Petition for Writ of Certiorario — Pacific Lumber Co. v. Marbled Murrelet

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99598 ocr 41999

No.

-BEHEt Ot itt- CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1999

PACIFIC LUMBER COMPANY, a Delaware corporation;

SCOTIA PACIFIC COMPANY, LLC, a Delaware corporation;

and SALMON CREEK CORPORATION, a Delaware corporation,

Petitioners,

¥.

MARBLED MURRELET (Brachyramphus marmoratus);

NORTHERN SPOTTED OWL (Strix occidentallis caurina); and

ENVIRONMENTAL PROTECTION INFORMATION CENTER,

INC.

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

EDGAR B. WASHBURN JARED G. CARTER

Counsel of Record General Counsel

CHRISTOPHER J. CARR PACIFIC LUMBER COMPANY

WASHBURN, BRISCOE & MCCARTHY 125 Main Street

55 Francisco Street, Suite 600 P.O. Box 37

San Francisco, CA 94133 Scotia, CA 95565

Tel: (415) 421-3200 Tel: (707) 764-2222

Fax: (415) 421-5044 Fax: (707) 764-4400

FRANK SHAW BACIK, ESQ.

CARTER, BEHNKE, OGLESBY & BACIK

167 Mason Street, Suite 300

P.O. Box 720

Ukiah, California 95482

Tel: (707) 462-6694

Fax: (707) 462-7839

Attorneys for Petitioners

\29¢

QUESTION PRESENTED

Whether the neutrally-worded fee-shifting provision of the

federal Endangered Species Act (“ESA”), 16 U.S.C. section

1540(g)(4), providing for a discretionary award of reasonable attorney

and expert witness fees to “any party, whenever the court determines

such award is appropriate” is to be governed by the dual standard

favoring civil rights plaintiffs of Christiansburg Garment Co. y.

EEOC, 434 U.S. 412 ( 1978), or by the evenhanded rule found

applicable to neutrally-worded fee-shifting statutes in Fogerty vy.

Fantasy Records, Inc., 510 U.S. 517 (1994).

PARTIES TO THE PROCEEDING

Petitioners, defendants below, are The Pacific Lumber Company,

a Delaware corporation, Scotia Pacific Company, LLC, a Delaware

corporation, ' and Salmon Creek Corporation, a Delaware

corporation.”

Respondents, plaintiffs below, are Marbled Miurrelet

(Brachyramphus marmoratus), Northern Spotted Owl (Strix

occidentallis caurina), and Environmental Protection Information

Center, Inc., a California corporation.

Defendants in the district court, who did not participate in the

appellate proceedings below are Bruce Babbitt, Secretary,

Department of the Interior; Mollie Beattie, Director, United States

Fish and Wildlife Service; Michael Spear, Regional Director,

United States Fish and Wildlife Service; and the United States Fish

and Wildlife Service.

1 Scotia Pacific Company, LLC is the successor in interest to Scotia Pacific

Holding Company.

? Petitioners are subsidiaries or affiliate companies of the following corporations

that have issued shares to the public: MAXXAM Inc.; MAXXAM Group, Inc.;

MAXXAM Properties Inc.; Kaiser Aluminum and Chemical Corp.; and Kaiser

Aluminum Corp. None of these entities are parties to this litigation.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........-ssssssssssssssssseccsnscessnseencnsnscssssssssen i

DADTING TO THE PROCEEDING .oic.ccccccncsccccscsecssesessssccsassescses ii

IIL. ansisdncanpsnseenbonnernvinsnasacbens iii

a. scvunasnbsbnnsseneninicomavensantosn vi

I snienennbissannanampnniaviants 1

a ss lbamoeppneniennnnnnsads 2

STATUTORY PROVISION INVOLVED. .......::::s:sssssesssessesessees 2

A UN I a cscissasicannssnoirsvanvesonsneiesvecsovanene 2

al dastannesniannnnre 2

B. THE UNDERLYING REGULATORY SCHEME......... 4

FR Te I acti conscsnicoscesesesinsasivascense 6

D. PALCO’S REQUEST FOR ATTORNEYS’ FEES........ 9

REASONS FOR GRANTING THE WRIT ........ssssesesesesseseseees 11

A. THIS COURT’S URGENT INTERVENTION IS

NEEDED TO ELIMINATE CONFLICTS AND

CONFUSION PREVAILING IN THE LOWER

SANG CS A SER pe ee ee 11

B. THE QUESTION WHETHER THE “DUAL

STANDARD” APPLIES TO THE AWARD OF

ATTORNEYS’ FEES UNDER THE

ENVIRONMENTAL PROTECTION LAWS

(AND, SPECIFICALLY, THE ESA) IS OPEN IN

OE a nee 14

C. THE COURT SHOULD REJECT THE DUAL

STANDARD FOR THE AWARD OF

ATTORNEYS’ FEES IN ALL EXCEPT CIVIL

RIGHTS CASES ..2.......cccssccscscssscsercsensccsscssescscesensonceees 16

ill

COG IIG ciecessesinainnssverssnesessennntnvainsssisecuscsoscnnvessessenanccnvns 22

APPENDIX

Appendix A

Marbled Murrelet, et al. v. Babbitt, et al., No. 98-

15788 (9th Cir. August 25, 1999) (denying petition

for rehearing and rehearing en DAN) ........cccccescseeeeseeeeneeeees la

Appendix B

Marbled Murrelet, et al. v. Babbitt, et al., 182 F.3d

1091 (9th Cir. 1999) (affirming district court’s denial

of petition for attorneys’ 1008) ............scccccssecsccscssssceesersesseores 3a

Appendix C

Marbled Murrelet, et al. v. Babbitt, et al., No. C95-

3261 LCB, 1998 U.S. Dist. LEXIS 4266 (N.D. Cal.

March 31, 1998) (denying petition for attorneys’

Appendix D

Marbled Murrelet, et al. v. Babbitt, et al., No. C95-

3261-LCB, 1997 U.S. Dist. LEXIS 9138 (N.D. Cal.

June 24, 1997) (granting motions for summary

PII vi cisticsieasssnicccpnnesdinsnnosnnen tnsarcenensinaeensvienbiaxnneenaseene 29a

Appendix E

Marbled Murrelet, et al. v. Babbitt, et al., 111 F.3d

1447 (9th Cir. 1997) (“Marbled Murrelet II’)

(vacating preliminary INJUNCTION)..........:ccccceeseereeereeereeeesens 42a

Appendix F

Marbled Murrelet, et al. v. Babbitt, et al., No. C95-

3261-LCB (N.D. Cal. April 9, 1996) (granting

motion for preliminary INJUNCHION).........:ccceeceeeeeeseeeeeeeeeeees 47a

Appendix G

Marbled Murrelet, et al. v. Babbitt, et al., 83 F.3d

1068 (9th Cir. 1996) (“Marbled Murrelet I”)

(reversing grant of preliminary injunction) ..............:000 74a

Appendix H

Marbled Murrelet, et al. v. Babbitt, et al., No. C95-

3261 MMC, 1996 U.S. Dist. LEXIS 13856 (N.D.

Cal. September 29, 1995) (granting motion for

TD SE isc siesninndsintsecasddatineatinidsscnsioncdinssnsaid 85a

Appendix I

Endangered Species Act Citizen Suit Provision, 16

U.S.C. section 1540(g)

TABLE OF AUTHORITIES

CASES

Alyeska Pipeline Service Co. v. Wilderness Society,

SE Ee ee aici panadeinndallicraptinicnnitibiantiltienanianasbicias 11,18

Atlantic States Legal Foundation, Inc. v. Onodaga

Department of Drainage & Sanitation,

GOP FT. Semmmh. BO GALI. TAY. UDB) cnsccovescnicnssscsacsscessnessecssscnscns 12

Bennett v. Spear,

Be ele Bee FD teticcatiisiainialatsnilisdenndinnniesiniamanianad 10, 18, 20

Briggs Christian Morris-Smith v. Moulton Niguel Water

District, .

44 F. Supp. 2d 1084 (S.D. Cal. 1999) .0.............sssssssscsscssssseoes 12

Carson-Truckee Water Conservancy District v. Secretary

of the Interior,

748 F.2d 523 (9th Cir. 1984), cert. denied, Pyramid

Lake Paiute Tribe v. Carson-Truckee Water

Conservancy District, 471 U.S. 1065 (1985)......... eee passim

Christiansburg Garment Co. v. EEOC,

Oe halite ansbiinccidinsietcnnniiicninstasenniiantie passim

City of Burlington v. Dague,

ey Ne I asain tc escisesnscisiienscdicahaqntbinsdnlelicdadeabdnsdimendioks 16

Flight Attendants v. Zipes,

are SIN hid ds kiana ciceasciaiieisinddinhabancbicseinestabicaesidiels 15

Fogerty v. Fantasy Records, Inc.,

I cc eatin deanna passim

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, inc.,

I ITED cictictaisas Aesisckadnssienssiessscdnnnssesernaninenbtminsennsiessindl 20

Hallstrom v. Tillamook County,

I aa ner 11, 14, 20

—

Hensley v. Eckerhart,

461 U.S. 424 (1983) ....secssssscseseeecesssseeensensnsssscsssenensnenssenenenensens 16

Hughes v. Rowe,

AAD U.S. 5 (1980) ....cscecsssscerscerescessseessesenssnenssenenenencnnsncornnnsenenes 15

_Marbled Murrelet v. Babbitt,

111 F.3d 1447 (9th Cir. 1997) ( “Marbled Murrelet

IE sannaacuivasanishisnidntatinenaenet tech aigi teste emanate passim

Marbled Murrelet v. Babbitt,

83 F.3d 1068 (9th Cir. 1996) ( “Marbled Murrelet ]”)..... passim

National Wildlife Federation v. Consumers Power Co.,

729 F. Supp. 62 (W.D. Mich. 1989) ...cccccsesecseeseeceeeseeeesseeenenes 12

Newman v. Piggie Park Enterprises, Inc.,

390 U.S. 400 (1968) .....cscscsesessersesesenennsscsneesrsnenscnsenees 3, 16, 19

Northcross v. Board of Education,

412 U.S. 427 (1973) ...sscssssssseersnesessssenssesesescscsrecsnenenencanscenereeees 16

Pennsylvania v. Delaware Valley Citizens’ Council for

Clean Air,

ATB& U.S. 546 (1986) ...ssssessseresesensseseesesenensncenecnenenanensnsenens 12, 16

Razore v. Tulalip Tribes,

66 F.3d 236 (9th Cir. 1995) .....ececceceeeeseeeeeeseees i a 13

Ruckelshaus v. Sierra Club,

463 U.S. 680 (1983) ....sesssssssersesesessssneesnnsnerenassenenenanenenzens passim

Sierra Club v. Shell Oil Co.,

817 F.2d 1169 (Sth Cir. 1987).....:cscsssseeessrsererssssseseenenanenesnens 13

STATUTES, RULES AND REGULATIONS

14 Cal. Code Regs. § 1037.6 ......:scsssssssessereersrsnesenensasananensncnanensens 5

14 Cal. Code Regs. § 1038(D) ......-:sssssessssesssssrersssnsesensnnansezensnsncnes 5

14 Cal. Code Regs. § 1038(€)......:::s:ssssssssesrsesterenenensnnensnsecnsnnnnens 5

14 Cal. Code Regs. § 896, ef S€q ....-.+:sssssesesesessssssnenenenennenenennnengnens 5

14 Cal. Code Regs. § 919.9, €f SOq. ..-.s-sssseressssssseerenensntensrsstnennnens 5

vil

Pe SAAD LACAN sig 0 bra SRS Nie Hala Nats

16 U.S.C. § 1531, ef Sq. ....sssccssssesessesesessecneenseecesescneneeeneneenensenannens 4

16 U.S.C. § 1536(a)(2) ......ssccsessereesereseseseseeeeseesssssesesenseenenees 5, 6,7

16 U.S.C. § 1538(a)(1)(B)......ccececeeseseeeeneeeeneesensesesstessesnesesnenaennes >

16 U.S.C. § 1540(g) .....ecsccssssssssessseeessesssessnscscesessessssnesesensennenaenss 2

16 U.S.C. § 1540(g)(1)....ccsscesseesesesesesseeeeeseenssesssessesesenenenenenenes 7

16 U.S.C. § 1540(g)(4).....cccsscsscecceseseesctseteeeeseenseseseesenseesnnens passim

17 U.S.C. § 505 ......cccsssccssssssscccssscsececsssscsenescssessssssessscscensenens 15,17

20 U.S.C. § 1617... ccssccsscsssscescsceessessssscesesescssessessssesessnseneenensesens 16

28 U.S.C. § 1254(1) ....ccccccesssssssssseseecssenensssesecenssesessseneensenensenenees 2

33 U.S.C. § 1365(d) ......ccesssssssesesecssccescseeeesssenseessssasssessarensenennens 13

A2 U.S.C. § 1365(d) .....ccccesscccsssscerscsecsscsrcesersessecscsessnnsnseesessnsenes 17

42 U.S.C. § 1988 ......ccecscccccsscsssccsscscsccssseserssssscserscssrensennsensens 15,17

42 U.S.C. § 2000a-3(b) .......cccssesessesersereneeeeetenennentssseeneseneesesnensenes 17

42 U.S.C. § 2000A-S(k) oc. ceceseseseeseesesenseeeessenessensseeesseesenesenenesneees 17

42 U.S.C. § 2000€, ef SOq. ...cssccccsesessesceseeseteeteerenseesstsnteseeseneneeeeeney 3

42 U.S.C. § 4321, ef SOG ...sscsessscsssesessseceeseeennetentansenatsteeseessetaeseesenney 7

42 U.S.C. § 4332(2)(C) ..n.esssssscsseresesseseeeseseseesencsenensesseseeaeesenseeennenes 7

42 U.S.C. § 6972(d) ...cecescesssssssssssssscsssersrnnseesessssssscncssssscsssseneanenss 13

42 U.S.C. § 7604(g)(2)...sccccsseseesseesesesseseteeeeteesetsenensseessesaeenennenenes 17

42 U.S.C. § T609(f) .....ccsccssssssscssesscccseseessessenssssecssssecsnssasenseatensenss 17

42 U.S.C. § 9659(f) ....csecscsssssssssscsessencecesenenssenceensssssssssensensenensenes 17

50 C.F.R. § 222.23(a) (1998) ......cceeseseeeeseseetsesetsessseeeeeseeeeesensneenes 5

50 C.F.R. § 227.4 (1998)......ccceccesseseseseeeesteeteeeenseneseessneeneseeenensenes 5

50 C.F.R. § 402.1(D) (1998) .....ccececcceeeteseeeeseneeeenetseeaseesseensnennennens 5

56 C.F.R. part 402 (1998)......ccccsescsessesesesenseesensnssesesseeeeseeensenennenes 6

Cal. Code Regs. § 919.9(€).......::ccssssssseesenenesseessessnssesstenseneesneennens 5

Vill

Cal. Pub. Res. Code § 4511, ef S€q......:::sscsseesseseeeeeerstseenssereeneeenennes d

Cal. Pub. Res. Code § 4581... cccccssssssesssseeneeneesesnsessseseseeneneeneens 4

Cal. Pub. Res. Code § 4582.6-4582.7......:csccssesesessseseesseesseneenneens 5

Cal. Pub. Res. Code § 4584........ccecesssseseeseeneeteeteneeseessessessenseneeens 5

Pub. L. No. 94-477, 90 Stat. 2073, now codified at 49

U.S.C. § 60121)... :ccsscsssssseseseseseseseesseeensneessseesenessenenenenesenes 18

MISCELLANEOUS

Greve, Michael S., The Private Enforcement of

Environmental Law, 65 Tul. L. Rev. 339 (1990).....sceseseeeeeees 4

Hager, George, Lobbyists: For Industry and Opponents,

A Showdown Is In the Air, 48 Cong. Q. Wkly. Rep.

145 (1990) .....cscsecocscsscsssscsssesssscsesesscsssasseesscscsesacssscassssazecececees 21

http:\\www. wildcaliformia.org..........sssssseseeseseseseeeseseenetenenenenenenees 6

MacFarlane, Ross and Lori Terry, Citizen Suits: Impacts

on Permitting and Agency Enforcement, Nat.

Resources & Env’t 20 (Spring 1997).......:ccccccssssessseseseseeereeees 3

No.

In the Supreme Court of the United States

October Term 1998

PACIFIC LUMBER COMPANY, a Delaware corporation;

SCOTIA PACIFIC COMPANY, LLC, a Delaware corporation;

and SALMON CREEK CORPORATION, a Delaware corporation,

Petitioners,

MARBLED MURRELET (Brachyramphus marmoratus);

NORTHERN SPOTTED OWL (Strix occidentallis caurina); and

ENVIRONMENTAL PROTECTION INFORMATION CENTER,

INC.

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals from which review is sought

is reported at 182 F.3d 1091 (9th Cir. 1999). App. B at 3a-10a. The

district court opinion from which that appeal was taken is unofficially

reported at 1998 U.S. Dist. LEXIS 4266. App. C at 1la-28a. The

opinion of the district court granting summary judgment in favor of

petitioners is unofficially reported at 1997 U.S. Dist. LEXIS 9138.

App. D at 29a-41a. The opinions of the court of appeals reversing the

district court’s issuance of preliminary injunctions are reported at

Marbled Murrelet v. Babbitt, 111 F.3d 1447 (9th Cir. 1997)

(“Marbled Murrelet IT”) (App. E at 42a-46a) and Marbled Murrelet

v. Babbitt, 83 F.3d 1068 (9th Cir. 1996) (“Marbled Murrelet I”)

(App. G at 74a-84a). The district court decisions from which the

foregoing appeals were taken are, respectively, not reported (App. F

at 47a-73a) and unofficially reported at 1996 U.S. Dist. LEXIS 13856

(App. H at 85a-89a).

JURISDICTION

The judgment of the court of appeals was entered on July 7,

1999. Petition for rehearing and rehearing en banc was filed on

July 23, 1999, and denied on August 25, 1999. App. A at la-2a. The

jurisdiction of this Court is invoked under 28 U.S.C. section 1254(1).

STATUTORY PROVISION INVOLVED

This petition involves the fee-shifting portion of the citizen suit

provision of the federal Endangered Species Act, 16 U.S.C. section

1540(g)(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 entirety of the citizen suit provision, 16 U.S.C. section 1540(g),

is reproduced in Appendix I at 90a-9 1a.

