Amicus Curiae Brief — Pacific Lumber Co. v. Marbled Murrelet

MOTION FILED ae

uiu 5 1999, ae

No. 99-598

In the

Supreme Court of the United States

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THE PACIFIC LUMBER COMPANY, a Delaware

Corporation; SCOTIA PACIFIC HOLDING COMPANY,

a Delaware Corporation, SALMON CREEK

CORPORATION, a Delaware Corporation,

Petitioners,

Vv.

MARBLED MURRELET (Brachyramphus

marmoratus); NORTHERN SPOTTED OWL (Strix

occidentals caurina); ENVIRONMENTAL

PROTECTION INFORMATION CENTER, INC.,

Respondents.

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vv

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

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7

MOTION AND BRIEF AMICUS CURIAE

OF PACIFIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

RUSSELL C. BROOKS ROBIN L. RIVETT

Of Counsel Counsel of Record

Pacific Legal Foundation Pacific Legal Foundation

10800 NE 8th Street, Suite 325 10360 Old Placerville Road, Suite 100

Bellevue, Washington 98004 Sacramento, California 95827

Telephone: (425) 635-0970 Telephone: (916) 362-2833

Facsimile: (425) 635-0196 Facsimile: (916) 362-2932

Counsel for Amicus Curiae Pacific Legal Foundation

i

QUESTION PRESENTED

1. Whether the neutrally worded fee-shifting provision of the

federal Endangered Species Act, 16 U.S.C. § 1540(2)(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 v.

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

1

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation (PLF) respectfully moves this Court for leave to file

the attached brief amicus curiae and brief amicus curiae in

Support of the petition for writ of certiorari.'! Written consent

for amicus participation in this case was granted by counsel for

Pacific Lumber and has been lodged with the Clerk of the Court.

Counsel for Respondents Marbled Murrelet, Northern Spotted

Owl, and Environmental Protection Information Center has not

yet consented, necessitating this motion.

Pacific Legal Foundation is the largest and most

experienced nonprofit, tax-exempt public interest law

foundation of its kind in America. Founded in 1973, PLF

provides a voice in the courts for mainstream Americans who

believe in limited government, private property rights, individual

freedoms, and free enterprise. Thousands of individuals across

the country support PLF, as do numerous organizations and

associations. PLF is headquartered in Sacramento, California,

and has offices in Bellevue, Washington; Miami, Florida;

Honolulu, Hawaii; and a liaison office in Anchorage, Alaska.

PLF actively engages in research and litigation over a broad

spectrum of public interest issues nationwide. PLF advocates a

balanced approach in dealing with public interest issues and

supports the concept that governmental decisions and policies

should reflect a careful assessment of the social and economic

costs and benefits involved. PLF especially stresses this

approach in the area of land use and environmental legislation.

PLF devotes substantial resources to litigation and

administrative proceedings involving environmental issues in

’ Pursuant to Supreme Court Rule 37.6, Amicus Curiae Pacitic Legal Foundation

affirms that no counsel] for any party in this case authored this brief in whole or in part;

and, furthermore, that no person or entity has made a monetary contribution specificall y

for the preparation or submission of this brief.

2

general, and the Endangered Species Act in particular. PLF has

participated in numerous cases involving the correct

interpretation of environmental statutes including the

Endangered Species Act. For example, PLF was a party of

record in Pacific Legal Foundation v. Andrus, 657 F.2d 829

(6th Cir. 1981); participated as Amicus Curiae before the United

States Supreme Court in Bennett v. Spear, 520 U.S. 154 (1997),

and Babbitt v. Sweet Home Chapter of Communities for a Great

Oregon, 515 U.S. 687 (1995), and before the Court of Appeals

for the District of Columbia Circuit in National Association of

Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), and

Building Industry Association Vv. Babbitt, No. 97-5255

(D.C. Cir. 1997); and PLF attorneys served as lead counsel in

Fairy Shrimp Study Group v. Babbitt, No. 1:97CV02481

(D.D.C. 1998), which was successfully settled on October 26,

1999.

Amicus has examined the opinion of the Ninth Circuit

Court of Appeals and is familiar with the questions involved in

the litigation and the scope of the presentation. Amicus believes

that further argument would be of assistance to the Court.

Amicus would focus its presentation mainly on the legal

principles and policy interests behind Congress’ inclusion of

citizen suit provisions in environmental statutes.

