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

. Us

Office Supreme Court,

FIiLED

\

No. 84-1384 | APR 16 1982

ALEXANDER L STEVAS,

In The oom

'

SUPREME COURT OF THE UNITED STATES

October Term, 1984

PYRAMID LAKE PAIUTE TRIBE OF INDIANS,

Petitioner,

Vv.

CARSON-TRUCKEE WATER CONSERVANCY

DISTRICT, et al.,

Respondents.

PETITIONER'S REPLY BRIEF

STEVEN C. MOORE*

JEANNE S. WHITEING

Native American Rights Fund

1506 Broadway

Boulder, Colorado 80302

(303) 447-8760

Attorneys for the

Pyramid Lake Paiute

Tribe of Indians

* Counsel of Record

April 12, 1985

TABLE OF CONTENTS

Page(s)

BEDLS GE BBS RORESEOR cd di. cosidecseéccocsce §

I. RESPONDENT'S INTERPRETATION OF

THIS COURT'S DECISION IN

RUCKELSHAUS v. SIERRA CLUB IN

FACT TURNS RUCKELSHAUS ON ITS

HEAD AND PRODUCES UNMANAGEABLE

RESULTS. wcccvcccccccccccccccsccccs I

II. RESPONDENT'S CONTENTION THAT

ONLY PARTIES COMMENCING ACTIONS

UNDER SECTION 11(g)(1) OF THE

ESA MAY RECEIVE FEE AWARDS

UNDER SECTION 11l(g)(4) IS

UNSUPPORTABLE. ..ccccccccccccceses 8

Bode COG Rec ce secceeneeseeeeeeeess 12

TABLE OF AUTHORITIES

Cases Page(s)

Alabama Power Company v.

Gorsuch, 672 F.2d 1 (D.C. Cir.

DE 4h 666 6S OS 66S 664086 6466640680604 4, 8

Environmental Defense Fund v.

Environmental Protection

Agency, 672 F.2d 42, 49 (D.C.

Ge, BESS CESSES 6H SESE eecceceeseseese 43

Metropolitan Washington

Coalition for Clean Air v.

District of Columbia, 639 F.2d

Dee Cee Che SOE ceccccccccecccesess SF

Cases (cont.) Page(s)

Palila v. Hawaii Department of

Land and Natural Resources,

+. @ wt: ei ee eee

Ruckelshaus v. Sierra

Club, U.S. » 203 §.Ct.

3274, 3279 CSPESP sb csecececes 2, 3, 5, 6

Sierra Club v. Gorsuch, 672

Fie. SS Ubces Ghee Abeal cécce oeee6e 5 Be €

Village of Kaktovik v. Watt,

689 F.2d 222 (D.C. Cir. 1982)...... 4, 12

Federal Legislation

Endangered Species Act, 16

GebsGe SB LSE S) cccccccecs eee ea 2 e*eee l, M

Endangered Species Act, 16

Fs § ESSSCS) Ch dccceocecscece -. 2 me me . 9, 12

Endangered Species Act, 16

i oe § USSR GD CE docccceeceses 9, ll, 12

Toxic Substances Control Act,

15 = ee RP aa ll

Legislative Materials

H.R. 14032, 94th Cong., 2d

Sess. § 19(c)(3) BA). 0 Bee eee ll

S. 3149, 94th Cong., 2d Sess.,

§ 19(c)(3) (1976) e*eee#ees eoeeneeeeeeerseeeeessee#s# * ll

ii

I. RESPONDENTS' INTERPRETATION

OF THIS COURT'S DECISION

IN RUCKELSHAUS v. SIERRA

CLUB IN FACT TURNS

RUCKELSHAUS ON ITS HEAD

AND PRODUCES UNMANAGEABLE

RESULTS.

Respondents in their briefs in

opposition to certiorari raise a number

of contentions intending only to

obfuscate the real issue in this case.

The real question is whether Congress,

through the enactment of § ll(g) of the

Endangered Species Act (and similar

citizen's suit provisions of other

federal environmental laws) intended to

impose a substantial, exceptional contri-

bution standard upon prevailing parties

prior to the award of reasonable

attorney's fees.