STATEMENT OF THE CASE

A. THE ISSUE

This case presents the question of what standard is to be applied

under a neutrally-worded fee-shifting statute to the reasonable

attorneys’ fees request of a prevailing defendant in an environmental

citizen suit where the defendant obtained a favorable ruling from the

court of appeals on an important question that court concluded

furthered the purposes of the governing statute. The statute in

question—the federal Endangered Species Act (“ESA”)}—provides

that “the court, in issuing any final order in any suit brought pursuant

to paragraph (1) ... may award costs of litigation (including

ainsi aceite

reasonable attorney and expert fees) to any party, whenever the court

determines such award is appropriate.” 16 U.S.C. § 1540(g)(4)

(emphasis added). The court below, overruling an earlier Ninth

Circuit opinion to the contrary,’ concluded that the dual standard this

Court held applicable to civil nghts actions brought under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. section 2000¢, et seq., as

articulated in Christiansburg Garment Co. v. EEOC, 434 U.S. 412

(1978) (“Christiansburg”’), is to be employed in awarding attorneys’

fees in environmental cases. App. B at 8a-9a. The Christiansburg rule

provides that prevailing plaintiffs ordinarily recover attorneys’ fees

unless special circumstances render such an award unjust. However,

a prevailing defendant can recover attorneys’ fees only where the

action is found to be “unreasonable, frivolous, meritless or

vexatious.” Jd. Indeed, under Christiansburg (endorsing this Court’s

earlier ruling in Newman v. Piggie Park Enterprises, Inc., 390 U.S.

400 (1968)), a successful civil rights plaintiff is ordinarily awarded

attorneys’ fees—even if the victory is only technical. Christiansburg,

434 US. at 416.

The court of appeals below ignored this Court’s decision in

Fogerty v. Fantasy Records, Inc., 510 U.S. 517 (1994) (“Fogerty”),

which had rejected the Ninth Circuit’s imposition of a dual standard

on a neutrally-worded fee-shifting provision of the Copyright Act. In

holding that an evenhanded approach is called for, Fogerty confined

the Christiansburg dual standard to civil rights cases, in which it was

deemed appropriate because of their unique historical background,

and gave no hint that neutrally-worded fee-shifting statutes are to be

similarly construed in other contexts.

Uncertainty and conflict exists among the circuits and within the

lower courts as to whether—outside of the civil rights arena—the

Christiansburg dual standard or the Fogerty rule of parity governs the

award of attorneys’ fees to a prevailing defendant under a neutrally-

worded fee-shifting statute. Given the plethora of citizen suits’ that

" See Carson-Truckee Water Conservancy District v. Secretary of the Interior,

748 F.2d 523 (9th Cir. 1984), cert. denied, Pyramid Lake Paiute Tribe v. Carson-

Truckee Water Conservancy District, 471 U.S. 1065 (1985) (“Carson-Truckee”).

* The 1990s have witnessed an “explosive growth in the number of citizen suits.”

Ross MacFarlane and Loni Terry, Citizen Suits: Impacts on Permitting and Agency

Enforcement, Nat. Resources & Env’t 20, 20 (Spring 1997). This explosion has

have been filed in recent years under various environmental statutes

that contain similarly worded attorneys’ fees provisions manifesting

no preference for plaintiffs or defendants,’ clarification of the proper

standard to be applied to successful defendants is called for.

B. THE UNDERLYING REGULATORY SCHEME

Petitioners The Pacific Lumber Company, Scotia Pacific

Company, LLC* and Salmon Creek Corporation (collectively

“PALCO”) have, for many years, engaged in commercial timber

harvesting operations on 200,000 acres of private property they own

in Humboldt County, California. Among PALCO’s timberlands are

old-growth redwood forest stands that provide habitat for the marbled

murrelet, listed as “threatened” under the federal ESA, 16 U.S.C.

section 1531, et seg., and the northern spotted owl, listed as

“endangered” under the same Act.*

Commercial timber operations in California are comprehensively

regulated by the Z’berg-Nejedly Forest Practice Act of 1973 (“FPA”),

Cal. Pub. Res. Code § 4511, et seq., and the Forest Practice Rules

promulgated by the California Board of Forestry (‘the Board”) under

that Act. Marbled Murrelet I, App. G at 76a-77a; Marbled Murrelet

II, App. E at 44a. The FPA and its implementing regulations require

that a person seeking to harvest timber must file a timber harvest plan

(“THP”) with the California Department of Forestry (“CDF”). Cal.

Pub. Res. Code § 4581. The THP includes a formal harvesting plan

that specifically details the areas to be harvested, how the area is to be

occurred on top of the already substantial number of citizen suits filed in the 1980s.

For example, between May 1984 and September 1988, more than 800 notices of

intent to sue were filed under the Clean Water Act. Michael S. Greve, The Private

Enforcement of Environmental Law, 65 Tul. L. Rev. 339, 354 (1990).

3 There are at least 16 federal statutes that contain provisions comparable to the

ESA. See Ruckelshaus v. Sierra Club, 463 U.S. 680, 681 n.1 (1983).

‘ Scotia Pacific Company, LLC is successor in interest to Scotia Pacific Holding

Company.

5 Petitioners refer the Court to the statement of background of this case set forth

in the district court’s opinion granting summary judgment (App. D at 29a) and in the

two Ninth Circuit decisions that preceded it—Marbled Murrelet v. Babbitt, 83 F.3d

1068 (9th Cir. 1996) (App. G at 74a) and Marbled Murrelet v. Babbitt, 111 F.3d

1447 (9th Cir. 1997) (App. E at 42a).

harvested, what protective measures are to be undertaken, an analysis

of the impacts (both specific and cumulative), and mitigative

measures to be followed with the proposed harvest. 14 Cal. Code

Regs. § 896, et seq.

Prior to approval of a THP, the FPA provides for site inspections

by appropriate professionals from CDF and other interested state and

federal agencies, public notice and comment. Cal. Pub. Res. Code

§ 4582.6-4582.7. A THP cannot be approved if CDF determines that

numerous criteria protective of the environment have not been

satisfied. 14 Cal. Code Regs. § 1037.6.

A modified exemption procedure exists for persons who seek to

harvest “dead, dying or diseased trees.” See Cal. Pub. Res. Code

§ 4584; 14 Cal. Code Regs. § 1038(b). The exemption process

involves the filing of an “exemption notice” rather than the formal

plan associated with THPs. 14 Cal. Code Regs. § 1038(b). CDF

thereafter reviews the notice and makes a determination as to whether

it complies with the FPA. 14 Cal. Code Regs. § 1038(e).

In instances where a “threatened” or “listed” species under the

ESA may exist within the areas to be harvested under either an

exemption notice or THP, the Board has promulgated special

regulations designed to assure that the proposed harvest will avoid a

“take” of the species (an act that is prohibited by section 9 of the

ESA, 16 U.S.C. § 1538(a)(1)(B)). See 14 Cal. Code Regs. § 919.9, er

seq. The state regulations provide that one method to satisfy this

requirement is for the U.S. Fish and Wildlife Service (“USFWS”) to

concur that the proposed plan will not “take” an endangered species.

Cal. Code Regs. § 919.9(e). Marbled Murrelet I, App. G at 75a-76a;

Marbled Murrelet II. App. E at 43a-44a.°

* The USFWS, as the delegate of the Secretary of the Interior, and the National

Marine Fisheries Service (“NMFS”), as the delegate of the Secretary of Commerce,

are the federal agencies responsible for administration of the ESA. 50 C.F.R.

§ 402.1(b) (1998). USFWS has jurisdiction over terrestrial and inland aquatic

species, while NMFS has jurisdiction over marine species. /d. at §§ 222.23(a) &

227.4 (1998). Section 7(a)(2) of the ESA requires federal agencies to “insure that

any action authorized, funded, or carried out by such agency ... is not likely to

jeopardize the continued existence of any endangered species or threatened species.”

16 U.S.C. § 1536(a)(2). Pursuant to this mandate, when a federal agency action may

affect a threatened or endangered species, the agency must engage in a process

known as “consultation” with either USFWS or NMFS, depending on which wildlife

Because the marbled murrelet and the northern spotted ow! exist

on PALCO’s properties and could be affected by proposed exemption

harvests and harvests pursuant to submitted THPs, PALCO 1S

required to assure CDF that its proposed harvesting activities will not

“take” either of the species. It can mezt this requirement by providing

to CDF written documentation that ‘he USFWS finds its proposed

plans acceptable. Marbled Murrelet I, App. G at 75a, 77a-78a;

Marbled Murrelet II, App. E at 44a-46a.

In 1994 and 1995, PALCO submitted three exemption notices to

harvest dead, dying or diseased timber throughout its property. App.

D at 32a. During this same period o° time, PALCO was processing

eight THPs. App. D at 36a. CDF and the USFWS, upon reviewing

the proposals, required modifications so as to avoid “taking” either

the marbled murrelet or northern spotted owl. Marbled Murrelet I,

App. G at 78a. After modification of the original plans, the USFWS

provided written acceptance with respect to the exemption harvests

and the THPs. See App. D at 32a-33a, 35a-36a.

C. THE LITIGATION BELOW

On September 15, 1995, respondent Environmental Protection

Information Center, Inc. (“EPIC”)}—an environmental group that has

been zealously seeking to shut down PALCO’s harvesting activities

for a number of years through a series of lawsuits’ —filed an action on

agency has jurisdiction over the species in question. 16 U.S.C. § 1536(a)(2); 50

C.F.R. part 402 (1998). Through the consultation process, the responsible wildlife

agency determines whether the proposed action is likely to violate the jeopardy

standard of ESA section 7(a){2).

7 As of January 1998, EPIC reported the following on its Internet site

(http:\\www.wildcalifornia.org):

We have filed 15 lawsuits involving the ancient and residual old-growth

groves of the Headwaters forest and we have moved to intervene in

Pacific Lumber’s private property rights lawsuit against the United

States of America. Many of our cases have been filed with the Sierra

Club, individuals, or watershed groups as co-plaintiffs.

To these should be added EPIC’s ongoing suit against the California Department of

Forestry and Fire Protection and the California Department of Fish and Game

challenging the legality, under state law, of the Habitat Conservation Plan/Sustained

Yield Plan for Pacific Lumber’s lands. Humboldt Co. Sup. Ct. Case No. CV-

990445.

ete

behalf of itself, the marbled murrelet and the northern spotted owl

under the ESA and the National Environmental Policy Act (“NEPA”’),

42 U.S.C. section 4321, et seg., seeking a temporary restraining order

and preliminary injunction enjoining PALCO from conducting

logging activities in Humboldt County pursuant to the THPs and the

exemption harvest notices. The Defendants were Bruce Babbitt,

_ (Secretary, Department of the Interior), Mollie Beattie (Director,

USFWS), Michael Spear (Region 1 Director, USFWS) and the

USFWS, along with PALCO.

EPIC brought this action as a citizen suit under the ESA pursuant

to 16 U.S.C. section 1540(g)(1), asserting that the written

concurrences of the USFWS with respect to the exemption notices

and THPs constituted “agency action” under section 7(a)(2) of the

ESA, 16 U.S.C. section 1536(a)(2), and “major federal action” under

NEPA requiring an environmental impact statement.* 42 U.S.C.

§ 4332(2)(C).

The essence of EPIC’s section 7 claim was that the advice

secured by PALCO from the USFWS as to how to avoid “take” in its

implementation of the exemption harvests and THPs was “agency

action” under section 7(a)(2) of the ESA that required compliance

with the lengthy and complicated consultation process under that

section, including preparation of a biological assessment and

biological opinion before the harvesting could take place. See

Marbled Murrelet I, App. G at 75a-76a; Marbled Murrelet II, App.

E at 43a-44a.

On September 29, 1995, the district court granted a preliminary

injunction with respect to the exemption notices. This ruling was

appealed by PALCO to the Court of Appeals for the Ninth Circuit,

which, on May 7, 1996, reversed and remanded. Marbled Murrelet

I, App. G at 74a. The Ninth Circuit opinion addressed for the first

time the question whether USFWS’s advice to and consultation with

a private party and a state agency with authority to regulate the private

party actions in order to avoid the “take” of a listed species,

constituted “agency action” or “major federal action.” The court

concluded that since there was no discretionary federal involvement

* EPIC also alleged that PALCO was “taking” marbled murrelets in violation of

section 9 of the ESA. This latter claim was subsequently dismissed. App. C at 13a.

or control over the processing of exemption notices, the USFWS did

not engage in “agency action” under section 7 of the ESA or “major

federal action” under NEPA. Marbled Murrelet I, App. G at 79a-84a.

In ruling in favor of PALCO, the court of appeals agreed with

PALCO’s interpretation of section 7 of the ESA and NEPA, and

found that this interpretation furthered the purposes of the ESA:

Protection of endangered species would not be enhanced by

a rule which would require a federal agency to perform

burdensome procedural tasks mandated by section 7 simply

because it had advised or consulted with a private party. Such

a rule would be a distinct disincentive for the agency to give

such advice or consultation. Moreover, private parties who

wanted advice on how to comply with the ESA would be

loath to contact the FWS for fear of triggering burdensome

bureaucratic procedures. As a result, desirable

communication between private entities and federal agencies

on how to comply with the ESA would be stifled and

protection of threatened and endangered species would suffer.

Marbled Murrelet I, App. G at 83a.

Following remand, the district court granted a new motion by

EPIC for a preliminary injunction—this time with respect to the

concurrence by the USFWS with the proposed THPs’ avoidance of

taking the northern spotted owl in compliance with PALCO’s

northern spotted owl plan. App. F at 72a-73a. Again, PALCO

appealed to the Ninth Circuit, which vacated the preliminary

injunction. Marbled Murrelet II, App. E at 42a. The court of appeals

reiterated its conclusion, expressed in the earlier opinion, that

consultation with the USFWS and its concurrence with the proposed

plan did not constitute “agency action” triggering section 7 of the

ESA or “major federal action” under NEPA. /d. at 43a-46a. The court

clarified the important point that timber harvesting on private lands

in California is not a matter within the purview of the federal

government, but subject to exclusive state regulation. Id. at 45a.

Following the decision in Marbled Murrelet IT, PALCO and the

federal defendants filed motions for summary judgment. Those

motions were granted on the basis of the guidance provided by the

two Ninth Circuit opinions holding that the USFWS’s participation

in PALCO’s efforts to comply with the environmental laws and

obtain approval from CDF to harvest timber did not constitute

“agency action” under the ESA or “major federal action” under

NEPA.’ App. D at 40a-41a. Judgment was thereupon entered in favor

of PALCO. App. D at 4la.

D. PALCO’S REQUEST FOR ATTORNEYS’ FEES

Following dismissal of EPIC’s claims and entry of judgment in

favor of PALCO, PALCO sought litigation costs, including attorneys’

fees, under 16 U.S.C. section 1540(g)(4),’° on the ground that it was

the prevailing party which successfully obtained a decision that made

a substantial contribution to the interpretation of the ESA.

PALCO argued that the neutrally-worded fee-shifting provision

of the ESA did not establish a different and more onerous standard for

a prevailing defendant than for a successfu! plaintiff and that the dual

standard this Court found applicable in suits brought by plaintiffs

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

706k, did not apply. Christiansburg, 434 U.S. 412 (1978). Rather,

PALCO submitted, under the Ninth Circuit precedent of Carson-

Truckee Water Conservancy District v. Secretary of the Interior, 748

F.2d 523 (9th Cir. 1984), cert. denied, Pyramid Lake Paiute Tribe v.

Carson-Truckee Water Conservancy District, 471 U.S. 1065 (1985)

(‘““Carson-Truckee”’), whether “any” party’s claim for litigation costs

is “appropriate” depends upon whether the party’s litigation efforts

were successful and “made a substantial contribution” to the

interpretation or application of the ESA. PALCO further argued that

this Court, in Fogerty, 510 U.S. 517 (1994), rejected an earlier effort

by the Ninth Circuit to judge attorneys’ fees claimed by prevailing

defendants under a neutrally-worded fee-shifting provision by the

Civil Rights Act’s “dual standard”:

* With respect to the NEPA claim, the district court concluded that since the

USFWS had not engaged in “agency action” under section 7 of the ESA, it followed

that the USFWS had not engaged in a “major federal action” under NEPA’s more

exclusive standard. App. D at 40a-41a.

1 “The court . .. may award costs of litigation (including reasonable attorney and

expert witness fees) to any party, whenever the court determines such award is

appropriate.” 16 U.S.C. § 1540(g)(4).

Thus, the Court replaces the “dual standard” adopted by the

Ninth Circuit with an “evenhanded” approach under which

district courts will apply the same standard to prevailing

plaintiffs and defendants when deciding whether to award

fees.

Id. at 536 (Thomas, J., concurring).

Lastly, PALCO pointed out that any question as to whether the

ESA is to be given an evenhanded interpretation was resolved by this

Court in Bennett v. Spear, 520 U.S. 154 (1997). There, in construing

another portion of the same provision that allows fee-shifting under

the ESA (16 U.S.C. § 1540(g)(1)), this Court construed “any person”

to mean just that and determined that standing under the ESA is to be

accorded in an evenhanded manner to parties who seek to enforce its

environmental provisions against others, as well as those whose

economic interests are subject to the bite of those very provisions.

Bennett, 520 U.S. at 164-166.

The district court denied PALCO’s request, concluding that “the

Ninth Circuit has articulated that the Christiansburg standard applies

to defendants acting with economic interests” and that standard

requires defendants to establish that plaintiffs’ lawsuit was “frivolous,

unreasonable or without foundation” in order to qualify for an award

of attorneys’ fees. App. C at 19a, 18a. The court also rejected

PALCO’s argument that Bennett v. Spear precluded a distinction

between litigants under the citizen suit provision of the ESA based

upon their stztus or motivation, stating:

There is no justification in Bennett for extending that ruling

(“any party” in 16 U.S.C. § 1540(g)(1)] to [Pacific Lumber]’s

motion for fees. This argument may be attractive on appeal,

however, this court is bound by the Ninth Circuit’s ruling in

Razore."

App. C at 19a n.6.

On appeal, the Ninth Circuit affirmed the district court, rejecting

its own evenhanded “substantial contribution standard” articulated in

'! Razore v. Tulalip Tribes, 66 F.3d 236 (9th Cir. 1995), denied fees in a Clean

Water Act (“CWA”) and Resource Conservation and Recovery Act (“RCRA”) case

to a defendant who prevailed on a technicality.

ve boi alae

Carson-Truckee, holding that the Christiansburg dual standard,

applicable to civil rights claims, would now be the test to be applied

to prevailing defendants in environmental cases where the applicable

statute authorizes the district court to award reasonable attorney and

expert witness fees “to any party, whenever ... appropriate,”

notwithstanding the neutral-wording of those fee-shifting provisions.

App. B at 7a-9a.