PLF is concerned about the proper interpretation of the

Endangered Species Act and seeks to supplement Petitioners’

argument by illustrating the goals that Congress sought to

accomplish with citizen suit provisions in environmental statutes

and how prevailing defendants, such as the Petitioners in this

case, further those goals in their successful defense under the

Endangered Species Act, warranting an award of attorneys’

fees. In conjunction with the general goal of promoting species

conservation, Congress also seeks with the Endangered Species

Act to promote efficient administration of the Act’s conserva-

tion goals and to mitigate the economic consequences of

enforcement of the Act.

3

Petitioners as prevailing defendants advanced both of these

concerns. However, environmental advocates file the over-

whelming majority of citizen suits and, due to disincentives to

vigorous defenses, have been able to direct the interpretation

and implementation of environmental statutes away from the

balanced goals Congress envisioned. The result is environ-

mental statutes that emphasize species conservation with little

concern for economic and administrative efficiency. The fact

that plaintiffs possess the incentive of routine fee awards, in

addition to the usual ideological incentives, facilitates the

imbalance in the interpretation of those statutes. In order to

restore the needed balance and achieve all the goals that citizen

suits serve, incentives must also exist for defendants to litigate

because, without any incentive, defendants may too often refuse

to vigorously defend their actions and simply settle in order to

avoid the expense of litigation.

PLF’s public interest perspective, as well as PLF’s litigation

experience, will provide an additional and necessary perspective

on the important issues in this case. For these reasons, PLF

respectfully requests that this Court grant its motion for leave to

file the attached brief amicus curiae.

DATED: December, 1999.

Respectfully submitted,

RUSSELL C. BROOKS ROBIN L. RIVETT

Of Counsel Counsel of Record

Pacific Legal Foundation Pacific Legal Foundation

10800 NE 8th Street, Suite 325 10360 Old Placerville Road. Suite 100

4 Bellevuc, Washington 98004 Sacramento, California 95827

Telephone: (425) 635-0970 Telephone: (916) 362-2833

Facsimile: (425) 635-0196 Facsimile: (916) 362-2932

Counsel for Amicus Curiae Pacific Legal Foundation

i

TABLE OF CONTENTS

Page

MOTION FOR LEAVE TO FILE

SN PUG GAP oo sb Ohh dG des dweee en awses I

CUED TIN PREOENEED o.oo cess cccusescncncces i

py ae ig 8 ee anes Iv

INTEREST OF AMICUS CURIAE ................0... 1

SEAS EEETE OP Bit CAGE . ww ccc cence vsacsess 1

unary OOP ARCIUIMGEINT 6 occ cece accseccacece 2

SE CR eo kk gle d rye a ood oak ak Maur io 4

I. THIS COURT SHOULD GRANT THE WRIT

OF CERTIORARI TO RESOLVE CONFLICT

AND CONFUSION AMONG THE CIRCUITS ...... 4

I]. THIS COURT SHOULD GRANT THE WRIT

OF CERTIORARI TO ADDRESS THE

IMPORTANT QUESTION OF WHETHER

ATTORNEYS’ FEES SHOULD BE EQUALLY

AVAILABLE TO PREVAILING

DEFENDANTS AND PREVAILING

PLAINTIFFS IN ORDER TO ADVANCE

CONGRESS’ ENDANGERED SPECIES ACT

MANDATE TO CONSERVE SPECIES

EFFICIENTLY AND ECONOMICALLY ........... 5

Il. THIS COURT SHOULD GRANT THE WRIT

OF CERTIORARI TO ADDRESS THE

IMPORTANT QUESTION OF WHETHER THE

NINTH CIRCUIT’S DOUBLE STANDARD

FOR ENVIRONMENTAL CITIZEN SUIT

ATTORNEYS’ FEES DISRUPTS THE

BALANCE OF ENVIRONMENTAL LAWS ........ 8

TABLE OF CONTENTS—Continued

Page

A. Environmental Organizations Disrupt the

Balance of Environmental Statutes by Filing

the Vast Majority of Environmental Citizen

RR eng ery tr ea ein 1 ee 8

B. Defendants’ Lack of Incentives to Vigorously

Defend Against Citizen Suits Facilitates the

Ability of Environmental Advocacy Groups

to Disrupt the Balance of Environmental

ET CCE ee Te er Ore ee 9

IV. THIS COURT SHOULD GRANT THE WRIT

OF CERTIORARI TO ADDRESS THE

IMPORTANT QUESTION OF WHETHER

PREVAILING DEFENDANTS SHOULD

HAVE AN ATTORNEYS’ FEE INCENTIVE

TO LITIGATE VIGOROUSLY TO ENSURE

THE PROPER BALANCE IN THE LAW .......... 11

A. A Prevailing Defendant Who Promotes

Balance and Reason by Substantially

Contributing to the Goals of the Statute

Earns an Award of Attorneys’ Fees ........... 1]

