjoin any person . . . who is alleged to be in viola-
tion of any provision of this chapter or regulation
issued under the authority thereof. 16 USC § 1540
(g) (1).

The statute also provides:

No action may be commenced under subparagraph
(1) (A) of this section ... 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.

No notice of any alleged violation was ever given by
the Petitioner to either the Secretary or the Respondents.

5 Due to the arguments in the courts below, the Petitioner is,
no doubt, very concious that it has never brought a suit pursuant
to “paragraph (1).” Nevertheless, Petitioner omits important por-
tions of this statute (See, Pet., 3) in an apparent attempt to avoid
this argument.

9

In addition, no action was commenced “to enjoin” a “vie
lation” of the Act.

The suit below was commenced by Respondents for
mandamus to require the Secretary to deliver water un-
der the provisions of the Washoe Project Act. The Re-
spondents did not violate the ESA and agreed that the
fish species were entitled to water from Stampede reser-
voir. The issue at trial concerned whether there was
water available over and above the amount needed for
the fish that could be sold for M & I purposes.

In the circumstances, the courts below could have de-
nied attorneys’ fees to the Petitioner on either of two
grounds: First, that no attorney’s fee was proper be-
cause the Petitioner did not commence a suit to enjoin
a violation or give the notice required by the statute
and, second, that attorneys’ fees were not “appropriate’’.
Both courts denied attorneys’ fees on the second ground
and did not reach the other ground. It is submitted that
either ground was sufficient to deny attorneys’ fees to
the Petitioner.

IV. Awards Of Attorneys’ Fees In Civil Rights Cases Are
Not Relevant.

The Petitioner’s final argument is that this court
should apply the rules regarding awards of attorneys’
fees in civil rights cases. Cases awarding attorneys’ fees
under Civil Rights laws are not germane, however, since
they involve different considerations than cases constru-
ing environmental statutes. Generally, the result in a civil
rights action is indicative of whether a person’s civil rights
were, or were not, violated. Thus, an inquiry into whether
an attorney’s fee is warranted in a civil rights case is
entirely different from an environmental case where the
result gives no indication as to whether a fee is “ap-
propriate.” It is not at all surprising that different tests
have been applied in civil rights litigation than in en-
vironmental litigation. The civil rights cases cited by
Petitioner have no bearing on this action and the courts

10

below correctly applied the rules developed by the D.C.
Circuit in Alabama Power, Sierra Club and EDF v.
EPA.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

BRIAN MCKAY
Attorney General of Nevada
Heroes Memorial Building
Carson City, Nevada 89701
(702) 885-4170

HAROLD A. SWAFFORD *
JOHN W. HOFFMAN
Special Deputies Attorney General
290 South Arlington Avenue
P. O. Box 187
Reno, Nevada 89504-0187
(702) 322-4081

Attorneys for Respondents

* Counsel of Record

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2472%3A3. Public record. Not legal advice.