REASONS FOR GRANTING THE WRIT

A. THIS COURT’S URGENT INTERVENTION IS NEEDED TO

ELIMINATE CONFLICTS AND CONFUSION PREVAILING

IN THE LOWER COURTS

The starting point for any discussion of the appropnate test

governing the authority of a.federal court io award attorneys’ fees at

the conclusion of litigation is that absent clear legislative direction to

the contrary, the “American Rule” governs and neither party is

entitled to an award of attorneys’ fees. Alyeska Pipeline Service Co.

v. Wilderness Society, 421 U.S. 240, 247, 260-261 (1975). A long

accepted exception applies if the losing party has acted in bad faith,

vexatiously, wantonly or for oppressive reasons. Jd. at 259. As noted

in Alyeska, 421 U.S. at 260 n.33, Congress has, over the years, made

specific and explicit provisions for the shifting of attorneys’ fees

under selected statutes authorizing allowances in a variety of

circumstances and often upon different tests. Jd. at 260-261. In the

environmental area alone, there are at least 16 federal statutes that

contain fee-shifting provisions comparable to the ESA where no

preference for plaintiffs or defendants is exhibited. See Ruckelshaus

v. Sierra Club, 463 U.S. 680, 681 n.1 (1983) (“Ruckelshaus”’). This

expression of parity by Congress is in line with this Court’s view that

the citizen suit provisions in many of the environmental statutes

reveal a legislative intent to strike a balance between encouraging

citizen enforcement and avoiding burdening federal courts with

excessive numbers of citizen suits. Hallstrom v. Tillamook County,

493 U.S. 20, 28-29 (1989) (“Hallstrom”’).

Nothing in the statutory provision under consideration here-——16

U.S.C. section 1540(g)(4), authorizing the award of reasonable

attorneys’ fees to “any party . .. whenever the court determines such

award is appropriate”—even remotely suggests anything other than

an evenhanded, neutral approach is to be invoked. The same is true

for many other environmental statutes containing similarly worded

fee-shifting provisions. On the face of it, the rule of parity adopted by

this Court in Fogerty should apply. However, this Court’s earlier

decision in Christiansburg, has been construed by many lower courts

to authorize the application of the dual standard to neutrally-worded

fee-shifting statutes outside of the civil rights field.'* While this

Court’s subsequent decision in Fogerty wouid seem to have clarified

the situation by limiting the dual standard to civil nghts cases, many

lower courts have persisted in ignoring the plain meaning of the fee-

shifting statutes and have applied the Christiansburg tule."

The decision below illustrates the confusion prevailing in the

lower courts on the subject of awarding prevailing defendants

attorneys’ fees under fee-shifting statutes. Here, the Ninth Circuit

belatedly claims to have discovered that, some thirteen years ago in

Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air,

478 U.S. 546 (1986), this Court “essentially overruled” the appellate

court’s decision in Carson-Truckee, 748 F.2d 523 (9th Cir. 1984),

which held that a prevailing defendant—and indeed any prevailing

party—in an ESA case could recover his attorneys’ fees if he had

“substantially contributed to the goals of the statute”. App. B at 7a-

9a."

In reaching its decision in Carson-Truckee, the Ninth Circuit

relied upon cases from the District of Columbia Circuit endorsing the

same rule, i.e. it is appropriate to award attorneys’ fees to either a

plaintiff or defendant if the party substantially contributed to the goals

of the act in question. See Carson-Truckee, 748 F.2d at 525. This

construction, the Ninth Circuit opined, reflected the apparent

congressional intent and is a result approved by this Court in its

12 See, e.g., National Wildlife Federation v. Consumers Power Co., 729 F. Supp.

62, 63 (W.D. Mich. 1989).

'3 See, e.g., Briggs Christian Morris-Smith v. Moulton Niguel Water District, 44

F. Supp. 2d 1084 (S.D. Cal. 1999); Atlantic States Legal Foundation, Inc. v.

Onodaga Department of Drainage & Sanitation, 899 F. Supp. 84, 87 (N.D. N.Y.

1995).

'* As we point out later, this is a misreading of Delaware Valley.

decision in Ruckelshaus, 463 U.S. 680. In fact, the Ninth Circuit in

Carson-Truckee construed Ruckelshaus as endorsing the evenhanded

approach and confining the dual standard to civil nghts disputes.

Carson-Truckee, 748 F.2d at 526.

In arriving at the result here, the Ninth Circuit below

acknowledged that it has interpreted the attorneys’ fees provisions of

the ESA, CWA and other environmental statutes in two different and

inconsistent ways with respect to the ability of prevailing defendants

to secure reasonable attorneys’ fees. App. B at 7a. In Carson-Truckee,

application of the neutral standard rested upon the determination of

whether the prevailing party substantially contributed to the goals of

the act without regard to whether the prevailing party was a plaintiff

or defendant. In Razore v. Tulalip Tribes, 66 F.3d 236 (9th Cir.

1995), the court, without citing its earlier Carson-Truckee opinion,

held that the fee-shifting provisions of RCRA, 42 U.S.C. section

6972(d), and the CWA, 33 U.S.C. section 1365(d), are to be

interpreted under the Christiansburg dual standard insofar as

prevailing defendants are concerned. Razore, 66 F.3d at 240.

In contrast to the Ninth Circuit, the Fifth Circuit has awarded a

prevailing defendant attorneys’ fees in the successful defense of a suit

brought under an environmental statute without finding the plaintiff's

case to be “frivolous” and with no suggestion that different standards

apply to plaintiffs and defendants. Sierra Club v. Shell Oil Co., 817

F.2d 1169, 1176 (Sth Cir. 1987)."®

Although there is presently no uniform understanding in the

lower courts as to the correct rule, the consensus with respect to the

award of attorneys’ fees in suits filed under the environmental laws

seems to follow the Ninth Circuit’s holding in the present case. That

is: prevailing plaintiffs recover if the result substantially contributes

to the purposes of the act—a standard that is rather loosely applied.

See, supra, nn.12 & 13. Prevailing defendants, on the other hand,

recover their attorneys’ fees only if the suit is shown to be frivolous

or vexatious. The consequence of this very one-sided regime—

1S The court below expressed its opinion that there is no contrary reported

decision in the courts of appeals, distinguishing Sierra Club v. Shell Oil Co., 817

F.2d 1169, 1176 (Sth Cir. 1987), on the ground that it awarded fees to a prevailing

defendant “without analysis.” App. B at 9a.

affording plaintiffs a risk-free incentive to go to court—is that private

environmental litigation (much of which is unsuccessful or only

marginally successful) has proliferated, unduly burdening the courts,

unfairly weighing on defendants, and inhibiting desirable, amicable

solutions. This is not what Congress contemplated.

There is no suggestion in the environmental statutes containing

fee-shifting provisions (such as the ESA) that plaintiffs are to be

given a preferential status assuring them attorneys’ fees with a

minimal showing, while defendants are to be saddled with a virtually

insurmountable burden. On the contrary, the fee-shifting provisions

of virtually all environmental statutes are neutral, awarding fees to

“any party” or “the prevailing party” whenever “appropriate.”

Ruckelshaus, 463 U.S. at 681 n.1. This evenhanded wording

manifests the fact that Congress’ concern was to strike a balance

between encouraging citizen enforcement of environmental

regulations and avoiding burdening the federal courts with excessive

numbers of citizen suits. See Hallstrom, 493 U.S. at 28-30.

This Court’s intervention is required to give necessary guidance

to the lower courts, which (like the Ninth Circuit in this case)

evidently believe themselves free to extend the dual standard that

applies in the civil rights context to the award of attorneys’ fees in

environmental cases, absent any indication in the fee-shifting statute

that this was the congressional intent.

B. THE QUESTION WHETHER THE “DUAL STANDARD”

APPLIES TO THE AWARD OF ATTORNEYS’ FEES UNDER

THE ENVIRONMENTAL PROTECTION LAWS (AND,

SPECIFICALLY, THE ESA) IS OPEN IN THIS COURT

Notwithstanding the decision below, this Court has never

determined whether, in cases filed under the environmental protection

laws (including the ESA), a prevailing defendant’s entitlement to

recover attorneys’ fees should be governed by a standard different

from that applying to a prevailing plaintiff. Indeed, the Court has only

decided three cases involving a defendant’s claim under fee-shifting

statutes. The first, Christiansburg Garment Co. v. EEOC, 434 U.S.

412 (1978), involved a complaint under Title VII of the Civil Rights

Act of 1964. The Court there applied a dual standard, which entitled

a prevailing defendant to recover his fees only if “the plaintiff's action

was frivolous, unreasonable, or without foundation.” Jd. at 421. The

next decision, Hughes v. Rowe, 449 U.S. 5 (1980), merely applied the

tule of Christiansburg to a prevailing defendant’s claim under the

similarly worded general civil rights fee-shifting statute, 42 U.S.C.

section 1988. On the other hand, the third case, Fogerty, 510 U.S.

517, firmly rejected the dual standard in the context of a claim for

attorneys’ fees by a prevailing defendant who had been sued for

governs the award of attorneys’ fees to a prevailing defendant under

the ESA or the other environmental protection laws providing for fee-

shifting.

Before Fogerty, there may have been grounds for believing that

this Court viewed every rule announced to be applicable to ail fee-

shifting statutes, regardless of any differences in wording or

differences in the policies underlying the particular law. That

impression was created by some dicta in the Court’s Opinions in

attorneys’ fees cases to the effect that the decision would govern

claims under other statutes. See Justice Thomas’ Concurring Opinion

in Fogerty, 510 U.S. at 537 (collecting these passages). But Fogerty

put an end to this notion by holding that since the statutory language

of the Copyright Act, 17 U.S.C. section 505, providing that the court

“in its discretion may ... award a reasonable attorney’s fee to the

prevailing party as a part of the costs,” gives no indication that

successful plaintiffs are to be treated differently from successful

defendants, parity of treatment is to be accorded a successful

defendant. Fogerty, 510 U.S. at 522. Fogerty confined the

Christiansburg rule to civil rights cases due to their unique historical

background. Jd. at 525.

Moreover, when the dicta in this Court’s earlier cases (suggesting

that the rule in one fee-shifting context should govern others) are

examined carefully, it emerges that none of them relates to the

question presented here: whether a dual standard as between plaintiff

1 To these decisions, one should perhaps add Flight Attendants v. Zipes, 491

U.S. 754 (1989), which held that a blameless intervenor cannot be assessed the

attorneys’ fees incurred by a prevailing plaintiff under Title VII of the Civil Rights

Act of 1964, unless his claim was shown to be frivolous.

and defendant ought to prevail outside the civil rights arena. Thus,

City of Burlington v. Dague, 505 U.S. 557 (1992), merely decided

that a contingent-fee arrangement does not justify enhancement ofa

fee award beyond the “lodestar.” Similarly, Pennsylvania v. Delaware

Valley Citizens’ Council for Clean Air, 478 U.S. 546 (1986), invoked

by the court below, only determined that attorneys’ fees could be

allowed for work during the administrative phases of litigation and

disallowed a fee enhancement above the lodestar. The holding of

Ruckelshaus, 463 U.S. 680, is equally limited: it decides only that,

even when the fee-shifting statute does not explicitly say so, no one

may recover his attorneys’ fees unless he prevails to some extent.

And, finally, Hensley v. Eckerhart, 461 U.S. 424 (1983), is concerned

solely with the apportionment or discount of the fee when the

claimant has only partially succeeded.”

None of these holdings resolves the question whether the dual

standard prevailing in civil rights cases obtains elsewhere. If it is true

that the dicta in this Court’s Opinions is to be construed as declaring

the rules discussed to be of general application, then they should

govern copyright infringement cases, as well as others in which a fee-

shifting statute is involved. Yet, Fogerty emphatically holds that the

civil rights dual standard is inapplicable in the infringement context.

The Court is entirely free to follow the same course here with respect

to cases arising under the environmental protection statutes.

C. THE COURT SHOULD REJECT THE DUAL STANDARD

FOR THE AWARD OF ATTORNEYS’ FEES IN ALL

EXCEPT CIVIL RIGHTS CASES

All fee-shifting statutes have one thing in common: they permit

a deviation from the so-called “American Rule,” under which (absent

vexatious or bad faith litigation) each side—win or lose—pays its

own attorneys’ fees. And, presumably, all such provisions reflect a

17 We do not include Northcross v. Board of Education, 412 U.S. 427 (1973),

since that decision applies the civil rights standard announced in Newman v. Piggie

Park Enterprises, Inc., 390 U.S. 400 (1968), decided under Title II of the Civil

Rights Act of 1964, to the claim of a successful plaintiff under a similarly worded

school desegregation statute of 1972 (20 U.S.C. § 1617), without suggesting that a

like standard applies beyond the civil nghts context.

view that the public interest is served by facilitating some lawsuits,

and some defenses, which would not otherwise be heard. But, as

Fogerty instructs, this general community of purpose does not mean

that the same standard for the recovery of attorneys’ fees applies in all

cases, much less that plaintiffs always enjoy a more generous standard

than defendants. The question presented here is whether claims for

attorneys’ fees in ESA cases (and, presumably, cases under the other

environmental protection statutes) ought to be governed by the dual

standard rule applicable under the civil rights laws or, rather, by the

rule of parity that obtains in copyright infringement cases.

The court of appeals justified its overruling of Carson-Truckee on

the erroneous conclusion that “the attorneys’ fee provisions of the

ESA and the Civil Rights Act of 1964 ... have a common purpose.”

App. B at 8a. Nothing in the legislative history of the ESA supports

this conclusion. There are sound reasons for treating fee claims under

the civil nghts acts as a unique exception to the general principle of

parity, which encompasses all other contexts in which deviations from

the “American Rule” are authorized. See Christiansburg, 434 U.S. at

415-416 and nn.5 & 6. None of these reasons supports the conclusion

that a dual standard is to be applied to the fee-shifting provisions of

the ESA and similar statutes.

As the Court stressed in Fogerty, 510 U.S. at 522, 533, the

language of the fee-shifting statutes—referring indifferently to “the

prevailing party” or to “any party”—<an logically be construed only

as requiring parity of treatment as between plaintiff and defendant.”

Only the strongest evidence that Congress held a contrary intent

'* In this respect, we appreciate no difference between the various formulations,

the typical “prevailing party” wording of the civil nghts provisions (e.g. §§ 204(b)

& 706(k) of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-3(b), 2000a-5(k), and

42 U.S.C. § 1988) and of the Copyright Act (17 U.S.C. § 505), the “any party...

whenever ... appropriate” wording of some environmental laws (e.g. ESA

§ Li(g)(4), 16 U.S.C. § 1540(g)(4); Clean Air Act § 304(g)(2), 42 U.S.C.

§ 7604(g)(2)), the authorization for the award of attorneys’ fees “whenever ...

appropriate,” without any reference to a “party” (e.g. Clean Air Act § 307(f), 42

U.S.C. § 7609(f)), or the more fulsome wording “any prevailing or substantially

prevailing party ... whenever . . . appropriate” (e.g. Clean Water Act § 505(d), 42

U.S.C. § 1365(d); Comprehensive Environmental Response, Compensation and

Liability Act (“CERCLA”) § 310(f), 42 U.S.C. § 9659(f)). All are equally neutral

as between plaintiff and defendant.

would justify ignoring this apparently “plain meaning.” See Fogerty,

510 U.S. at 533, 537-538 (Thomas, J., concurring); Alyeska Pipeline

Service Co. v. Wilderness Society, 421 U.S. 240, 263-264 ( 1975).

No such evidence exists concerning the fee-shifting provision of the

ESA.

The legislative history of the fee-shifting provision of the ESA

reveals no congressional intent to favor plaintiffs over defendants.”°

Moreover, this Court has recently had occasion to consider whether

the citizen suit provision of the ESA, 16 U.S.C. section 1540(g)(4),

is to be construed differently for standing purposes depending upon

the motivation of the plaintiff (environmental group or party with an

economic interest) in Bennett v. Spear, 520 U.S. 137 (1997), and

concluded that the ESA affords no basis for differentiation. We

submit that likewise it provides no basis for construing the same

neutrally-worded statutory provision as manifesting an intent to

' discriminate between plaintiffs and defendants with respect to fee-

shifting.

Parity is supported by elementary notions of fairness. Even the

polar extremes with respect to the allocation of attorneys’ fees, the

“American Rule” and the “British Rule,” treat plaintiff and defendant

alike. Congress may abandon that principle, but the intention to do so

requires a clear showing and is not lightly to be assumed.

Ruckelshaus, 463 U.S. at 685.

Such indications were found in respect of lawsuits filed under the

civil rights statutes. As Fogerty points out, however, that is a unique

19 This should not be surprising because Congress knows how to provide for a

dual standard when it means to do so. In 1976, Congress amended the National Gas

Pipeline Safety Act of 1968 to authorize citizen suits and provided:

In any action under this section, the court may, in the interest of justice,

award the costs of suit, including reasonable attorney’s fees and reasonable

expert witness fees, to a prevailing plaintiff. Such court may, in the interest

of justice, award such costs to a prevailing defendant whenever such action

is unreasonable, frivolous, or meritless.

§ 17(e) of Pub. L. No. 94-477, 90 Stat. 2073, now codified at 49 U.S.C. § 60121(b).

20 In addition, in Fogerty, this Court noted that Congress, in enacting the fee-

shifting provision of the Copyright Act in 1976, could not have been aware of the

Christiansburg dual standard as that case was not decided until 1978. The same is

true of the fee-shifting provision of the ESA, which was signed into law in 1973 and

has never been amended.

context. There is, in modern times, no parallel to the national

commitment to deal with discrimination. Because discriminatory

laws, institutions and habits (whether on the ground of race, national

origin or gender) have been entrenched for several centuries, the task

was Herculean and Congress called forth all possible means to deal

with the problem, including empowering the victims to bring legal

actions to vindicate their nghts.

In the civil rights context, as opposed to other areas where fee-

shifting has been authorized, the adversaries were not seen as equals.

The plaintiffs, almost by definition individuals ciaiming to be the

victims of discrimination, were “oftentimes . .. impecunious” and

could “ill afford to litigate their claims against defendants with more

resources.” Fogerty, 510 U.S. at 524. Accordingly, “Congress sought

to redress this balance in part, and to provide incentives for the

bringing of meritorious lawsuits, by treating successful plaintiffs more

favorably than successful defendants in terms of the award of

attorneys’ fees.” Jd.

The unique status of civil rights citizen suits is exemplified by the

fact that a successful plaintiff is awarded his fees even if the victory

is only technical. Newman v. Piggie Park Enterprice,, Inc., 390 U.S.

400 (1968); Christiansburg, 434 U.S. at 416. By way of contrast, the

Court in Ruckelshaus, 463 U.S. at 687 n.9, pointed out that trivial

success on the merits is not sufficient to entitle a plaintiff to attorneys’

fees under the fee-shifting provisions of environmental! statutes.