B. ‘This Case Provides an Example of a

Prevailing Defendant Substantially

Contributing to the Goals of the Endangered

Species Act by Promoting Species

Conservation and Administrative Efficiency ..... 13

LE ok sR Teed ea coh Wk oe oe ee ak 16

iil

TABLE OF AUTHORITIES

Page

Cases

Alabama Power Co. v. Gorsuch, 672 F.2d 1 (D.C.

Oy ee Pare te nr

Atlantic States Legal Foundation, Inc. v. Eastman

Kodak Co., 12 F.3d 353 (2d Cir. 1994) ........... 11-12

Bennett v. Spear, 117 S. Ct. 1154 (1997) .........0...... 6

Carpenter v. Andrus, 499 F. Supp. 976 (D. Del.

en he Gee sek ea ahh ce 4d od wide ee oc 7

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) 0... cc ccc ccc cece 2

Christiansburg Garment Co. v. EEOC,

a 2

Environmental Defense Fund v. Environmental

Protection Agency, 672 F.2d 42 (D.C. Cir. 1982) ........ 5

Florida Power & Light Co. v. Costle,

ee ae ee Cs BORED 6 bc iec ceca du cncdicaaca 5

Marbled Murrelet v. Babbitt, 83 F.3d 1068

SE tba ee kak coke bom aeace causes 1-2, 13-15

Marbled Murrelet v. Babbitt, 111 F.3d 1447

NN i ane a ea ose coho As ue oe bao ac 1,14

Marbled Murrelet v. Babbitt, 182 F.3d 1091

oe Ae Se en en ee 2,4

National Wildlife Federation v. Consumers Power

Co., 862 F.2d S80 (6th Cir. 1988) .................. 12

iV

TABLE OF AUTHORITIES—Continued

Page

National Wildlife Federation v. Gorsuch,

OOS F.2e USAC, CAE. COE ia sc kk hee eden 12

Natural Resources Defense Council, Inc. v.

United States Environmental Protection

Agency, 822 F.2d 104 (D.C. Cir. 1987) ............. 5-6

Sierra Club v. Gorsuch, 672 F.2d 33

ae ne er ree re ere 5

Sierra Club v. Shell Oil Co., 817 F.2d 1169

2 8. eee eer eee errr arr 5

Federal Statutes

RA ee a cea s ha eee kee eee een ewenes 6

BS eer ree err er er er irre esc? 6

Foo 8 a eer ae ee eee ,

Be eye e ere re cee CE ee eye reer ey 1-3

Miscellaneous

Environmental Law Institute, Citizen Suits: An

Analysis of Citizen Enforcement Actions Under

EPA-Administered Statutes, Ill-10, 27 (1984) .......... 7)

Feller, Private Enforcement of Federal Anti-

Pollution Laws Through Citizen Suits: A Model,

fe ee er er eee 8-9

Michael S. Greve, The Private Enforcement of

Environmental Law, 65 Tul. L. Rev. 339 (1990) ..... 8-10

H. Rep. No. 294, 95th Cong. Ist Sess. 337,

reprinted in W977 U.S.C.C.ALN. TOTT wn cc ccc snsccccess 7

¥

TABLE OF AUTHORITIES—Continued

Note, Awards of Attorney's Fees in Environmental

Litigation: Citizen Suits and the ‘Appropriate’

Standard, 18 Ga. L. Rev. 307 (1984).............25.. 7

]

INTEREST OF AMICUS CURIAE

The interest of Amicus Curiae Pacific Legal Foundation is set

forth in the preceding motion.

STATEMENT OF THE CASE

The case below raised a fundamental question of fairness in

the interpretation of the attorney fee provision of the Endangered

Species Act. When a private party successfully defends its actions

in court and, in doing so, promotes species conservation and the

efficient administration of the Endangered Species Act, does the

Endangered Species Act allow, and does that party deserve, an

award of attorneys’ fees?

