# Petition for Writ of Certiorario — Pacific Lumber Co. v. Marbled Murrelet > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0173%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorario - **Published:** January 1, 2000 - **Citation:** 528 U.S. 1115 ## Text _* Supreie Foot, us } a se a 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. il 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 iV 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) ee 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 Vi — 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 1X 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, V. 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 3 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). 4 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 5 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. 6 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. 7 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 8 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). 9 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. 10 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 11 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. 12 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. 13 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 14 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 copyright infringement.’® This Court has not resolved which rule 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. 15 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. 16 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”— 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 16a Sate eatS) 5 labatt. sd TRE TC eS SNe RARE RIE ERS RS nas RN © = 2 3 Pa ; : > £ «| A " = i ¢ =u 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 18a 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 - A ee 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 27a 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. 28a APPENDIX D MARBLED MURRELET (Brachyramphus marmoratus), NORTHERN SPOTTED OWL (Strix occidentalis caurina) and ENVIRONMENTAL PROTECTION INFORMATION CENTER, INC. v. 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: 29a 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 30a 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 32a 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, v. 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. 42a 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 issuance of a preliminary injunction because "nothing in the letter [at issue] justjfied an inference that [FWS] has the authority to enforce California's laws or regulations." We said that when an agency lacks the discretion to influence private action, there is no "agency action." Jd. In this case, CDF, not FWS, has the discretion to influence the private action at issue. See Cal. Pub. Res. Code § 4582.7(e); Sierra Club v. State Board of Forestry, 7 Cal. 4th 1215, 1220, 876 P.2d 505 (1994). As FWS stated in its November 20, 1992 concurrence letter, "our concurrence with [Appellants'] Plan does not constitute ‘approval’ of individual THPs. . . . Final determinations regarding satisfaction of [section 919.9(e)] . . . remain with the Board and the CDF." Thus, in this case, as in Murrelet IJ, there is no agency action. Implicit in this decision is our rejection of EPIC's argument that the State of California can somehow "delegate" its authority to influence private action to the federal government. Submission of a letter stating that the proposed management prescription is acceptable to FWS does satisfy Rule 919.9(e) - one of the seven options for providing information to CDF so that the Director of CDF can evaluate whether or not the proposed activity will result in a "take." However, it does so as a matter of state law. While the State of California may choose to credit FWS' opinion on the question whether proposed timber 3 Section 9 of ESA provides that it is unlawful to "take" any endangered species of fish or wildlife within the United States or the territorial sea of the United States. 16 U.S.C. § 1538(a)(1 (B). 45a operations will likely result in a take of protected species, it may not, in so doing, force "agency action" onto the federal government. In sum, there is no evidence of federal discretionary involvement or control over Appellants' THPs. As a result, there is no serious question whether FWS engaged in "agency action" under § 7 of ESA. Because we disagree with the district court's decision that EPIC raised serious questions as to whether FWS engaged in "agency action" under ESA, we necessarily also disagree with the district court's decision that EPIC raised serious questions as to whether FWS engaged in "majot federal action" under NEPA. As we said in Murrelet I, "if there is any difference [between ‘agency action’ and ‘major federal action'], case law indicates 'major federal action’ is the more exclusive standard." Murrelet I, 83 F.3d at 1074 (citing Sierra Club v. Babbitt, 65 F.3d 1502, 1512 (9th Cir. 1995)). The preliminary injunction is VACATED. ¢ EP [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0173%3A1. Public record. Not legal advice.