Lawsuits filed under the ESA (and the other environmental

protection statutes) involve no exceptional circumstance comparable

to the civil rights cases. While it is true that in 1972 Congress adopted

a policy of protecting endangered species (as it also enacted laws to

combat air, water and land pollution), this was not remotely on the

same scale as the “war against discrimination” that began in earnest

in the previous decade. And, equally important, in the environmental

field, governmental agencies, federal and state, were assigned the

leading enforcement role. While citizen suits were authorized, private

plaintiffs are not, as in the civil rights field, the primary “chosen

instrument of Congress” to vindicate the law. See Christiansburg, 434

U.S. at 4182! In the environmental context, citizen plaintiffs

“support,” not “supplant” the governmental agencies specifically

charged with enforcement responsibilities. Hallstrom, 493 U.S. at 29;

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.,

484 U.S. 49, 60 (1987). In these circumstances, there is no reason to

create an unequal incentive for citizen plaintiffs.

Nor did Congress, in adopting fee-shifting provisions in

environmental laws, manifest an intent to favor plaintiffs over

defendants. On the contrary, as this Court observed in Hallstrom:

[T]he legislative history indicates an intent to strike a balance

between encouraging citizen enforcement of environmental

regulations and avoiding burdening the federal courts with

excessive numbers of citizen suits.

493 U.S. at 29. In Fogerty, the Court said “the policies served by the

maximizing the number of meritorious suits.” Fogerty, 510 USS. at

526. The same may be said of the ESA. Indeed, the Court recently

recognized this in Bennett v. Spear, observing that in addition to

species conservation, “economic consequences are an explicit concern

of the Act.” Bennett, 520 U.S. at 177.

To say that the “goals and objectives” of the Civil Rights Act and

the ESA are “not completely similar,” as this Court said of the Civil

Rights Act and the Copyright Act in Fogerty, 510 U.S. at 524, is a

gross understatement. Plaintiffs under the ESA are typically not

“impecunious” as in the case of the victims of discrimination. For the

most part, as is the case here, private ESA lawsuits are brought by

environmental organizations,” many of which are well-financed.”

21 We note that Christiansburg also justified the dual standard there announced

on the ground that a prevailing plaintiff was seeking an award of attorneys’ fees

“against a violator of federal law.” 434 U.S. at 418. Significantly, this rationale is

not repeated in Fogerty. Nor could it be, since a copyright infringer is equally “a

violator of federal law,” yet, under the parity rule of Fogerty, the plaintiff enjoys no

advantage on that ground in the allocation of attorneys’ fees.

22 It is worth noting that private property owners and local irrigation districts may

also be plaintiffs under the ESA. Bennett v. Spear, 520 U.S. 154 (1997).

Presumably, if they prevail, they are equally eligible for an award of attorneys’ fees.

3 The following data on environmental organizations’ members, budgets and

staffs as of 1990 are instructive:

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)

They are “highly organized, professional advocacy and litigation

groups” which together constitute no less than an “environmentalist

enforcement cartel.” Michael S. Greve, The Private Enforcement of

Environmental Law, 65 Tul. L. Rev. 339, 342, 370 (1990).

On the other hand, defendants include very small landowners and

businesses who can ill afford to pay their own lawyers, much less

their opponent’s attorneys’ fees. Here, as in the copyright

infringement context, the balance is much more even and no artificial

advantage need be given to the plaintiff.

Furthermore, just as “a successful defense of a copynght

infringement action may further the policies of the Copynght Act

every bit as much as a successful prosecution of an infringement

claim,” Fogerty, 510 U.S. at 527, so may a successful defense of an

ESA citizen suit further the policies of that statute. Indeed, the Ninth

Circuit found that is exactly what happened in this case. The court

observed that if plaintiffs’ interpretation of the ESA were adopted,

“desirable communication between private entitities and federal

agencies on how to comply with the ESA would be stifled and

protection of threatened and endangered species would suffer.”

Marbled Murrelet I, App. G at 83a. This result demonstrates that

when a plaintiff can initiate a suit under the ESA or a similarly

Budget

Organization Founded | Members | (in millions) | Staff

National Wildlife

per vem a 1936 5,600,000 $85.0 700

National Resource Defense

Councii** 1970 125,000 $13.0 125

Sierra Club 1892 553,246 $28.0 185

The Wilderness Society 1935 330,000 $20.0 130

National Audubon Society 1905 516,220 $32.9 337

Defenders of Wildlife 1947 80,000 $ 4.5 30

a 1967 125,000 | $12.9 100

Friends of the Earth 1969 50,000 $2.5 35

Greenpeace 1971 1,400,000 $33.9 1200

* Membership figure includes members and supporters.

** Staff includes 40 lawyers.

George Hager, “Lobbyists: For Industry and Opponents, A Showdown Is In the

Air,” 48 Cong. Q. Wkly. Rep. 145, 146 (1990).

worded environmental statute containing a citizen suit provision (as

opposed to a rule-making challenge that can only be brought in the

court of appeals where a governmental agency is always the

defendant), there is every reason to encourage appeals by

defendants, as well as plaintiffs, to interpret the law.

In sum, environmental lawsuits present no exceptional

circumstances justifying a dual standard with respect to the award of

attorneys’ fees.

As the Court concluded in Fogerty, rejecting the dual standard

does not mean embracing the “British Rule,” under which the loser

automatically is assessed the winner’s attorneys’ fees. Fogerty, 510

US. at 533-534. The district court must exercise its discretion. The

one clear rule is that “{p]revailing plaintiffs and prevailing defendants

are to be treated alike.” Jd. at 534. We suggest a standard that would

allow the successful defendant to recover his attorneys’ fees—absent

special circumstances—if the outcome is in the prevailing defendant’s

favor and furthers the purposes of the act involved.”° In the present

case, there can be no doubt that the defendant met this test.

CONCLUSION

For the reasons stated above, the petition for writ of certiorari

should be granted.

Respectfully submitted,

EDGAR B. WASHBURN

Counsel of Record

WASHBURN, BRISCOE & MCCARTHY

Attorneys for Petitioners

September 30, 1999

4 Ruckelshaus, 463 U.S. 680, was such a case. In that context, there is obviously

no point in considering the attorneys’ fee claim of a successful defendant agency.

Since the case is brought in the court of appeals in the first instance, an appellate

decision considering the various points of law is almost a certainty. The same is not

true where an action is brought in the district court. There, both sides should be

equally encouraged to pursue appeals that further the purpose of the act involved.

25 Of course, an award must go to the prevailing party if his opponent has put

forward a frivolous complaint or defense.

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APPENDIX A

NOT FOR PUBLICATION

MARBLED MURRELET (Brachyramphus marmoratus);

NORTHERN SPOTTED OWL (Strix occidentalis caurina);

ENVIRONMENTAL PROTECTION INFORMATION CENTER,

INC.,

Plaintiffs-Appellees,

BRUCE BABBITT, Secretary, Department of the Interior;

MOLLIE BEATTIE, Director, United States Fish and

Wildlife Service; MICHAEL SPEAR, Region 1 Director,

United States Fish and Wildlife Service; U.S. FISH AND

WILDLIFE SERVICE,

Defendants,

and

PACIFIC LUMBER COMPANY, a Delaware corporation;

SCOTIA PACIFIC HOLDING COMPANY, a Delaware

corporation; SALMON CREEK CORPORATION, a

Delaware corporation,

Defendants-Appellants.

No. 98-15788

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

August 25, 1999, Filed

PRIOR HISTORY: Appeal from the United States District Court for

the Northern District of California. D.C. No. CV-95-03261-LCB. Louis

Charles Bechtle, Chief District Judge, Presiding.

DISPOSITION: Petition for rehearing and rehearing en banc DENIED.

JUDGES: Before: Mary M. Schroeder, Stephen Reinhardt, and Barry

G. Silverman, Circuit Judges.

The panel, as constituted above has voted to deny the petition for

rehearing and the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en

banc and no active judge has requested a vote on whether to rehear the

matter en banc. Fed. R. App. P. 35.

The petition for rehearing and the petition for rehearing en banc are

denied.

APPENDIX B

MARBLED MURRELET (Brachyramphus marmoratus);

NORTHERN SPOTTED OWL (Strix occidentalis caurina);

ENVIRONMENTAL PROTECTION INFORMATION CENTER,

INC.,

Plaintiffs-Appellees,

BRUCE BABBITT, Secretary, Department of the Interior;

MOLLIE BEATTEE, Director, United States Fish and

: Wildlife Service; MICHAEL SPEAR, Region 1 Director,

y United States Fish and Wildlife Service; U.S. FISH AND

WILDLIFE SERVICE,

Defendants,

and

PACIFIC LUMBER COMPANY, a Delaware corporation;

SCOTIA PACIFIC HOLDING COMPANY, a Delaware

corporation; SALMON CREEK CORPORATION, a

Delaware corporation,

Defendants-Appellants.

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No. 98-15788

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

; 182 F.3d 1091; 1999 U.S. App. LEXIS 14999; 48 ERC (BNA)

; 1983; 99 Cal. Daily Op. Service 5408; 99 Daily Journal DAR 6899

April 14, 1999, Argued and Submitted, San Francisco,

July 7, 1999, Filed

PRIOR HISTORY: Appeal from the United States District Court for

: the Norther District of California. D.C. No. CV-95-03261-LCB. Louis

: Charles Bechtle, Chief District Judge, Presiding.

DISPOSITION: AFFIRMED.

COUNSEL: Jared G. Carter, Rawles, Hinkle, Carter, Behnke &

Oglesby, Ukiah, California, for the defendants-appellants.

Thomas N. Lippe, Law Offices of Thomas N. Lippe, San Francisco,

California, for the plaintiffs-appellees.

James M. Heckler, Trial Lawyers for Public Justice, Washington,

D.C., for the amicus.

Robin L. Rivett, Pacific Legal Foundation, Sacramenio, Casifornia,

for the amicus.

JUDGES: Before: Mary M. Schroeder, Stephen Reinhardt, and Barry

G. Silverman, Circuit Judges.

OPINION BY: Mary M. Schroeder

This is an appeal from the denial of attorney's fees to the defendant

in a lawsuit under the Endangered Species Act. A non-profit

environmental group filed the suit and the defendant logging company

prevailed. The district court considered the defendant's claim for fees

under two different standards that this court has used in the past to

determine whether to award fees to a prevailing defendant in

environmental cases. The district court ruled that the defendant in this

case was not entitled to fees under either standard. We affirm the denial

and take this opportunity to clarify the law in this area in light of

intervening Supreme Court authority.

I. BACKGROUND

This case arose out of a dispute over defendant-appellant Pacific

Lumber's plan to log old-growth redwoods in the Headwaters Forest in

Humboldt County, California. The forest, owned by Pacific Lumber, is

home to the marbled murrelet and the northern spotted owl, birds

protected by the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-

43. To conduct the logging in compliance with California law, Pacific

Lumber needed a timber harvest plan approved by the California

Department of Forestry ("CDF"). See Cal. Pub. Res. Code §§ 4581-82.

Pursuant to California forestry regulations, see Cal. Code Regs. tit. 14,

§ 919.5, the CDF approved the plan by soliciting concurrence letters

from the U.S. Fish and Wildlife Service ("FWS") stating that the

proposed logging would be unlikely to harm endangered species.

Pacific Lumber also consulted directly with the FWS to determine what

it would have to do to avoid a "take" of endangered species prohibited

by § 9 of the ESA. See 16 U.S.C. §§ 1532 & 1538.

In September 1995, plaintiff-appellee the Environmental Protection

Information Center ("EPIC") sued Pacific Lumber, the FWS, and

several other defendants, alleging that they were violating §§ 7 and 9

of the ESA. In its § 7 claim, EPIC argued that the FWS' consultation

letters approving Pacific Lumber's timber harvest plan and its advice to

Pacific Lumber constituted "agency actions" that required the FWS to

prepare a biological assessment and a biological opinion detailing the

impact the action could have on endangered and threatened species. See

16 U.S.C. § 1536(a). The § 7 claim also listed Pacific Lumber as a

defendant on the theory that by cooperating with the FWS, Pacific

Lumber had “assumed responsibility for compliance with federal laws

governing the actions" of the FWS. In its claim under § 9 of the ESA,

EPIC argued that Pacific Lumber's logging would constitute a

prohibited "take" of marbled murrelets.

The district court initially entered a preliminary injunction on

EPIC's § 7 claim. This court reversed the injunction in June 1996,

holding plaintiffs had not raised any serious question. See Marbled

Murrelet v. Babbitt, 83 F.3d 1068 (9th Cir. 1996). EPIC amended its

complaint to add a second § 7 claim. The district court again entered a

preliminary injunction, and this court again reversed and vacated the

injunction on similar grounds. See Marbled Murrelet v. Babbitt, 111

F.3d 1447 (9th Cir. 1997). On remand, the district court granted

summary judgment to Pacific Lumber on the § 7 claims. EPIC

voluntarily dismissed its § 9 claim.

Pacific Lumber then moved for approximately $670,000 in

attorney's fees and costs under § 11 of the ESA, which allows the

district court to award fees to "any party" where "appropriate." 16

U.S.C. § 1540(g)(4). The district court denied Pacific Lumber's motion

on the alternative grounds that Pacific Lumber could meet neither the

standard of Carson-Truckee Water Conservancy Dist. v. Secretary of

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

defendants attorney's fees whenever the defendants’ actions

"substantially contributed" to the goals of the ESA, nor the standard of

Razore v. Tulalip Tribes of Washington, 66 F.3d 236 (9th Cir. 1995),

which allows prevailing defendants attorney's fees under the Clean

Water Act ("CWA") and the Resource Conservation and Recovery Act

("RCRA") if the plaintiffs' lawsuit was "frivolous, unreasonable or

without foundation." Pacific Lumber appeals.

II. DISCUSSION

A. THE APPROPRIATE STANDARD FOR AWARDING

DEFENDANT FEES

Section 11(g)(4) of the Endangered Species Act provides that a

district court "may award costs of litigation (including reasonable

attorney and expert witness fees) to any party, whenever the court

determines such award is appropriate." 16 U.S.C. § 1540(g)(4). Many

other environmental statutes likewise permit fees "where appropriate."

nl This circuit has interpreted the ESA, the CWA, and these other

environmental statutes in two different ways.

In Carson-Truckee, a Nevada water district sued the Department of

the Interior under several reclamation statutes to force the sale of water

from a reservoir. The Pyramid Lake Paiute Tribe intervened as a

defendant and asserted, among other things, that the government's

obligations under the ESA to leave water for endangered fish trumped

its obligation under the reclamation laws to sell water for municipal and

industrial use. See Carson-Truckee Water Conservancy Dist. v. Watt,

575 F. Supp. 467, 468 (Dist. Nev. 1983), aff'd, 748 F.2d 523 (9th Cir.

1984). The district court agreed with the Tribe and dismissed the suit.

It refused, however, to grant the Tribe attorney's fees on the ground that

the Tribe had not substantially contributed to the goals of the Act. See

575 F. Supp. at 469.

This court affirmed. We rejected the Tribe's suggestion that the

district court should have applied Christiansburg Garment Co. Vv.

EEOC, 434 USS. 412, 421, 54 L. Ed. 2d 648, 98 S. Ct. 694 (1978),

which allows attorney's fees to a prevailing defendant under the Civil

Rights Act of 1964 .if the plaintiffs action was frivolous. We

' See, e.g., Clean Air Act, 42 U.S.C. § 7607(f); Toxic Substances Control Act, 15

U.S.C. § 2618(d); Surface Mining Control and Reclamation Act, 30 U.S.C. (Supp. IV)

§ 1270(d); and other environmental statutes listed in Ruckelshaus v. Sierra Club, 463

U.S. 680, 682 n.1, 77 L. Ed. 2d 938, 103 S. Ct. 3274 (1983).

distinguished the Civil Rights Act on the ground that it contains an

attorney's fees provision that allows attorney's fees to "prevailing

parties," see 42 U.S.C. § 2000e-5(k), whereas the ESA allows fees

"where appropriate." Carson-Truckee, 748 F.2d at 526 (quoting

Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 19 L. Ed. 2d

1263, 88 S. Ct. 964 (1968)). Instead, citing D.C. Circuit case law, we

held in Carson-Truckee that an award of attorney's fees is appropriate

only if the party has substantially contributed to the goals of the statute.

See Carson-Truckee, 748 F.2d at 525-26 (citing Sierra Club v.

Gorsuch, 217 U.S. App. D.C. 180, 672 F.2d 33 (D.C. Cir. 1982), rev'd

sub nom. Ruckelshaus v. Sierra Club, 463 U.S. 680, 77 L. Ed. 2d 938,

103 S. Ct. 3274 (1983)). In deciding the extent of a party's contribution,

we said that "the dominant consideration is whether litigation by the

party has served the public interest by assisting the interpretation or

implementation" of the ESA. 748 F.2d at 525 (quoting Alabama Power

Co. v. Gorsuch, 217 U.S. App. D.C. 148, 672 F.2d 1, 3 (D.C. Cir.

1982)). We concluded that because the Tribe had merely duplicated the

efforts of the United States and had asserted other defenses inconsistent

with the implementation of the ESA, it had not substantially

contributed to the goals of the ESA.

Eleven years later, in Razore v. Tulalip Tribes of Washington, 66

F.3d 236 (9th Cir. 1995), we adopted a different standard for attorney's

fees under RCRA and the CWA. The owner of a landfill on a

reservation had sued the Tulalip Tribes under RCRA and the CWA for

the Tribes’ counter-productive attempt to stop polluted runoff from the

landfill. The district court dismissed the owner's suit on the merits, but

refused to grant the defendant Tribes attorney's fees. We adopted for

RCRA and the CWA the Christiansburg civil rights standard of

frivolousness that we had rejected for the ESA in Carson-Truckee. See

Razore, 66 F.3d at 240 (quoting Christiansburg, 434 U.S. 412 at 421).

We found the plaintiffs action against the Tribes not to have been

frivolous, and affirmed the denial of attorney's fees.

We will follow Razore, not Carson-Truckee, and now hold that the

Christianburg standard for prevailing defendants applies in this case.

Carson-Truckee's holding that the "substantial contribution" standard

applies to prevailing defendants in ESA suits is no longer good law.

Two years after Carson-Truckee, the Supreme Court indicated that

attorney's fees provisions in environmental statutes with similar

language and purpose as the attorney's fees provision in the Civil Rights

Acts should be interpreted in the same way. See Pennsylvania v.

Delaware Valley Citizens’ Council, 478 U.S. 546, 92 L. Ed. 2d 439,

106 S. Ct. 3088 (1986). In Delaware Valley, the Court addressed

whether a prevailing plaintiff in a Clean Air Act ("CAA") case can

receive attorney's fees for participating in administrative proceedings.