Pacific Lumber manages timber resources in Northern

California, including harvesting trees in need of salvage and also

Seeking to fill the public’s need for healthy trees. Pacific Lumber

bestows upon California economic benefits while utilizing

renewable forests to provide lumber for purposes such as housing.

When Pacific Lumber attempted to harvest the lumber on its

private land, including thinning out dead, dying, and diseased

trees, Respondents Environmental Protection Information Center

(EPIC) twice sued to stop Pacific Lumber from using the land it

owns. The Ninth Circuit Court of Appeals vacated the injunction

in both cases, deciding for the first time that the Fish and Wildlife

Service does not engage in agency action when providing advice

that a private party voluntarily seeks, Marbled Murrelet v.

Babbitt, 83 F.3d 1068 (9th Cir. 1996) (Murrelet 1). The court also

ruled that EPIC failed to raise a serious question regarding

whether Fish and Wildlife Service’s conduct constituted agency

action. Marbled Murrelet v. Babbitt, 111 F.3d 1447, 1449-50

(9th Cir. 1997) (Murrelet 11).

Relying on the Ninth Circuit’s ruling that Pacific Lumber

promoted species conservation and prevented the imposition of

burdensome administrative tasks upon Fish and Wildlife Service,

Pacific Lumber petitioned the district court for attorneys’ fees

pursuant to 16 U.S.C. § 1540(g)(4) of the Endangered Species

)

Act. See Murrelet 1], 83 F.3d at 1075. However, the district court

denied the request, concluding that Pacific Lumber sought only to

cut down its trees.

On appeal, the Ninth Circuit affirmed the district court,

rejecting its own standard previously set forth in Carson-Truckee

Water Conservancy District v. Secretary of the Interior, 748 F.2d

523 (9th Cir. 1984), ceri. denied, Pyramid Lake Paiute Tribe v.

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

(1985). In Carson-Truckee, the court held that a prevailing

defendant need only “substantially contribute” to the goals of the

environmental statute to qualify for attorneys’ fees. But in this

case the court held that the double standard applicable to civil

rights claims would henceforth be applied to prevailing defendants

in environmental cases even when the statute authorizes an award

of attorneys’ fees “to any party, whenever . . . appropriate.” See

Christiansburg Garment Company v. EEOC, 434 U.S. 412

(1978); Marbled Murrelet v. Babbitt, 182 F.3d 1091, 1095

(9th Cir. 1999). Notwithstanding the neutral-wording of the fee-

shifting provision, under this standard a prevailing defendant may

receive attorneys’ fees only if the underlying lawsuit is

unreasonable, frivolous, meritless, or vexatious.

SUMMARY OF ARGUMENT

This petition involves interpretation of the Endangered

Species Act attorney fee provision which states:

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). However, at issue in this case is not only

the plain meaning of the citizen suit provision of the Endangered

Species Act, but also the important policy interests behind citizen

Suit provisions in environmental statutes. The importance of these

policy interests is apparent in light of the increasing number of

3

environmental citizen suits filed in recent years and the way in

which these suits shape environmental laws and public conduct.

The Endangered Species Act provides that “any party” may

obtain fees “whenever . . . appropriate.” 16 U.S.C. § 1540(g)(4).

Neither the Endangered Species Act nor its legislative history

defines the term “whenever . . . appropriate.” Instead, the

“substantial contribution” standard has been relied upon to define

the term because this Court, as well as the Courts of Appeals for

the Fifth Circuit and the District of Columbia, and formerly the

Ninth Circuit, all apply the standard when determining the

appropriateness of a fee award under the Endangered Species Act

or the identical provisions in the Clean Air Act and the Clean

Water Act. These courts, using the substantial contribution

standard, define the term “whenever appropriate” to require only

that a party substantially contribute to the goals of the environ-

mental statute involved. They do not distinguish between

plaintiffs and defendants.

The Ninth Circuit overturned circuit precedent in this case

and held that the Endangered Species Act provides fee awards

only to plaintiffs unless the suit is unreasonable, frivolous.

vexatious, or meritless, in which case a defendant may recover

fees. However, the court’s ruling, that a “double standard”

applies in awarding attorneys’ fees in environmental cases, creates

uncertainty and conflict not only among the circuits, but also

within the Ninth Circuit itself.

The Endangered Species Act, like most environmental

Statutes, seeks to accomplish more than one goal. The

Endangered Species Act serves not only to conserve species, but

also balances species conservation with economic interests and

administrative efficiency. These competing goals sometimes

conflict. Thus, the Endangered Species Act requires vigorous

litigation to define its terms in a balanced and reasoned manner.