Congress clearly did not intend such

a result. The legislative history only

supports the interpretation that a

prevailing party status is a sufficient

ale

condition for an award of attorney's

fees in all but unusual or exceptional

cases. This result is more compelling

when viewed in the proper historical

context; i.e., a period when Congress

intended to divise a statute for

awarding fees to environ-

mental litigants broader than any other

fee statute enacted to that time. This

Court in Ruckelshaus v. Sierra Club,

U.S. , 103 S.Ct. 3274, 3279 (1983),

has already recognized that Congress

meant to liberalize fee awards in

environmental litigation as compared

with, for example,

federal civil rights litigation. And if

that is the intended result why would

Congress impose such a restrictive

standard upon environmental litigants

seeking fee awards when it had not done

so in other contexts?

o2e

The Ninth Circuit and Respondents

also fail to recognize that the

substantial, exceptional contribution

Standard used to deny Petitioner

attorney's fees evolved in the federal

Judicial system prior to the Ruckelshaus

decision, in a period when courts had

considered the fees provisions in

environmental laws to allow awards to

iosing parties. See, e.g., Sierra Club

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

1982); and Metropolitan Washington

Coalition for Clean Air v. District of

Columbia, 639 F.2d 802 (D.C. Cir. 1981).

In that context it makes eminent

sense that a stringent standard be

imposed upon losing parties before

allowing an award of fees, to avoid

frivolous litigation and parasitic

intervention. And while that standard

has received a substantial measure of

ajo

|

criticism,2/ it did serve as a basis

for courts to deny fee awards to losing

parties in a majority of cases and grant

them in a selected few. Compare Village

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

Cir. 1982), with Sierra Club v. Gorsuch,

Supra.

In contrast, there has been no

uncertainty or confusion demonstrated by

courts over awards to prevailing or

partially prevailing parties. See

i/see Alabama Power Company v.

Gorsuch, 672 F.2d 1 (D.C. Cir. 1982)(J.

Wilkey, dissent). When the Court of

Appeals for the District of Columbia

stated that it had articulated “one

Standard of appropriateness, and that

standard allows courts to award

attorneys' fees to parties who have

‘substantially contributed' to the goals

of the... Act" it was attempting to

resolve the confusion regarding the

circumstances under which losing parties

would receive fee awards rather than

imposing the standard on both losing and

prevailing parties. See Sierra Club v.

Gorsuch, 672 F.2d at 42, n.10.

da

Palila v. Hawaii Department of Land and

Natural Resources, 639 F.2d 495 (9th

Cir. 1981) (affirming an award of

attorney's fees under the ESA without

imposition of a substantial, exceptional

contribution standard).

Moreover, this Court in Ruckelshaus

clearly intended to avoid needless,

wasteful inguiries into the nature of a

prevailing party's contribution in all

cases but where the success was trivial

or purely procedural in nature.

Ruckelshaus, 103 S.Ct. at 3279, n.9.

The result Petitioner's urge is

practical and workable. Given this

Court's distaste for seemingly endless

litigation over attorney's fee awards, a

sentiment shared by Congress, the inter-

pretation of Ruckelshaus which the Ninth

Circuit and Respondents advocated must

be rejected. Yet Respondents make no

aSe

effort to conceal the confusion and

waste their result would perpetuate:

Ruckelshaus did not disrupt

existing care (sic) law

requiring a party to make a

contribution. Thus, after

Ruckelshaus, in order for a

fee award to be deemed

"appropriate," a party must

not only prevail but he must

also make a contribution.

Brief In Opposition for State of Nevada,

p.5. It was, in fact, this

"case-by-case scrutiny by federal

courts" which this Court sought to avoic

once and for all by its decision in

Ruckelshaus 103 S.Ct. at 3279.2/

2/contrary to Respondent's

claim, Petitioner does not confuse

eligibility with entitlement. See

Brief in Opposition of

Carson-Truckee Water Conservancy

District and Sierra Pacific Power

Company, p.6. Ruckelshaus makes no

reference whatsoever to 4

distinction between eligibility for

and entitlement to an award of

attorney's fees. After Ruckelshaus

there is little doubt that

prevailing parties are (cont.)

afq

From the outset of this litigation

Petitioner has taken an active, extensive

role in the protection of two species of

fish threatened with imminent

extinction. The fact that Petitioner's

active, extensive involvement in the

litigation -- through which it ultimately

prevailed -- achieved the objectives of

the ESA should result in an award of

fees to Petitioner under the Ruckelshaus

decision.=’

2/(cont.)entitled to an award

absent exceptional circumstances.

The result Respondents urge --

namely, that winning parties are

merely eligible for an award --

would subvert the intent of the

Statute and be repugnant to the

Gecision in Ruckelshaus.