The Court compared § 304(d) of the CAA, 42 U.S.C. § 7604(d), which

authorizes fees in “any action” under the Act, with the civil rights

attorney's fees provision, 42 U.S.C. § 1988, which authorizes fees for

"any action or proceeding" and which had been interpreted to allow

fees for administrative proceedings. The Court pointed out that even

though the two sections are worded slightly differently, their purposes

"are nearly identical." Delaware Valley at 559. Specifically, § 1988

"was enacted to insure that private citizens have a meaningful

opportunity to vindicate their rights protected by the Civil Rights Acts,”

id at 559, and § 304(d) was meant to encourage "citizen participation

in the enforcement of standards and regulations established under (the

CAA]," id. at 560 (quoting S. Rep. No. 91-1 196, p. 36 (1970)). The

Court concluded that "given the common purpose of both § 304(d) and

§ 1988 to promote citizen enforcement of important federal policies, we

find no reason not to interpret both provisions governing attorney's fees

in the same manner."

Delaware Valley has thus essentially overruled the reasoning of our

decision in Carson-Truckee. Like § 304(d) of the CAA, § 1 1(g)(4) of

the ESA is very similar to the civil rights attorney's fees provision. The

ESA attorney's fees provision allows the award of attorney's fees “to

any party, whenever the court determines such award is appropriate.”

Section 1988 states that a court "in its discretion, may allow the

prevailing party . . . a reasonable attorney's fee." The most obvious

difference between the two is that § 1988 specifies that the party must

be prevailing whereas the ESA does not, but the difference is

immaterial, because the Supreme Court has read a prevailing party

requirement into the ESA. See Ruckelshaus v. Sierra Club, 463 U.S.

680, 682 & n.1, 77 L. Ed. 2d 938, 103 S. Ct. 3274 (1983).

The attorney's fees provisions of the ESA and the Civil Rights Act

of 1964 likewise have a common purpose.” The Christiansburg Court

? Although Delaware Valley involved the attorney's fees provision in 42 U.S.C. §

1988 and Christiansburg addressed the attorney's fees provision in Title VII, 42

adopted the frivolity standard for prevailing defendants because the

legislative history of the Civil Rights Act indicated Congress’ desire to

prevent "frivolous" or "unjustified" suits. Christiansburg, 434 U.S. at

420. The legislative history of the ESA suggests a similar desire on the

part of Congress. The House Report on the ESA stated that the

attorney's fees provision of the ESA should be interpreted in the same

fashion as the identical provision in the Marine Protection, Research,

and Sanctuaries Act ("MPRSA"). See H. Rep. No. 412, 93d Cong., Ist

Sess. 19 (1973). The Senate Committee Report on the MPRSA stated

that prevailing defendants could receive fees only if the purpose of the

suit was harassment. See 1972 U.S. Code Cong. & Admin. News 4234,

4249-50. Given the similarity in language and purpose between the

attorney's fees provisions of the Civil Rights Act and the ESA,

Delaware Valley mandates that we apply to the ESA the civil rights

standard for awarding fees to prevailing defendants. We can find no

contrary authority in any other circuits. The only circuit case since

Delaware Valley to award fees to a prevailing defendant in an

environmental case did so without any analysis of what standard should

be applied. See Sierra Club v. Shell Oil, 817 F.2d 1169, 1176 (Sth Cir.

1987).

B. APPLICATION OF THE CHRISTIANSBURG STANDARD

IN THIS CASE

Of the two claims in EPIC's complaint, one, the § 7 claim, is not at

issue under the Christiansburg standard, for Pacific Lumber does not

contend that EPIC's § 7 claim was frivolous. The district court did not

abuse its discretion in determining that the § 9 claim was not frivolous

when filed, even though it was brought with limited evidentiary

support, because most of the possible evidence was located on Pacific

Lumber's private land and because EPIC's decision to sue was based on

an expert's opinion about the potential effects of logging.

Under the Christiansburg standard, a prevailing defendant may

also be entitled to fees if the plaintiff continued to litigate the suit after

it clearly became frivolous. See 434 U.S. at 422. Pacific Lumber

initially contends that the district court failed to apply this second part

U.S.C. § 2000e-5(k), the two provisions are interpreted to be the same. See Hensley

v. Eckerhart, 461 U.S. 424, 433 n.7, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983).

—

of the Christiansburg frivolity test, but the district court was aware of

both aspects of the test. It set forth Pacific Lumber's position to be both

that "EPIC brought the Section 9 claim without supporting evidence"

and that "it continued to litigate the claim without such evidence." The

district court's ruling in favor of EPIC on this issue was not an abuse of

discretion. Although EPIC voluntarily dismissed its § 9 claim, a case

is not automatically meritless merely because the plaintiff eventually

lost its case. See id. at 421. There is evidence in the record to support

the district court's conclusion that EPIC's litigation may have

contributed to Pacific Lumber's decision to abandon helicopter logging.

Pacific Lumber does not point to any evidence developed during the

course of litigation that should have put EPIC on notice that its suit was

frivolous. We therefore affirm the district court's application of the

Christiansburg standard.

AFFIRMED.

10a

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APPENDIX C

MARBLED MURRELET (Brachyramphus marmoratus),

NORTHERN SPOTTED OWL (Strix occidentalis caurina) and

ENVIRONMENTAL PROTECTION INFORMATION CENTER,

INC.

BRUCE BABBITT, MOLLIE BEATTIE, MICHAEL SPEAR, U.S.

FISH & WILDLIFE SERVICE, THE PACIFIC LUMBER

COMPANY, SCOTIA PACIFIC HOLDING COMPANY and

SALMON CREEK CORPORATION

No. C 95-3261 LCB

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

1998 U.S. Dist. LEXIS 4266

March 31, 1998, Filed

DISPOSITION: Defendants Pacific Lumber Company, Scotia Pacific

Holding Company and Salmon Creek Corporation's petition for

attorneys’ fees DENIED.

COUNSEL: For MARBLED MURRELET (Brachyramphus

marmoratus), NORTHERN SPOTTED OWL (Strix occidentalis

caurina), ENVIRONMENTAL PROTECTION INFORMATION

CENTER, Plaintiffs: Sharon E. Duggan, Law Offices of Sharon E.

Duggan, San Francisco, CA.

For MARBLED MURRELET (Brachyramphus marmoratus),

NORTHERN SPOTTED OWL (Strix occidentalis caurina),

ENVIRONMENTAL PROTECTION INFORMATION CENTER,

Plaintiffs: Thomas N. Lippe, Law Offices of Thomas N. Lippe, San

Francisco, CA.

lla

For BRUCE BABBITT, MOLLIE BEATTIE, MICHAEL SPEAR,

defendants: Patrick R. Bupara, AUSA, Michael J. Yamaguchi, USAtty,

U.S. Attorney's Office, San Francisco, CA.

For BRUCE BABBITT, MOLLIE BEATTIE, MICHAEL SPEAR,

defendants: James C. Kilbourne, Christiana P. Perry, Ellen J. Kohler,

Lois R. Schiffer, U.S. Department of Justice, Washington, DC.

For UNITED STATES FISH AND WILDLIFE SERVICE,

defendant: Patrick Ramirez, U.S. Attorney's Office, San Francisco, CA.

For UNITED STATES FISH AND WILDLIFE SERVICE,

defendant: Ellen J. Kohler, U.S. Department of Justice, Washington,

DC.

For PACIFIC LUMBER COMPANY, SCOTIA PACIFIC

HOLDING COMPANY, SALMON CREEK CORP, defendants: Alson

R. Kemp, Andrea Gross, David W. Trotter, Pillsbury Madison & Sutro

LLP, San Francisco, CA.

For PACIFIC LUMBER COMPANY, SCOTIA PACIFIC

HOLDING COMPANY, SALMON CREEK CORP, defendants: Jared

G. Carter, Frank Shaw Bacik, Rawles Hinkle Carter Benke & Oglesby,

Ukiah, CA.

JUDGES: Louis C. Bechtle, J.

OPINION BY: Louis C. Bechtle

Presently before the court is defendants Pacific Lumber Company,

Scotia Pacific Holding Company and Salmon Creek Corporation's

(collectively "PL") motion for attorneys’ fees and plaintiffs Marbled

Murrelet, Northern Spotted Owl and Environmental Protection

Information Center, Inc.'s (collectively "EPIC") opposition thereto. For

the reasons set forth below, the motion will be denied.

I. BACKGROUND

EPIC brought this civil action to enjoin PL's logging activities on

privately owned timberland in Humboldt County, California. A detailed

background of the case is set forth in the court's Order granting PL's

summary judgment motion. See Marbled Murrelet v. Babbitt, 1997

U.S. Dist. LEXIS 9138, No. C95-3261, 1997 WL 361232, *1-5 (N.D.

12a

Cal. June 24, 1997). The key facts relevant to this motion for fees

follow.

EPIC is a non-profit organization engaged in environmental causes

including the protection of endangered species. PL is engaged in the

commercial harvesting of timber in Northern California. EPIC asserted

that the property on which PL was harvesting timber was inhabited by

two species of birds, the Marbled Murrelet and the Northern Spotted

Owl, both of which are subject to the protections of the Endangered

Species Act, 16 U.S.C. § 1531, et seq. ("ESA"). The Marbled Murrelet

is listed as "threatened" and the Northern Spotted Owl is listed as

"endangered" under the ESA.

EPIC brought two claims against the defendants. One claim alleged

that PL's harvesting activities would effect a "take" of the Marbled

Murrelet in violation of Section 9 of the ESA, 16 U.S.C. § 1538. On

January 13, 1997, the court granted Plaintiffs’ motion to dismiss their

Section 9 claim with prejudice.

The other claim was brought pursuant to Section 7 of the ESA, 16

U.S.C. § 1536, and Section 102(2)(C) of the National Environmental

Policy Act ("NEPA"), 42 U.S.C. § 4332(2)(C)." In that claim, EPIC

alleged that the United States Fish and Wildlife Service ("FWS") had,

in two instances, engaged in "agency action” under Section 7 of the

ESA and engaged in "major federal action" under NEPA in evaluating

and approving PL's timber harvesting plans. Agency action occurs

when the agency engages in an action in which it has discretionary

involvement or control. 50 C.F.R. § 402.03. Federal regulations define

"action" as including "(a) actions intended to conserve listed species or

their habitat; (b) the promulgation of regulations; (c) the granting of

licenses, contracts, leases, easements, rights-of-way, permits, or grants-

in-aid; or (d) actions directly or indirectly causing modifications to the

land, water, or air." 50 C.F.R. § 402.02. Section 7 of the ESA requires

that when federal agencies, including the FWS, take "agency action"

they must:

insure that any action authorized, funded, or carried out by such

agency (hereinafter in this section referred to as an "agency

Plaintiffs filed their ESA claims under the citizen-suit provision of that statute. 16

U.S.C. § 1540(g)1)(A). Because NEPA does not contain a private right of action, the

court interpreted Plaintiffs’ NEPA claim as a claim under the Administrative Procedure

Act ("APA") because it sought review of a final agency decision. 5 U.S.C. § 704.

13a

action") is not likely to jeopardize the continued existence of

any endangered 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....

16 U.S.C. § 1536(a)(2). This process is known as “internal

consultation" and is accomplished by formally or informally

"consulting" before engaging in an action that may affect a protected

species. See 50 C.F.R. § 402.14(a). If the action may adversely affect

an endangered or threatened species or its critical habitat, the agency

must initiate formal consultation and the FWS must prepare a

biological opinion. 50 C.F.R. § 402.14(h)(3).

EPIC claimed that the FWS had engaged in agency action in

reviewing two separate harvesting plans. The first instance was for PL's

plan to harvest dead, dying or diseased trees on PL's property. Under

California statute, those persons planning to conduct harvest activities

on healthy trees must file a Timber Harvest Plan ("THP") with the

California Department of Forestry and Fire Protection ("CDF"). Cal.

Pub. Res. Code § 4581. However, persons planning to conduct the

harvest of dead, dying or diseased trees may file a less detailed

"exemption notice” with the CDF. Cal. Pub. Res. Code § 4584; 14 Cal.

Code Reg. § 1038. Although the statutes do not require the CDF to

coordinate its efforts with the FWS in the review of THPs or exemption

notices, the CDF consulted with the FWS in evaluating whether the

exemption harvesting would result in a take of endangered species. The

FWS also corresponded with PL as to whether harvesting activities

would constitute a take of an endangered species for the planned

exemption harvesting and the conditions to avoid such a take. On

September 1, 1995, PL notified the FWS and the state agencies

involved that it would comply with the FWS's conditions.

On September 15, 1995, the first day of the planned harvest, EPIC

filed their Complaint and a Motion for a Temporary Restraining Order

to enjoin the exemption harvests. EPIC claimed the FWS had engaged

in agency action under 16 U.S.C. § 1536(a)(2), and had failed to

perform an internal consultation as to the exemption harvests. The court

granted that motion. On September 29, 1995, the court granted EPIC's

14a

SA VNR tl he RN aS Nal

motion for a Preliminary Injunction.’ PL appealed, arguing that the

consultation between itself, the CDF and the FWS did not rise to the

level of “agency action" and so an internal consultation was

unnecessary. On May 7, 1996, the United States Court of Appeals for

the Ninth Circuit vacated the injunction holding that the

communication with the FWS "does not constitute discretionary

involvement or control over the Lumber Companies' proposed tree

harvest operations." Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1075

(9th Cir. 1996) ("Marbled Murrelet I").

EPIC also claimed that the FWS had engaged in agency action in

reviewing another harvest planned by PL. In addition to the exemption

harvest, PL also planned to conduct harvests of healthy trees on its

property. As stated above, PL was required to file THPs regarding those

harvests with the CDF. Because the land on which PL wished to

conduct harvest activities was in the range of the Northern Spotted

Owl, the PL was required to include special information in its THPs

regarding the impact of such activities on the Northern Spotted Owl. 14

Cal. Code Reg. § 919.9. The statute provided seven alternative methods

of providing this information. Jd. The method chosen by PL was under

§ 919.9(e), which required the PL to obtain "written documentation [by

a Professional Forester] . . . that the described or proposed management

prescription is acceptable to the USFWS." /d. PL prepared a Spotted

Owl Management Plan that outlined the method whereby PL would

perform the harvest without effecting a take of the owl under the ESA.

On November 20, 1992, the FWS sent PL a letter of "Concurrence with

Spotted Owl Management Plan," which states that the FWS has

reviewed the Owl Management Plan and "concurs that activities

conducted on [PL] property in compliance with this Plan likely will not

result in a take of Northern Spotted Owls, provided that such activities

also comply with conditions specified in this response."> The FWS's

letter of concurrence satisfied the requirements of § 919.9(e). Relying

on FWS's concurrence as satisfying the requirements of 14 Cal. Code

? Those proceedings were presided over by the Honorable Maxine M. Chesney.

3 PIL subsequently revised the Management Plan. Upon receiving the second plan,

the FWS sent a second letter concurring with the modified plan, stating that "the

[FWS] concurs that activities conducted on [PL] property in accordance with this plan

are not likely to result in take of northern spotted owls."

15a

Reg. § 919.9, PL submitted eight THPs regarding harvest operations

within the Northern Spotted Owl's habitation range.

On March 7, 1996, EPIC filed an expedited motion for a temporary

restraining order and a preliminary injunction, seeking to enjoin the

timber harvests under the THPs. EPIC argued that the FWS. had

engaged in agency action under 16 U.S.C. § 1536(a)(2) by providing

the letter of concurrence to PL and that the FWS had failed to perform

an internal consultation or biological opinion. On March 15, 1996, the

court granted the temporary restraining order. On April 3, 1996, the

court entered the preliminary injunction with regard to any timber

harvest conducted pursuant to a THP that was obtained on reliance of

the FWS's letter of concurrence. PL appealed that ruling. PL

subsequently modified six of the eight THPs so that they would comply

with 14 Cal. Code Reg. § 919.9 under alternatives other than § 919.9(e)

and the court lifted the injunction as to those THPs. On April 18, 1997,

the Ninth Circuit vacated the preliminary injunction as to the two

remaining THPs. Marbled Murrelet v. Babbitt, 111 F.3d 1447 (9th Cir.

1997) ("Marbled Murrelet II"). In that ruling, the Ninth Circuit found

that the FWS's letters of concurrence did not constitute agency action

under 16 U.S.C. § 1536(a)(2) because the FWS lacked the discretion

to influence private action. Jd. at 1449-50.

On June 18, 1997, the court entered summary judgment in favor of

PL on the Section 7 claims. Marbled Murrelet v. Babbitt, 1997 U.S.

Dist. LEXIS 9138, No. C95-3261, 1997 WL 361232, *7-8 (N.D. Cal.

June 24, 1997). The court found that under the Ninth Circuit's rulings

in Marbled Murrelet I and Marbled Murrelet II, EPIC could not sustain

its cause of action under Section 7 as to either the exemption harvests

or the THP harvests. Jd. at *6. The court noted that "in both rulings, the

(Ninth Circuit] held that the [FWS] did not engage in ‘agency action’

under the ESA because there was no ‘discretionary Federal involvement

or control’ over PL's logging activities." Jd. The court also noted that

EPIC would be unable to sustain their action under the more stringent

NEPA definition of major federal action. Jd. Subsequent to the entry of

summary judgment in its favor, PL filed this motion for attorneys’ fees.

Il. DISCUSSION

PL filed a petition requesting that the court grant attorneys’ fees and

costs. PL claims it is entitled to statutory attorneys’ fees under the ESA

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fee shifting provision, 16 U.S.C. 1540(g)(4). PL also claims it is

entitled to attorneys’ fees under the traditional "bad faith" standard and

the "frivolous, unreasonable, or without foundation" standard of

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 54 L. Ed.

2d 648, 98 S. Ct. 694 (1978). The court will first address which

standard to apply to the request for attorneys' fees. Then, the court will

address the claim for fees under both the ESA fee shifting provision

and the traditional and Christiansburg standards. Finally, the court will

address the issue of costs.

A. APPLICABLE STANDARD FOR ATTORNEYS' FEES

Under the traditional "American Rule," a prevailing party is not

ordinarily entitled to receive attorneys’ fees. See Ruckelshaus v. Sierra

Club, 463 U.S. 680, 683-684, 77 L. Ed. 2d 938, 103 S. Ct. 3274 (1983)

(citing Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240,

44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975)). One exception to the

American Rule is the court's inherent power to assess attorneys’ fees

when a party has "acted in bad faith, vexatiously, wantonly, or for

oppressive reasons." Alyeska, 421 U.S. at 258-259 (internal quotations

omitted); see also Chambers v. NASCO, Inc., 501 U.S. 32, 45, 115 L.