The number of citizen suits filed has increased substantially and

4

the effect that these suits have in shaping environmental law is

Significant.

Environmental advocates file the overwhelming majority of

citizen suits and, due to disincentives to vigorous defenses, have

been able to slant the interpretation and implementation of the

Statutes to their favor. The result is environmental statutes that

emphasize species conservation with little concern for economic

interests and administrative efficiency. The fact that plaintiffs

possess the incentive of routine fee awards, in addition to the

usual ideological incentives, facilitates an imbalance in the inter-

pretation of those siatutes. In order to restore the needed balance

and achieve all the goals that citizen suits serve, incentives must

also exist for defendants to litigate. Otherwise, without any incen-

tive, defendants may too often refuse to vigorously defend their

actions or decide to settle in order to avoid the expense of

litigation.

Pacific Lumber illustrates the importance of defendants

putting forth a vigorous defense. Pacific Lumber meets the

“whenever appropriate” test of the Endangered Species Act

because Pacific Lumber demonstrated that its successful defense

Substantially contributed to the competing goals of the

Endangered Species Act. This is the test that should be employed

under the Endangered Species Act. The Court should review this

case to establish this critical principle.

ARGUMENT

I

THIS COURT SHOULD GRANT THE WRIT OF

CERTIORARI TO RESOLVE CONFLICT AND

CONFUSION AMONG THE CIRCUITS

The Ninth Circuit admits that it interprets the attorneys’ fees

provisions of environmental statutes differently for prevailing

defendants than for prevailing plaintiffs. See Marbled Murrelet v.

Babbitt, 182 F.3d at 1094-95. For example, the Ninth Circuit’s

5

ruling regarding Pacific Lumber’s request for attorneys’ fees

conflicts with its previous ruling in Carson-Truckee, which held

by implication that a prevailing defendant-intervenor who

“substantially contributes” to the Endangered Species Act qualifies

for a fee award. Moreover, this most recent Ninth Circuit

interpretation of an environmental statute’s attorneys’ fee

provision also conflicts with the Fifth Circuit Court of Appeals

and the District of Columbia Circuit Court of Appeals. Both of

those circuits apply the substantial contribution standard to the

identical provisions of the Clean Water Act and the Clean Air Act

with no suggestion of a “double standard.” See Sierra Club v.

Shell Oil Co., 817 F.2d 1169, 1176 (Sth Cir. 1987); Florida

Power & Light Co. v. Costle, 683 F.2d 941 (Sth Cir. 1982);

Alabama Power Co. v. Gorsuch, 672 F.2d 1 (D.C. Cir. 1982);

Sierra Club v. Gorsuch, 672 F.2d 33 (D.C. Cir. 1982);

Environmental Defense Fund v. Environmental Protection

Agency, 672 F.2d 42 (D.C. Cir. 1982).

This Court should grant the writ of certiorari in order to

eliminate the confusion between the circuits over the question of

when it is appropriate to award citizen suits attorneys’ fees under

environmental statutes.

THIS COURT SHOULD GRANT THE WRIT OF

CERTIORARI TO ADDRESS THE IMPORTANT

QUESTION OF WHETHER ATTORNEYS’ FEES

SHOULD BE EQUALLY AVAILABLE TO

PREVAILING DEFENDANTS AND PREVAILING

PLAINTIFFS IN ORDER TO ADVANCE

CONGRESS’ ENDANGERED SPECIES ACT

MANDATE TO CONSERVE SPECIES

EFFICIENTLY AND ECONOMICALLY

“It scarcely needs repeating that statutes are rarely, if ever,

unidimensionally directed towards achieving or vindicating a

single public policy.” Natural Resources Defense Council, Inc. v.

United States Environmental Protection Agency, 822 F.2d 104,

6

113 (D.C. Cir. 1987). Thus, although Congress intended the

Endangered Species Act to promote species conservation,

Congress tempered that aim by requiring that the economic

interests of entities affected by the statute be considered, and the

efficient administration of the statute’s terms be considered. See

Bennett v. Spear, 117 S. Ct. 1154, 1168 (1997). However, the

Ninth Circuit’s decision threatens the balance intended by

Congress because it imposes upon defendants a disincentive to

litigate vigorously.