3/Respondents claim that

Petitioner is merely in the

litigation for its own pecuniary

benefit. Nothing could be further

from the truth. The fact that

Petitioner may ultimately establish

a commercial fishery as a valid

exercise of its treaty (cont. )

~ =

Because of the Petitioner Tribe's

status as an intervenor, questions of

possible overlap of efforts, if any,

relating to the litigation of ESA issues

might exist. See, e.g., Alabama Power

Company v. Gorsuch, 672 F.2d l, at 2, 3

(9th Cir. 1983). However, this status

should only be considered by the

district court on remand in determining

the amount of fees awarded, rather than

a basis to deny fees outright.

II. RESPONDENTS' CONTENTION

THAT ONLY PARTIES

COMMENCING ACTIONS UNDER

SECTION 11(g)(1) OF THE

ESA MAY RECEIVE FEE AWARDS

UNDER SECTION 11(g)(4) IS

UNSUPPORTABLE.

By its use of the word "commence"

Congress clearly did not intend § ll(g)

3/(cont.) rights if two

species are removed from the

endangered and threatened status

does not diminish the valuable

efforts Petitioner has made in

achieving the objectives of the ESA.

aQa

of the ESA, 16 U.S.C. § 1540(g), to be

interpreted and applied so narrowly as

to allow fee awards only to parties

literally filing suit under the Act. A

far more reasonable and supportable

interpretation is that parties

"commencing" or initiating the

enforcement of the ESA should receive

fee awards if they prevail in their

efforts.

First, the statute clearly endorses

actions "to enjoin any person" from

violations of the Act. 16U.S.C. §

1540(g)(1). The context of this case,

albeit somewhat different from

traditional ESA enforcement suits, left

Petitioner Tribe with no alternative but

to intervene as a defendant. The

alternative of awaiting the outcome of

the suit with the possibility of having

to sue to enjoin the sale of water if

=9=

Respondents prevailed would have been

unduly risky.

Significantly, Respondents have

never in the course of this litigation

challenged Petitioner's standing to

raise or litigate ESA issues. Moreover,

despite the fact that the Secretary

first raised the ESA as a defense, it

only made sense for Petitioner to

intervene and likewise raise the same

defense. And, as alluded to in its

petition for writ of certiorari,

Petitioner's suspicion that its

interests would not be adequately

represented was ultimately confirmed by

actions of the Secretary subsequent to

commencement of the action.

Second, the attorney's fee provision

of the ESA provides for an award of fees

and costs to “any party." 16 U.S.C. §

1540(g)(4). In the context of an

a1 Ou

identical fees provision of the Toxic

Substances Control Act, 15 U.S.C. §

2618(d) Congress interpreted the phrase

"any party” to “mean the parties seeking

to enforce the rights granted by this

section and can include an intervenor,

or a defendant in some cases. ...

(Emphasis added.) S. 3149, 94th Cong.,

2d Sess., § 19(c)(3) (1976); H.R. 14032,

94th Cong., 2d Sess. § 19(c)(3) (1976),

quoted in Environmental Defense Fund v.

Environmental Protection Agency, 672

F.2d 42, 49 (D.C. Cir. 1982).

Significantly, while ruling on other

grounds, the district court below

expressed in its decision the view that

Respondent's narrow construction of §

1540(g)(1) and (4) had no merit. See

Pet. App. 7. The more liberal

interpretation advocated by Petitioner

would truly effectuate the purposes of

«l=

the ESA and congressional intent. See

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

225.

III. CONCLUSION

With changing administrations and

policies, the enforcement and implementa-

tion of federal law is all too often

left to the political whim of officials

not concerned with the long term

objectives of those laws. Through the

enactment of federal environmental

legislation Congress has attempted to

chart a long-term course for protecting

the environment; those goals should not

be allowed to be subverted by agency

whim. Hence, the role of the “private

watchdog" has been accorded an important

Status by Congress in the federal

enforcement scheme. Petitioner

effectively played the role of the

private watchdog in this case and

=) 2e

ultimately prevailed in enforcing the

objectives of the ESA. For these

efforts, the ESA supports a reasonable

award of attorney's fees upon remand to

the district court.

Respectfully submitted,

STEVEN C. MOORE*

JEANNE S. WHITEING

Native American Rights Fund

1506 Broadway

Boulder, Colorado 80302

(303) 447-8760

Attorneys for the

Pyramid Lake Paiute

Tribe of Indians

* Counsel of Record

=) 3