Ed. 2d 27, 111 S. Ct. 2123 (1991) (quoting Alyeska). In addition to this

punitive award, many of the environmental statutes, including the ESA,

have fee shifting provisions which enable a litigant who has achieved

at least some success on the merits to receive attorneys’ fees.

Ruckleshaus v. Sierra Club, 463 U.S. at 682 n.1, 684.* Under the ESA:

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.

* Although the Ruckleshaus court addressed the Clean Air Act ("CAA"), the Court

noted that the fee shifting provision of the CAA is similar to the provisions located in

several other environmental statutes, including the ESA. See id. at 682 n.1. When

interpreting the fee provision under the ESA, courts have looked to cases regarding

these other statutes, including the Clean Air Act, 42 U.S.C. § 7607(f) and the Clean

Water Act, 33 U.S.C. § 1365(d). Jd. ("the interpretation of ‘appropriate’ in § 307(f) [of

the Clean Air Act] controls construction of the term in [other environmental]

statutes”).

17a

16 U.S.C. § 1540(g)(4). The parties dispute whether the ESA's fee

shifting provision would apply to PL in this case.

PL asserts that it is a "party" under § 1540(g)(4) and so its petition

for fees should be evaluated under the "appropriate" standard of that

provision. PL argues the language of § 1540(g)(4) does not differentiate

between plaintiffs and defendants and, therefore, it applies to PL's

petition for fees. EPIC argues that the fee shifting provisions of ESA do

not apply to defendants who are in PL's position and that the

Christiansburg standard for prevailing defendants should apply.

The court finds that the ESA's fee shifting provisions do not apply

to defendants who must rely on a record such as that confronting PL

here. In Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 54 L. Ed.

2d 648, 98 S. Ct. 694 (1978), the Supreme Court decided what standard

should be applied to a defendant's fee petition under Title VII.” The

Court concluded that "a district court may in its discretion award

attorney's fees to a prevailing defendant in a Title VII case upon a

finding that the plaintiff's action was frivolous, unreasonable, or

without foundation, even though not brought in subjective bad faith."

Id. at 421. The Ninth Circuit has applied the Christiansburg standard

to a prevailing defendant under the Clean Water Act ("CWA") and the

Resource Conservation and Recovery Act ("RCRA"). Razore v. Tulalip

Tribes of Washington, 66 F.3d 236, 240 (9th Cir. 1995) (stating "we

agree with the District Court that Christiansburg Garment Co. is the

proper standard for RCRA and CWA suits").°

5 Title VII has a fee shifting provision which permits a "prevailing party” to obtain

reasonable attorneys’ fees. 42 U.S.C. § 2000e(5)(k). Although the language differs

from the ESA's "any party” language in 16 U.S.C. § 1540(g)(4), the Supreme Court

noted that both Title VII and several environmental statutes fall into a category which

provides a district court with flexibility and discretion to provide attorneys’ fees, thus

"entrusting the effectuation of the statutory policy to the discretion of the district

courts.” Christiansburg, 434 U.S. at 416 & n.7.

® Contrary to PL's assertion, the Supreme Court's holding in Bennett v. Spear, 520

U.S. 154, 137 L. Ed. 2d 281, 117 S. Ct. 1154 (1997), does not contradict the holding

in Razore. In Bennett, the Court addressed whether an entity asserting economic rather

than environmental interests has standing to bring a citizen suit to enforce the ESA.

117 S. Ct. at 1160-63. The court ruled that such a party does have standing as "any

person” under the citizen suit provision of the ESA, 16 U.S.C. § 1540(g)(1). Bennett,

117 S. Ct. at 1163. The court never addressed whether an entity asserting economic

interests could receive fees under the “appropriate” standard of § 1540(g)(4). In spite

of that fact, PL frames the Court's following language as drawing a relationship

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biabiciapoStoecscationi

In Razore, the defendant succeeded in a motion to dismiss, but

because the plaintiff had presented a novel question, the court found

that the suit was not frivolous or unreasonable and denied attorneys'

fees for the defendant. Jd. The Ninth Circuit came to a similar

conclusion in Western States Petroleum Ass'n. v. EPA, 87 F.3d 280,

286 (9th Cir. 1996).’ In that case, the court denied attorneys’ fees to the

plaintiff, "a financially able, nongovernmental party having no more

than its own economic interests at stake." Jd. The court explicitly

rejected the Fifth Circuit's approach in Florida Power & Light Co. v.

Costle, 683 F.2d 941, 943 (Sth Cir. 1982) and concluded that:

the legislative history indicates that Congress neither intended

to subsidize all litigation under the Clean Air Act nor

contemplated that § 307(f) [the fee shifting provision of that

act] would benefit financially abie parties who, out of their own

substantial economic interests, would have litigated anyway.

For this reason, we hold that [plaintiffs are] ineligible for a fee

award under § 307(f).

87 F.3d at 286. Thus, under Razore and Western States, the Ninth

Circuit has articulated that the Christiansburg standard applies to

defendants acting with economic interests."

between the scope of standing in § 1540(g)(1) and the scope of the fee shifting

provision under § 1540(g)(4):

Although petitioners contend that their claims lie both under the ESA and the

APA, we look first at the ESA because it may permit petitioners to recover

their litigation costs, see 16 U.S.C. § 1540(g)(4), and because the APA by its

terms independently authorizes review only when "there is no other adequate

remedy in a court," 5 U.S.C. § 704.

Bennett, 117 S. Ct. at 1160-61. Clearly this language addresses under which statute

the Court will analyze the standing issue. There is no justification in Bennett for

extending that ruling to PL's motion for fees. This argument may be attractive on

appeal, however this court is bound by the Ninth Circuit's ruling in Razore.

7 Again, Bennett does not alter the holding in Western States, 87 F.3d at 286, which

addressed the fee standard for plaintiffs pursuing economic interests. That case never

addressed the standing issue resolved in Bennett.

* PL argues that Razore (and by implication, Western States) is incorrect in light of

the Supreme Court's decision in Fogerty v. Fantasy, Inc., 510 U.S. 517, 127 L. Ed. 2d

455, 114 S. Ct. 1023 (1994). In Fogerty, the court held that the Christiansburg

standard for defendants was inapplicable under the Copyright Act, 17 U.S.C. § 505

and that plaintiffs and defendants were equally entitled to attorneys fees under the fee

shifting provision of that statute. Fogerty, 510 U.S. at 533-34. Aside from the fact that

19a

Oftentimes, in the civil rights context, impecunious "private

attorney general" plaintiffs can ill afford to litigate their claims

against defendants with more resources. Congress sought to

redress this balance in part, and to provide incentives for the

bringing of meritorious lawsuits, by treating successful

plaintiffs more favorably than successful defendants in terms

of the award of attorney's fees.

Id. That rationale equally applies to the environmental statutes. The

Fogerty court also noted that the fee shifting provisions in more

analogous patent and trademark statutes support a “party-neutral

approach." Jd. at 525 n.12. The court does not find the holding in

Fogerty as having any impact on the meaning this court should attribute

to the later Ninth Circuit cases, other than reaffirming the

Christiansburg standard.

PL seeks to distinguish Razore in its reply memorandum. (Defs.'

Mem. in Reply at 4-10.) PL first argues that while Christiansburg has

been extended to the CWA and RCRA, it has never been applied to the

ESA in a published opinion. Jd. at 5. This argument contradicts PL's

citation in its original memorandum of law to Ruckelshaus v. Sierra

Club, 463 U.S. 680, 77 L. Ed. 2d 938, 103 S. Ct. 3274 (1983), which

addrzsses the issue of the Court's interpretation of the term

"appropriate" under the Clean Air Act (CAA) as controlling under the

CWA and the ESA. (Defs.' Mem. at 10.); Ruckleshaus, 463 U.S. at 682

n.1. PL also seeks to distinguish Razore in that the defendant there did

not substantially contribute to the goals of the act. (Defs.' Mem. in

Reply at 4-10.) PL then points to several cases in which courts

contemplate granting defendants attorneys’ fees under the fee shifting

provisions which PL claims contradicts the holding in Razore. These

cases do not support PL's argument.

First, PL cites Sierra Club v. Shell Oil Co., 817 F.2d 1169, 1176

(5th Cir. 1987). In that case, the Fifth Circuit refused to disturb the

district court's granting of litigation costs, including attorneys’ fees, to

defendant Shell Oil Company as "appropriate" under the CWA, 33

U.S.C. § 1365(d). Jd. However, the circuit court merely stated that

Razore and Western States were decided after Fogerty, the Fogerty court specifically

distinguished the fee provision in the Copyright Act from the fee provisions of the

civil rights statutes. Fogerty, 510 U.S. at 524. In doing so, the Court reaffirmed its

rational for the Christiansburg standard under the civil rights statutes:

20a

plaintiff Sierra Club had suggested "no basis for finding an abuse of

discretion, and we perceive none." Jd. This case does not present the

court with a thoroughly reasoned example in which a defendant,

presumably acting with economic motives, obtained fees under the fee

shifting standard. Due to the lack of discussion on the issue, this case

cannot stand as the turning point for the establishment of a rule of law

regarding the recovery of fees by a defendant. Furthermore, the

decision precedes the Ninth Circuit's binding precedent in Razore.

PL also cites Carson-Truckee Water Conservancy Dist. v.

Secretary of the Interior, 748 F.2d 523, 526 (9th Cir. 1984). In that

case, a Native American tribe, acting as an intervening defendant, failed

to receive attorneys’ fees under the ESA. The Ninth Circuit upheld the

District Court's application of the "appropriate" standard to the

defendant's request and the District Court's finding that fees were not

appropriate in the case. Jd. Based on that language, PL argues that the

Ninth Circuit implicitly held that all defendants are eligible to receive

fees under the "appropriate" standard. The court disagrees.

The plaintiffs in Carson-Truckee were a power company and the

State of Nevada. Jd. at 524. They sued officials of the Department of

the Interior for economic reasons, to force the sale of impounded water

for municipal and industrial use. Jd. The tribe intervened as a defendant

in order to block the sale sought by the plaintiffs, asserting that several

endangered and threatened species of fish inhabited the water and its

sale would violate the ESA. /d. Thus, the role of the intervening

defendant in Carson-Truckee was analogous to EPIC in this case, rather

than PL. Neither case cited establishes a rule of law in favor of PL.

More importantly, the court can not and will not read those cases as

overriding the more recent and binding ruling by the Ninth Circuit in

Razore.

The Supreme Court has recognized that Congress’ intent in creating

the fee shifting provisions under certain statutes was to establish a

"private atturney general" enforcement mechanism. See Alyeska

Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 262, 44 L. Ed. 2d

141, 95 S. Ct. 1612 (1975) ("it is true that under some, if not most, of

the statutes providing for the allowance of reasonable fees, Congress

has opted to rely heavily on private enforcement to implement public

policy and to allow counsel fees so as to encourage private litigation").

The fee shifting provisions of the environmental statutes encourage

private citizens to bring suit under those statutes to preserve natural

2la

public resources, despite the lack of pecuniary benefit to those entities.

While it is possible for a party aligned as a defendant to act in the

interest of preserving public resources, as the intervening defendant in

Carson-Truckee did, the Ninth Circuit decisions recognize a distinction

between defendants acting on behalf of the public interest and those

acting for their own economic benefit.

PL defended this litigation with the purpose of engaging in the

harvest of timber on its property. PL did not defend this litigation for

the primary purpose, or even a subsidiary purpose, of preserving a

threatened or endangered species. PL argues that the Ninth Circuit's

rulings produce the end result that the FWS is able to advise and

consult with private parties and other governmental agencies regarding

potential takes of endangered species without being required to engage

in internal consultation. Regardless of the perceived benefits of these

residual effects of the litigation, it does not follow that the PL was

acting in the role of a private attorney general, reaching to fulfill the

goals of the ESA, which the fee shifting provision was designed to

encourage. The court finds that the fee shifting provisions of the ESA

do not apply to PL in this case and that the petition should be evaluated

under the Christiansburg standards. However, because PL contends

that the Ninth Circuit has not explicitly ruled on the issue under the

facts presented by this case, the court will evaluate the petition for fees

under both the ESA's fee provision and the traditional and

Christiansburg standards.

B. ESA'S "SUBSTANTIALLY CONTRIBUTED"

STANDARD

As noted above, the ESA has altered the American Rule by

permitting a court to "award costs of litigation (including reasonable

attorney and expert witness fees) to any party, whenever the court

determines such award is appropriate." 16 U.S.C. § 1540(g)(4). The

Ninth Circuit has held that when a court determines whether an award

of fees is "appropriate" under an environmental statute's fee shifting

provision, it looks to whether the party has “substantially contributed”

to the goals of that statute. See Carson-Truckee Water Conservancy

* EPIC brought this claim on behalf of several endangered species, requesting

injunctive relief that would have provided it with no economic benefit other than the

potential for attorneys’ fees under § 1540(g)(4).

22a

Ris

Dist. v. Secretary of the Interior, 748 F.2d 523, 525-26 (9th Cir. 1984)

(setting forth standard as whether party has "substantially contributed"

to the goals of the relevant statute). Whether a party has substantially

contributed to the goals of a statute can be measured by "whether

litigation by that party has served the public interest by assisting the

interpretation and implementation" of that statute. Carson-Truckee, 748

F.2d at 525 (citations omitted). The stated goals of the ESA are to

"provide a means whereby the ecosystems upon which endangered

species and threatened species depend may be conserved, to provide a

program for the conservation of such endangered species and

threatened species, and to take such steps as may be appropriate to

achieve the purposes of the treaties and conventions set forth in

subsection (a) of this section." 16 U.S.C. § 1531(b). The question

before the court is whether PL's litigation of this matter has

substantially contributed to the preservation of an endangered species.

PL contends that it is entitled to attorneys' fees under 16 U.S.C. §

1540(g\(4) because it is a successful party who has substantially

contributed to the goals of the ESA. PL asserts that it substantially

contributed to the goals of the ESA because the Ninth Circuit rulings

have facilitated communication and cooperation between the FWS,

private parties and other governmental agencies and encouraged cost

effective implementation of the ESA." EPIC contends that PL has not

substantially contributed to the goals of the ESA because the rulings

merely maintained the status quo."

In Marbled Murrelet I, the Ninth Circuit addressed whether the

FWS's role in the exemption notice procedure constituted agency action

under Section 7 of the ESA. Marbled Murrelet v. Babbitt, 83 F.3d

"* PL also argues that granting fees would discourage "meritless" litigation which

it claims is a goal of the act. Discouraging meritless litigation is not a stated goal of

the ESA but is rather the purpose of the traditional "bad faith" and Christiansburg

standards for applying attorneys’ fees. Regardless, PL's argument presupposes that

EPIC’s litigation was meritless, an issue which the court will address under the more

appropnate Christiansburg analysis below.

"' EPIC also argues that an application of attomneys' fees in this case would have a

chilling effect on public interest environmental litigation. EPIC also argues that the

court has no jurisdiction to grant attorneys’ fees, that EPIC actually could be

considered the prevailing party on the Section 9 claims and that the amount of

attorneys’ fees are unreasonable. The court will not address those arguments as the

resolution of the motion for fees under § 1540(g)(4) and Christiansburg will dispose

of those issues as well.

23a

1068, 1075 (9th Cir. 1996). The Ninth Circuit held that it did not

because the FWS did not exert "discretionary involvement or control

over the Lumber Companies’ proposed tree harvest operations." Id. In

Marbled Murrelet II, the court addressed whether the FWS's letter of

concurrence regarding PL's THPs constituted agency action. Marbled

Murrelet v. Babbitt, 111 F.3d 1447, 1449-50 (9th Cir. 1997). The

Ninth Circuit again held that the FWS had not engaged in agency

action because it did not have the discretion to influence PL's activities.

Id.

PL argues that the Ninth Circuit's rulings in its favor substantially

furthered the goal of species preservation by facilitating communication

between federal and state agencies and private parties in that the FWS

may give advisory opinions without engaging in agency action and

performing a biological survey. In support, PL cites to language in

Marbled Murrelet I stating that if such advisory opinions were

considered agency action, private parties would be less likely to request

advice and input from the FWS in the future. (Defs.' Mem. at 12-13.)

The Ninth Circuit did make it clear that "protection of endangered

species would not be enhanced by a rule which would require a federal

agency to perform the burdensome procedural tasks mandated by

section 7 simply because it advised or consulted with a private party. ,

Marbled Murrelet I, 83 F.3d at 1074. However, the result PL sought,

furthered and obtained was the validity of its permits so that it could

proceed in its planned harvests. The court cannot conclude that PL's

pursuit of conducting a timber harvest serves the public interest in

implementing the ESA's goals of preserving endangered and threatened

species. Because PL sought advice and consultation from the federal

agency before the litigation and will, presumably, continue to do so

after this litigation, the court cannot find that PL acted in such a way as

to substantially contribute to the goals of species preservation and an

award of fees for its part in the litigation would be inappropriate. The

court will not grant PL attorneys' fees under the ESA's fee shifting

provision.

C. TRADITIONAL AND CHRISTIANSBURG STANDARDS

Finally, the court will address whether PL is entitled to attorneys’

fees under the traditional or Christiansburg standards. As noted above,

a court has the inherent power to assess attorney's fees when a party has

24a

Sp ES aT tea RO ae

"acted in bad faith, vexatiously, wantonly, or for oppressive reasons."

Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 258-259,

44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975) (internal quotations omitted).

Additionally, under Christiansburg, "a district court may in its

discretion award attorney's fees to a prevailing defendant in a Title VII

[civil rights] case upon a finding that the plaintiff's action was

frivolous, unreasonable, or without foundation, even though not

brought in subjective bad faith." Christiansburg Garment Co. v. EEOC,

434 U.S. 412, 421-22, 54 L. Ed. 2d 648, 98 S. Ct. 694 (1978).

Although the Christiansburg standard developed under civil rights

statutes, the court will apply the Christiansburg standard to EPIC's

claims under the ESA. See Razore v. Tulalip Tribes of Washington, 66

F.3d 236, 240 (9th Cir. 1995). Evaluating EPIC's ESA Section 9 claims

under the Christiansburg standard, the court finds that EPIC did not

engage the court or the parties in frivolous, unreasonable or

foundationless litigation.”

PL argues that EPIC brought the Section 9 claim without

supporting evidence and that it continued to litigate the claim without

such evidence. PL cites strong wording used by the court in ruling on

EPIC's motion to amend its Section 9 claims. PL misses the key

distinction between a claim which a court cannot permit to continue

and a claim that is frivolous, unreasonable or without foundation under

the Christiansburg standard. In Christiansburg, the Supreme Court

made several observations regarding the scrutiny of a plaintiff's case

which are relevant here:

It is important that a district court resist the understandable

temptation to engage in post hoc reasoning by concluding that,

because a plaintiff did not ultimately prevail, his action must

have been unreasonable or without foundation. This kind of

hindsight logic could discourage all but the most airtight

claims, for seldom can a prospective plaintiff be sure of

2 Although PL seeks attorneys’ fees for the entire litigation, PL does not claim that

EPIC's Section 7 claims were frivolous, unreasonable or without foundation. As such,

the court will only analyze the Section 9 claims under the Christiansburg standard.

However, the court notes that the Section 7 claims would not be held frivolous,

unreasonable or without foundation. EPIC's Section 7 claims were based on a complex

area of evolving law and EPIC raised issues that made it clear it had good grounds to

advance their arguments. As PL itself recognized in their brief, the litigation raised "an

issue of first impression." (Defs.' Mem. at 12.)

25a

ultimate success. No matter how honest one's belief that he has

been the victim of discrimination, no matter how meritorious

one's claim may appear at the outset, the course of litigation is

rarely predictable. Decisive facts may not emerge until

discovery or trial. The law may change or clarify in the midst

of litigation. Even when the law or the facts appear

questionable or unfavorable at the outset, a party may have an

entirely reasonable ground for bringing suit.

Christiansburg, 434 U.S. at 421-22. Evaluating EPIC's Section 9

claims in that light, it cannot be said that the claims were frivolous,

unreasonable or without foundation.

EPIC's case was not frivolous for a number of reasons. First, EPIC

points out that its decision to litigate the Section 9 claims was based on

expert opinions that the planned activities would cause harm to

endangered or threatened species. Second, EPIC argues that the threat

of litigating PL's plan to harvest timber with the use of helicopters,

which EPIC contended would disturb the forest canopy with gale force

winds, acted as a catalyst in PL's subsequent change of plans to exclude

the use of helicopters. Though PL's rationale in changing the method

of timber harvest was not fully explored through a hearing, one likely

explanation for the change is EPIC's litigation of the matter. Third,

EPIC points out that the litigation and threat of a temporary restraining

order altered the course of PL's planned activities in removing downed

trees. which EPIC contended would harm Marbled Murrelets. Fourth

and most importantly, the court notes the difficulty in gathering

evidence for the Section 9 claim prior to filing suit and formal

discovery. The proposed timber harvests and alleged takes of the

Murrelets occurred on privately owned land. To fully develop

evidentiary support, EPIC needed access to the land that would have

been largely unnecessary on public land. Evidence of the logging

activities’ nature and data on the nes ing habits of the Marbled

Murrelets and the Northern Spotted Owls were difficult to gather

without first bringing suit to force PL to open the property to EPIC.

Difficulties on both PL's side as a landowner being asked to allow

strangers to roam its land and EPIC's side in getting the freedom of

access it needed were predictable. With the knowledge that EPIC had

at the outset, additional evidence obtainable through access by way of

litigation was not an unreasonable expectation to rely upon in bringing

suit.

In retrospect, the changes which occurred and the reasons therefore

in PL's harvest plans are difficult to surmise, as are EPIC's motives and

evidentiary support for the litigation. While EPIC claims to have altered

the course of PL's activities for the betterment of endangered or

threatened species, PL speculates that EPIC's motives were improper

and its evidentiary basis lacking. The court finds that this is the exact

type of situation that the Supreme Court anticipated in setting the

Christiansburg standard for finding frivolous, unreasonable or

foundationless litigation. The court will refrain from engaging in the

post hoc reasoning and hindsight logic that the Supreme Court warned

against. The court will not award attorneys' fees under the

Christiansburg standard. The court also finds no evidence supporting

a finding of bad faith or improper motive under the traditional standard.

D. COSTS

The court denies the request for costs to the extent they are

requested under 16 U.S.C. § 1540(g)(4). The court notes that the

prevailing parties may be entitled to other costs, such as taxable costs.

However, the court is unable to deduce from the filings what costs have

been assessed by the Clerk of Court and whether either party objects to

the Clerk's assessment. As such, the court will deny the Defendants'

motion for costs. However, Defendants may bring the appropriate

motions to request any costs they are entitled to under other relevant

federal and local rules.

E. SUMMARY

The court finds that the fee shifting provisions of the ESA do not

apply to PL and that the motion should be evaluated under the

Christiansburg and the traditional “bad faith" standard. Even if the

ESA's fee provision was applicable, the court would not grant PL fees

because PL did not substantially contribute to the goals of the ESA.

The court declines to grant PL fees under the Christiansburg standard

or the "bad faith" standard because EPIC's litigation was not frivolous,

unreasonable or without foundation. The court will not grant costs

under the ESA, but the defendants may bring the appropriate motions

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imi A a a

to request any costs they are entitled to under other relevant federal and

local rules.

Ill. CONCLUSION

For the foregoing reasons, the motion will be denied. An

appropriate Order follows.

ORDER

AND NOW, TO WIT, this 30th day of March, 1998, upon

consideration of defendants Pacific Lumber Company, Scotia Pacific

Holding Company and Salmon Creek Corporation's petition for

attorneys’ fees and plaintiffs Marbled Murrelet, Northern Spotted Owl

and Environmental Protection Information Center, Inc.'s opposition

thereto, IT IS ORDERED that said motion is DENIED.

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APPENDIX D

MARBLED MURRELET (Brachyramphus marmoratus),

NORTHERN SPOTTED OWL (Strix occidentalis caurina)

and ENVIRONMENTAL PROTECTION INFORMATION

CENTER, INC.

BRUCE BABBITT, MOLLIE BEATTIE, MICHAEL

SPEAR, U.S. FISH & WILDLIFE SERVICE, THE PACIFIC

LUMBER COMPANY, SCOTIA PACIFIC HOLDING

COMPANY and SALMON CREEK CORPORATION

No. C 95-3261 LCB

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

1997 U.S. Dist. LEXIS 9138

June 24, 1997, Filed

DISPOSITION: Defendants' motions for summary judgment

GRANTED.

COUNSEL: For MARBLED MURRELET (Brachyramphus

marmoratus), NORTHERN SPOTTED OWL (Strix occidentalis

caurina), ENVIRONMENTAL PROTECTION INFORMATION

CENTER, Plaintiffs: Sharon E. Duggan; Law Offices of Sharon E.

Duggan, San Francisco, CA. Thomas N. Lippe, Law Offices of Thomas

N. Lippe, San Francisco, CA.

For BRUCE BABBITT, Sec Dept/Interior, MOLLIE BEATTIE, Dir.

of U.S. Fish, MICHAEL SPEAR, U.S. Fish & Wildlife, defendants:

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Patrick R. Bupara, AUSA, Michael J. Yamaguchi, USAtty, U.S.

Attorney's Office, San Francisco, CA. James C. Kilbourne, Christiana

P. Perry, Ellen J. Kohler, US Dept of Justice, Environment & Natural

Resources Div, Washington, DC. Lois R. Schiffer, U.S. Department of

Justice, Environment & Natural Resources Division, Wildlife & Marine

Resources Section, Washington, DC.

For UNITED STATES FISH AND WILDLIFE SERVICE,

defendant: Patrick Ramirez, U.S. Attorney's Office, San Francisco, CA.

Ellen J. Kohler, (See above).

For PACIFIC LUMBER COMPANY, a Delaware Corporation,

SCOTIA PACIFIC HOLDING COMPANY, a Delaware Corporation,

SALMON CREEK CORP, a Delaware Corporation, defendants: Alson

R. Kemp, Andrea Gross, David W. Trotter, Pillsbury Madison & Sutro

LLP, San Francisco, CA. Jared G. Carter, Frank Shaw Bacik, Rawles

Hinkle Carter Benke & Oglesby, Ukiah, CA.

JUDGES: Louis C. Bechtle, J.

OPINION BY: Louis C. Bechtle

Presently before the court are two motions for summary judgment.

One was filed by Defendants Bruce Babbitt, Mollie Beattie, Michael

Spear, and the United States Fish and Wildlife Service (the "Federal

Defendants"), and the other was filed by Defendants The Pacific

Lumber Company, Scotia Pacific Holding Company, and Salmon

Creek Corporation ("PL"). Plaintiffs have filed opposing briefs. For the

reasons set forth below, the court will grant the motions.

I. BACKGROUND

Plaintiffs brought this civil action to block PL from engaging in

commercial timber harvesting operations on their 200,000 acres of

private property in Humboldt County, California. The property contains

old-growth redwood forest stands that provide a habitat for Plaintiffs

Marbled Murrelet and Northern Spotted Owl. The Marbled Murrelet is

a secretive seagoing bird that the United States Fish and Wildlife

Service (the "Service") has listed as "threatened" under the Endangered

Species Act ("ESA"), 16 U.S.C. § 1531 et seq. The Northern Spotted

Ow is listed as "endangered" under the ESA.

Plaintiffs seek to block PL from logging pursuant to several

approvals issued by a state agency. They originally sought relief on two

grounds. First, they claimed that the Service had sufficient involvement

in the approval of the logging to require it to consult internally and

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prepare a report assessing the logging's effect on the environment,

including the effect on protected species. These claims were brought

under Section 7 of the ESA, 16 U.S.C. § 1536, and Section 102(2)(C)

of the National Environmental Policy Act ("NEPA"), 42 U.S.C. §

4332(2)(C).' Second, Plaintiffs claimed that PL's harvesting of timber

in the relevant areas would cause a "take"’ of Marbled Murrelets in

violation of Section 9 of the ESA, 16 U.S.C. § 1538. Plaintiffs’ Section

9 claim no longer is before the court.’

Defendants’ summary judgment motions invoive only the

analogous claims under NEPA and Section 7 of the ESA. These claims

relate to two separate kinds of timber harvesting approvals by the

California Department of Forestry and Fire Protection ("CDF"). The

court will refer to these distinct approval types as the "Exemption

Harvests" and the "Timber Harvest Plans," or "THPs." Because the

court has addressed each type of approval separately, it will separately

describe the factual and procedural history and regulatory framework

for each category.

A. THE EXEMPTION HARVESTS

Commercial timber operations in California are comprehensively

regulated by the Z’berg-Nejedly Forest Practice Act of 1973 (the

"FPA"), Cal. Pub. Res. Code § 4511 et seq., and the Forest Practice

Rules promulgated by the California Board of Forestry (the "Board").

Persons who want to harvest timber usually must submit a THP

prepared by a registered professional forester ("RPF") to CDF. Cal.

Pub. Res. Code § 4581. Persons who want to harvest "dead, dying or

diseased trees" are exempt from the THP requirement and must follow

a different procedure. See Cal. Pub. Res. Code § 4584; 14 Cal. Code

Reg. § 1038(b). They need only submit an "exemption notice” of the

! Plaintiffs filed their ESA claims under the citizen-suit provision of that statute. 16

U.S.C. § 1540(g(2)(A)(1). Because NEPA does not contain a private right of action,

the court has interpreted Plaintiffs’ NEPA claim as a claim under the Administrative

Procedure Act because it seeks review of a final agency decision. 5 U.S.C. § 704.

2 The word "take" means "to harass, harm, pursue, hunt, shoot, wound, kill, trap,

capture, or collect, or attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).

3 On January 13, 1997, the court granted Plaintiffs’ motion to voluntarily dismiss

the Section 9 claim with prejudice.

3la

proposed timber operation, not a formal plan. 14 Cal. Code Reg.

§ 1038.

After CDF receives an exemption notice, it has ten working days

to determine only whether the notice is "complete and accurate.” 14

Cal. Code Reg. § 1038(e). If it is, the agency sends a notice of

acceptance to the submitter, and the proposed harvesting of "dead,

dying or diseased trees" may begin. Id. If it is not complete and

accurate, CDF returns the notice to the submitter, and no logging may

occur. Id. If CDF does not act within ten days of receipt of the

exemption notice, the submitter may commence the logging. Jd. Under

the relevant state statutes and regulations, no federal agency is called

upon to play a role in accepting an exemption notice or returning one

as incomplete or inaccurate.

The following are the undisputed relevant facts concerning the

Exemption Harvests. In late 1994, PL submitted, and CDF accepted,

two exemption notices to harvest dead, dying, and diseased timber on

nearly all of PL's property. On March 1, 1995, PL submitted a similar

notice for a separate parcel that included the Headwaters Forest, which

is the largest remaining old-growth redwood forest that is privately

owned. The notice was accompanied by a letter noting that "a

substantial portion of the timberland contains timber and habitat that

are not now often found on privately owned timberland, namely

previously unentered old-growth redwood forests."

On March 6, 1995, CDF returned the notice and asked PL to

provide the location and habitat of any rare, endangered, or threatened

species. Two days later, PL resubmitted the notice with five pages of

maps revealing the areas that were important to such species. On March

15, 1995, CDF accepted PL's resubmitted notice and stated that PL

could harvest timber that could alter the habitat of protected species

only after a consultation with and an on-site inspection by the

California Department of Fish and Game ("DFG") and the Service. On

March 17, 1995, CDF notified PL that it had imposed, and PL had

agreed to, several conditions, including "an on-site inspection . . .

whereby the agencies must approve the cutting of any standing trees."

On March 24, 1995, PL objected to several of the conditions

imposed by CDF. Four days later, the issues were discussed by a PL

resources manager and Service and DFG officials. On April 12, 1995,

the Service and DFG sent a joint letter to PL describing several

conditions that must be complied with to avoid a "take" of Marbled

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Murrtelets and Northern Spotted Owls under the ESA and analogous

state requirements. On May 3, 1995, PL notified DFG and the Service

that the conditions were too restrictive and that it was considering filing

an action for inverse condemnation against California and the United

States.

On July 18, 1995, the Service and CDF clarified the conditions of

the April 12 letter. On September 1, 1995, PL told CDF, DFG, and the

Service that they would comply with all conditions set forth in the

previous correspondence. They also stated that they intended to begin

harvesting dead, dying, and diseased timber in the Headwaters Forest

soon after September 15, 1995, the last day of the Marbled Murrelet's

breeding season.

On that date, Plaintiffs filed a Complaint and a Motion for a

Temporary Restraining Order to enjoin PL from commencing the

Exemption Harvests. On the same day, the Honorable Maxine M.

Chesney of this court granted the motion. On September 29, 1995,

Judge Chesney granted Plaintiffs' Motion for a Preliminary Injunction,

a ruling that PL appealed to the United States Court of Appeals for the

Ninth Circuit. On May 7, 1996, that court vacated the injunction,

holding that there were no serious questions whether the Service

engaged in "agency action" under Section 7 of the ESA or a "major

Federal action" under NEPA. Marbled Murrelet v. Babbitt, 83 F.3d

1068, 1075 (9th Cir. 1996) ("Marbled Murrelet I").

On July 1, 1996, the Federal Defendants filed a motion to dismiss

or, in the alternative, for summary judgment on the Exemption Harvest

and THP issues. On the same day, PL filed summary judgment motion

covering both claims. Plaintiff Environmental Protection Information

Center, Inc. ("EPIC") filed responsive briefs on July 12, 1996. On

July 30, 1996, the court heard oral argument on the motions.

On August 26, 1996, EPIC filed a Renewed Motion for

Preliminary Injunction, asking the court to again enjoin PL from

commencing the Exemption Harvests. Defendants filed briefs in

opposition to the motion. On September 13, 1996, while its preliminary

injunction motion was pending, EPIC moved for a temporary

restraining order, incorporating the documents it filed in its preliminary

injunction motion. On September 17, 1996, the court denied EPIC's

motion, rejecting the arguments it offered as part of its Renewed

Motion for a Preliminary Injunction. On October 2, 1996, the court

33a

heard oral argument on the Renewed Motion for a Preliminary

Injunction.

B. THE TIMBER HARVEST PLANS

As stated above, persons who want to harvest timber in California

must submit a THP, unless an exemption applies. Cal. Pub. Res. Code

§ 4581. The California Board of Forestry (the “Board") has

promulgated a special rule for THPs that are in the range of the

Northern Spotted Owl. See 14 Cal. Code Reg. § 919.9. The pertinent

part of this section states:

Every proposed timber harvesting plan . . . shall follow one of

the procedures required in subsections (a)-(g) below for the

area within the THP boundary as shown on the THP map and

also for adjacent areas as specified within this section. The

submitter may choose any alternative (a)-(g) that meets the on-

the-ground circumstances. The required information shall be

used by the Director to evaluate whether or not the proposed

activity would result in the "take" of an individual northern

spotted owl.

Id. Section § 919.9(e) states:

If the plan submitter proposes to proceed pursuant to the

outcome of a discussion of the proposed THP between the plan

submitter and the U.S. Fish and Wildlife Service, the plan

submitter shall submit written documentation in the form of a

letter prepared by the RPF that the described or proposed

management prescription is acceptable to the USFWS.

14 Cal. Code Reg. § 919.9(e).

A plan submitter proceeding under this subsection need not obtain

the Service's approval for each THP; rather, it must submit to CDF a

letter stating that the "proposed management prescription is acceptable"

to the Service. The submitter's "proposed management prescription,"

which in this case is a property-wide strategy for logging without

"taking" the owl, is kept on file with CDF and is incorporated by

reference in each THP. If the submitter's management plan changes, a

revised letter from the Service is required.

34a

eee Se ee Tere sh ee).

After an application is submitted, CDF must determine within ten

days whether a THP is “accurate, complete and in proper order" and

whether a preharvest inspection of the proposed logging area is

necessary. 14 Cal. Code Reg. § 1037. CDF has fifteen days from the

initial inspection (or, if no inspection was deemed necessary, the date

of filing) to review the THP and take public comments to determine

whether it complies with the applicable statutes and Forest Practice

Rules. 14 Cal. Code Reg. § 1037.4. After the review and comment

period, CDF has ten working days to determine whether the THP

conforms to the applicable law Jd. If it does not, CDF must return the

plan to the submitter, along with any changes or reasonable conditions

that would bring the THP into conformance with the rules. 14 Cal.

Code Reg. § 1037.6. An appeal by the plan submitter must be filed

within ten days of receipt of the returned plan. Cal. Pub. Res. Code §

4582.7(c). If the Director does not act on the THP within twenty-five

days, timber operations may commence. Cal. Pub. Res. Code §

4582.7(d). If the Director determines that the THP conforms to the

applicable rules, "the person submitting the plan shall be notified, and

timber operations thereunder may commence." 14 Cal. Code Reg. §

1037.7.

Because the Northern Spotted Ow! exists throughout PL's property,

it must comply with one of the seven su sections of Section 919.9. For

reasons concerning cost and practicality, PL has chosen to proceed

exclusively under subsection (e). Under that provision, PL needed

"written documentation in the form of a letter prepared by the RPF that

the described or proposed management prescription is acceptable to the

USFWS."

In November 1992, PL prepared a Spotted Owl Management Plan

(the "Owl Management Plan"), which allows PL to consistently plan its

timber operations in light of various factors, such as the types of timber

needed, the availability of equipment and crews, and the numerous

seasonal wildlife restrictions that permit harvesting to occur only in

very narrow time frames. On November 20, 1992, the Service sent to

PL a letter of "Concurrence with Spotted Owl Management Plan,"

which states that the Service has reviewed the Owl Management Plan

and "concurs that activities conducied on [PL] property in compliance

with this Plan likely will not result in take of northern spotted owls,

provided that such activities also comply with conditions specified in

this response."

35a

CDF considers this letter to be "written documentation in the form

of a letter prepared by the RPF that the described or proposed

management prescription is acceptable to the USFWS" within the

meaning of 14 Cal. Code Reg. § 919.9(e). Thus, the letter remains on

file with CDF and is incorporated by reference in all of PL's THP

submissions to CDF. PL can not obtain approval of a THP under §

919.9(e) without the Service's concurrence letter.

In January 1996, PL revised its Owl Management Plan and, on

February 2, 1996, the Service sent PL a second concurrence letter,

stating, as the 1992 letter had, that "the Service concurs that activities

conducted on [PL] property in accordance with this plan are not likely

to result in take of northern spotted owls."

With a concurrence letter on file with CDF, PL in 1995 submitted

the eight THPs that are at issue in this litigation. The THPs cover about

1373 acres of its land. On March 7, 1996, Plaintiffs filed an expedited

motion for a temporary restraining order and a preliminary injunction.

Plaintiffs alleged that the Service violated NEPA and Section 7 of the

ESA by providing PL with the concurrence letters without first

complying with the statutes’ procedural requirements, namely,

consulting internally and preparing a biological opinion or

environmental impact statement. On March 15, 1996, after a telephone

conference with counsel, the court issued a Temporary Restraining

Order enjoining PL from harvesting timber under the eight THPs.

On April 3, 1996, after a hearing, the court entered a preliminary

injunction preventing PL from conducting or allowing any timber

harvesting activities of any kind within the boundaries of the eight

THPs, “to the extent that they were obtained pursuant to 14 Cal. Code

Reg. § 919.9(e).” Pacific Lumber appealed this ruling.

While the appeal was pending before the Ninth Circuit, PL

resubmitted or amended some of the THPs so that CDF could consider

them under a subsection of 14 Cal. Code Reg. § 919.9 other than

subsection (e). Between April 7 and November 26, 1996, the court

ruled that the injunction no longer applied to six of the eight THPs

because they had been approved under subsection (a). On April 18,

1997, the Ninth Circuit vacated the preliminary injunction, Marbled

Murrelet v. Babbitt, 111 F.3d 1447 (9th Cir. 1997) ("Marbled Murrelet

II"), enabling PL to commence the two THPs that had not been released

from the injunction.

36a

ee Feet Pens ew am -

fl. STANDARD FOR SUMMARY JUDGMENT

Summary judgment shall be granted "if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a matter of

law." Fed. R. Civ. P. 56(c). Whether a genuine issue of material fact is

presented will be determined by asking if "a reasonable jury could

return a verdict for the non-moving party." Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

On a motion for summary judgment, the non-moving party has the

burden to produce evidence to establish prima facie each element of its

claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d

265, 106 S. Ct. 2548 (1986). Such evidence and all justifiable

inferences that can be drawn from it are to be taken as true. Anderson,

477 U.S. at 255. However, if the non-moving party fails to establish an

essential element of its claim, the moving party is entitled to a judgment

dismissing that claim as a matter of law. Celotex, 477 U.S. at 322-23.

Ill. DISCUSSION

A. THE ENDANGERED SPECIES ACT

The pertinent part of Section 7 of the ESA provides:

Each Federal agency shall, in consultation with and with the

assistance of the Secretary, insure that any action authorized,

funded, 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 endangered 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....

16 U.S.C. § 1536(a)(2). This requirement applies to the Service, even

though it is the agency to be consulted with respect to the Marbled

Murrtelet. 50 C.F.R. § 402.01(b). This process, known as "internal

consultation,” is accomplished by formally or informally "consulting"

before engaging in an action that may affect a protected species. See 50

C.F.R. § 402.14(a). If the action may adversely affect an endangered or

37a

threatened species or its critical habitat, the agency must initiate formal

consultation and the Service must prepare a biological opinion. 50

C.F.R. § 402.14(h)(3).

An internal consultation need not occur every time the Service

takes action. The consultation is necessary only before it engages in an

action in which it has discretionary involvement or control. 50 C.F.R.

§ 402.03. Federal regulations define "action" as including "(a) actions

intended to conserve listed species or their habitat; (b) the promulgation

of regulations; (c) the granting of licenses, contracts, leases, easements,

rights-of-way, permits, or grants-in-aid; or (d) actions directly or

indirectly causing modifications to the land, water, or air." 50 C.F.R. §

402.02.

The Ninth Circuit's rulings on the two interlocutory appeals provide

guidance on what "agency action" means when the Service participates

in a private company's effort to comply with environmental laws to

obtain approval from a state agency to harvest timber. In both rulings,

the court held that the Service did not engage in "agency action" under

the ESA because there was no "discretionary Federal involvement or

control" over PL's logging activities.

In Marbled Murrelet I, the Ninth Circuit found that the Service,

with respect to the Exemption Harvests, "merely provided advice on

how [PL] could avoid a ‘take’ under section 9 of the ESA." 83 F.3d at

1074. The court held that, “as a matter of law, such advisory activity

does not constitute discretionary involvement or control over [PL's]

proposed tree harvest operations." Id. at 1075. Thus, as long as the

Service advises a person who submits an exemption notice on how to

avoid a take of protected species so as to comply with Section 9, the

Service does not engage in "agency action."

In Marbled Murrelet II, the Ninth Circuit found that state law vests

CDF with sole authority to make a final determination as to whether a

proposed THP will result in a take of a protected species. 111 F.3d at

1449-50. Based on this finding, the court held that "CDF, not [the

Service], has the discretion to influence the private action at issue." 111

F.3d at 1450. Accordingly, when the Service provides PL with a

concurrence letter, which is essential to CDF approval of a THP under

14 Cal. Code Reg. § 919.9(e), it does not engage in "agency action.”

38a

B. THE EXEMPTION HARVESTS

Having summarized the relevant facts and the Ninth Circuit's

rulings regarding the Exemption Harvests and the THPs, the court must

now determine whether Plaintiffs have submitted evidence that would

enable a reasonable jury to find in their favor on the Section 7 claim.

The court will view the evidence in the light most favorable to

Plaintiffs.

First, Defendants are entitled to summary judgment on this claim

based on the Ninth Circuit's holding in Marbled Murrelet II that there

was no discretionary federal involvement or control in the approval of

the THPs under state law. The same regulatory scheme vests CDF—

and not the Service—with the exclusive final authority to accept or

reject an exemption notice. In this context, there is no principled basis

to distinguish between CDF's acceptance of an exemption notice and

its approval of a THP because the Service plays no role in either

determination. The Service may be providing information or its

opinions about the likelihood of a take to either CDF or the plan

submitter, but the federal agency does not have the authority to approve

a plan or accept an exemption notice. For this reason, the court believes

that the Ninth Circuit's holding in Marbled Murrelet II is dispositive of

Plaintiffs' claim here.

Second, Defendants are entitled to summary judgment for the

reasons contained in the court's Memorandum and Order of

September 17, 1996, which denied EPIC's motion for a temporary

restraining order. In its motion, EPIC presented several theories* to

support the notion that the Service had engaged in “agency action."

Those theories were that (1) the Service authorized the Exemption

Harvests by accepting CDF's delegation of authority to determine

"take" of federally listed species; (2) DFG was the Service's agent in

reviewing PL's exemption notices and THPs; (3) the Service carried out

"an action to conserve listed species or their habitat" under 50 C.F.R.

§ 402.02; (4) the Service has interpreted Section 7 to require formal

consultation when it enters into agreements with private landowners

that are similar to its agreement with PL's Owl Management Plan; (5)

4 These theories were set forth in EPIC’s supplemental brief in opposition to

Defendants’ summary judgment motions and its brief in support of its renewed motion

for preliminary injunction. EPIC incorporated by reference the latter brief ir. its motion

for a temporary restraining order.

39a

Yne Service may have founded DFG activities necessary for PL to

perform the Exemption Harvests; and (6) the Service's exercise of

Section 9 enforcement authority gave it discretionary authority and

control over the Exemption Harvests.

In its Memorandum, the court rejected all these arguments based

on the general principle that, just as the Service does not engage in

“agency action” when it provides technical assistance or informal

guidance to private companies as to whether and to what extent a

proposal to harvest trees might affect a listed species (as the Ninth

Circuit held in Marbled Murrelet I), the Service does not engage in

agency action when providing similar advice and assistance to a state

agency that has a similar interest in enforcing laws to protect listed

species. The court hereby incorporates by reference the reasoning set

forth in that Memorandum and Order at Pages 9 and 10.°

Based on the Ninth Circuit's rulings, Defendants are entitled to

summary judgment on Plaintiffs’ claim relating to the Exemption

Harvests.

C. THE TIMBER HARVEST PLANS

in Marbled Murrelet I/, the Ninth Circuit, contrary to this court's

earlier finding, held that “there is no evidence of federal discretionary

involvement or control over [PL's] THPs." 111 F.3d at 1450.

Regardless of whether this court agrees with the Ninth Circuit's

holding, it must now conclude that, as a matter of law, the Service did

not engage in “agency action” under Section 7 of the ESA when tt

issued the concurrence letters that were necessary for PL to proceed

with its THP harvest activity. Defendants are thus entitled to summary

judgment on Plaintiffs’ claim relating to the THPs.

D. THE NATIONAL ENVIRONMENTAL POLICY ACT

Because the court has found that the Service did not engage in

"agency action” under Section 7 of the ESA, it follows that the Service

has not engaged in a “major Federal action" under NEPA's more

exclusive standard. Marbled Murrelet I, 83 F.3d at 1075. Defendants,

* In light of Marbled Murrelet I], the court wili not incorporate Footnote 3 on Page

10 of its Memorandum of September 17, 1996, which distinguishes between Plaintiffs’

clarms concerning the Exemption Harvests and the THPs.

40a

LNW ROR eT TNT,

therefore, are entitled to summary judgment on Plaintiffs NEPA

claims.

IV. CONCLUSION

For the reasons set forth above, there is no genuine dispute as to

any material fact and Defendants are entitled to judgment as a matter

of law on all claims. Accordingly, the court will grant Defendants'

motions for summary judgment. Because the court will enter judgment

in favor of Defendants and against Plaintiffs, it will not consider EPIC's

renewed motion for a preliminary injunction.

An appropriate Order follows.

ORDER

AND NOW, TO WIT, this 18th day of June, 1997, upon

consideration of Bruce Babbitt, Mollie Beattie, Michael Spear, and the

U.S. Fish & Wildlife Service's Motion to Dismiss or, in the Alternative,

for Summary Judgment, and Plaintiff Environmental Protection

Information Center, Inc.'s opposition thereto, IT IS ORDERED that

said motion is GRANTED.

Upon consideration of The Pacific Lumber Company, Scotia

Pacific Holding Company, and Salmon Creek Corporation's Motion for

Summary Judgment, and Plaintiff Environmental Protection

Information Center, Inc.'s opposition thereto, IT IS ORDERED that

said motion is GRANTED.

Judgment is entered in favor of Defendants and against Plaintiffs

on the claims under Section 7 of the Endangered Species Act and the

National Environmental Policy Act.

® The Federal Defendants also moved under Federal Rule of Civil Procedure

12(b)(1) on the ground that the court lacks subject-matter junsdiction over Plaintiffs’

ESA and NEPA/APA claims. The court's conclusion that, under the facts submitted,

no reasonable jury could find that the Service engaged in "agency action” or “major

Federal action” compels the conclusion that the court lacks subject-matter junsdiction

over Plaintiffs’ claims. Thus, the court will grant Defendants’ motion under Rule

12(b)(1).

4la

APPENDIX E

MARBLED MURRELET (Brachyramphus marmoratus);

NORTHERN SPOTTED OWL (Strix occidentalis caurina);

ENVIRONMENTAL PROTECTION INFORMATION CENTER,

BRUCE BABBITT, Secretary, U.S. Department of Interior,

Defendant, and PACIFIC LUMBER COMPANY, a Delaware

Corporation; SCOTIA PACIFIC HOLDING COMPANY, a

Delaware Corporation, SALMON CREEK CORPORATION, a

Delaware Corporation,

No. 96-15617

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

111 F.3d 1447; 1997 U.S. App. LEXIS 7648; 44 ERC (BNA) 1126;

97 Cal. Daily Op. Service 2847; 97 Daily Journal DAR 5029; 27

ELR 21141

November 4, 1996, Argued, Submitted, San Francisco,

April 18, 1997, Filed

PRIOR HISTORY: Appeal from the United States District Court for

the Northern District of California. D.C. No. CV-95-03261-LCB. Louis

Charles Bechtle, District Judge, Presiding.

DISPOSITION: Preliminary injunction is VACATED.

COUNSEL: Jared G. Carter, Rawles, Hinkle, Carter, Behnke &

Oglesby, Ukiah, California, for the defendants-appellants.

Thomas N. Lippe, Law Offices of Thomas N. Lippe, San Francisco,

California, for the plaintiffs-appellees.

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JUDGES: Before: William A. Norris, Alex Kozinski and A. Wallace

Tashima, Circuit Judges

OPINION BY: William A. Norris, J.

In an action filed on behalf of the marbled murrelet and the

northern spotted owl under the Endangered Species Act ("ESA") and

under the National Environmental Policy Act ("NEPA"), Appeilee

Environmental Protection Information Center ("EPIC") secured a

preliminary injunction enjoining Appellants from conducting logging

activities in Humboldt County, California pursuant to eight Timber

Harvest Plans ("THPs").

The district court granted EPIC's motion for the preliminary

injunction because in its view, EPIC had demonstrated (1) the existence

of serious questions on the merits as to whether ESA and NEPA had

been violated, and (2) a balance of hardships tipping in its favor.

Memorandum and Order, filed Apr. 9, 1996, at 39. Because we believe

EPIC has failed to demonstrate the existence of serious questions on the

merits as to whether ESA and NEPA have been violated, we VACATE

the preliminary injunction.

Before addressing the merits of the preliminary injunction, we turn

briefly to the question whether the district court properly exercised

jurisdiction over EPIC's ESA claim.

Appellants argue that the district court lacked subject matter

jurisdiction over EPIC's ESA claim because EPIC failed to give sixty

days notice of intent to sue under § 7 of ESA, as required by § 11(g) of

that Act. See 16 U.S.C. § 1540(g)(2)(A)(i). EPIC responds that the

requisite sixty day notice of intent to sue was contained in EPIC's

March 21, 1995 and April 3, 1995 letters to Appellants, the United

States Fish and Wildlife Service ("FWS") and the California

Department of Forestry and Fire Protection ("CDF").

Because we rule in favor of Appellants on the merits, we need not

resolve the fact-specific question whether EPIC's letters gave the

required notice of intent to sue.

On the merits, we disagree with the district court that EPIC has

raised serious questions as to whether FWS engaged in "agency action,"

as defined in § 7(a)(2) of ESA. Specifically, we disagree with the

district court that the FWS concurrence letters were "tantamount to an

approval of [Appellants] THPs under § 919.9(e)." Memorandum and

43a

Order, filed Apr. 9, 1996, at 23. Our review of this finding requires a

brief review of the statutory landscape.

In California, THPs must be approved by CDF. Cal. Pub. Res.

Code § 4581. To obtain CDF approval of a THP, plan submitters must

proceed in accordance with one of seven alternative procedures for

providing information to the Director of CDF. Cal. Code Regs. tit. 14,

§ 919.9. The information is used by the Director to evaluate whether or

not the proposed activity would result in the "take"’ of an individual

northern spotted owl. Jd.

The FWS concurrence letters are at issue because Appellants chose

to proceed under § 919.9(e), an option which allows CDF, in making

its evaluation, to consider an opinion by FWS that the planned timber

operations will not likely result in a take of the owl. See Cal. Code

Regs. tit. 14, § 919.9(e).’ The concurrence letters were two such

opinions.

EPIC argues that the district court was correct that there was a

serious question as to whether, in issuing the concurrence letters, FWS

engaged in agency action. In its view, CDF delegated its authority to

protect endangered species to FWS in Rule 919.9(e), and FWS, in

issuing the concurrence letters, accepted that delegation. Appellees’ Br.

at 19. Thus, according to EPIC, by approving Appellants’ Northern

Spotted Ow] Plan, FWS "enabled [Appellants] to obtain the approval

of its THPs by CDF. In essence, [FWS] granted [Appellants] a

subsidiary permit necessary for [Appellants] to obtain a permit from

CDF." Id.

Appellants argue that as a matter of state law, approval of and

control over any particular THP rests exclusively with the Director of

CDF. See Cal. Pub. Res. Code § 4582.7(e) (providing that the director

"chall have the final authority to determine whether a [THP] is in

conformance with the [applicable] rules and regulations"); Sierra Club

y. State Board of Forestry, 7 Cal. 4th 1215, 1220, 876 P.2d 505 (1994)

1 4 “take” occurs when a party “harasses, harms, pursues, hunts, shoots, wounds,

kills, traps, captures, or collects, or . . attempts to engage in any such conduct.” 16

U.S.C. § 1532(19).

2 Option (e) provides: "If the plan submitter proposes to proceed pursuant to the

outcome of a discussion of the proposed THP between the plan submitter and [FWS],

the plan submitter shall submit written documentation in the form of a letter

_ . .[stating] that the described or proposed management prescription is acceptable to

[FWS].” Cal. Code Regs. tit. 14, § 919.9%e).

44a

(noting that "the [California Board of Forestry] has the ultimate power

of approval over a [THP]"). In their view, the state law requirement in

§ 919.9(e) that Appellants consult with and obtain advice from FWS

does not convert that consultation and advice into some kind of "de

facto" approval process. Appellants’ Br. at 34. The concurrence letters,

they argue, "merely set forth FWS' views on how to avoid a violation

of [ESA] section 9." Id. at 36.°

In Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1074 (9th Cir.

1996) ("Murrelet I"), we decided that the factual evidence presented by

EPIC in support of its claim that FWS engaged in "agency action” by

providing advice on how the lumber companies could avoid a "take"

under § 9 of ESA was insufficient to support the

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