In Bennett, this Court recognized that C ongress placed

within the Endangered Species Act protections against haphazard

administration and “needless economic dislocation.” Jd. For

example, in determining critical habitat, the Endangered Species

Act directs the Secretary of the Interior to consider the economic

impact of designating habitat and to use Only the best scientific

data available in making the designation. 16 U.S.C. § 1533(b)(2).

Thus, although Congress intended the Endangered Species Act to

protect the natural environment as essential to a species’ survival,

Congress also recognized that it is imperative, due to the profound

effect of the Endangered Species Act, to not haphazardly and

needlessly set aside habitat and to make those habitat

determinations by employing only the best available scientific data.

Accordingly, this Court stated in Bennett: “We believe the ‘best

scientific and commercial data’ provision is similarly intended, at

least in part, to prevent uneconomic (because erroneous) jeopardy

determinations.” /d.

In addition, this Court noted in Bennett that “economic

consequences are an explicit concern of the Act,” recognizing that

Congress allows federal actions to jeopardize endangered species

and/or their habitats if no reasonable and prudent alternative

exists, if the action’s benefits outweigh the benefits of species

conservation, or if the action is of regional or national significance.

Bennett, 117 S. Ct. at 1168; 16 U.S.C. § 1536(h)( 1 )(A)(i)-(iii).

Congress also approves of the “incidental take” of endangered

7

species when the impact of the “take” is mitigated or minimized.

16 U.S.C. § 1539(a)(2)(A).

Other environmental statutes similarly promote multiple,

competing goals. For example, Congress explicitly stated

regarding the Clean Air Act that “the purposes of the

authorization to award fees are not only to discourage frivolous

litigation, but also to encourage litigation which will assure proper

implementation and administration of the act or otherwise serve

the public interest.” H. Rep. No. 294, 95th Cong. Ist Sess. 337,

reprinted in 1977 U.S.C.C.A.N. 1077, 1416. Congress’ intent

regarding fee awards applies not only to the Clean Air Act but

also the Endangered Species Act. “The legislative history behind

most environmental fee-shifting provisions is sparse. Since the

legislative history of the fee awards provisions of the Clean Air

Act is the most extensive available, courts usually refer to this

history even when interpreting the applicable standard in other

environmental statutes.” Note, Awards of Attorney's Fees in

Environmental Litigation: Citizen Suits and the “Appropriate”

Standard, 18 Ga. L. Rev. 307, 327 (1984); see also Carpenter v.

Andrus, 499 F. Supp. 976, 979 (D. Del. 1980).

Thus, Congress balances competing goals within environ-

mental statutes: environmental protection versus economic

interests and administrative efficiency. The above provisions

illustrate Congress’ recognition that conservation must be

balanced with these other interests to the greatest extent possible

in order to be most effective. Regarding the Endangered Species

Act, efficient administration eases the burden of implementation

and allows effective species protection at less cost to the

government. Similarly, mitigation of economic impacts eases the

burden of compliance and facilitates voluntary public participation

in species protection.

The Ninth Circuit’s skewed attorneys’ fee standard for

prevailing defendants threatens to undermine congressional intent

and contradicts this Court’s understanding of the economic goals

8

of the Endangered Species Act. Thus, this Court should grant the

writ of certiorari to resolve the conflict.

THIS COURT SHOULD GRANT THE WRIT OF

CERTIORARI TO ADDRESS THE IMPORTANT

QUESTION OF WHETHER THE NINTH CIRCUIT’S

DOUBLE STANDARD FOR ENVIRONMENTAL

CITIZEN SUIT ATTORNEYS’ FEES DISRUPTS THE

BALANCE OF ENVIRONMENTAL LAWS

A. Environmental Organizations Disrupt the Balance

of Environmental Statutes by Filing the Vast

Majority of Environmental Citizen Suits

Many federal environmental statutes contain a citizen suit

provision that allows “any person” to sue private parties for

noncompliance with statutory provisions or with standards and

regulations issued under the statute. When Congress first included

citizen suit provisions in environmental statutes, it expected that

citizen suits against alleged polluters would usually be brought by

individual “concerned citizens,” not by nationally organized

environmental advocacy groups. Michael S. Greve, The Private

Enforcement of Environmental Law, 65 Tul. L. Rev. 339, 351

(1990). However, environmental advocacy groups have filed the

vast majority of private enforcement actions. For example, they

accounted for roughly two-thirds of enforcement action under the

Clean Water Act between 1984 and 1988. Jd. at 352. Indeed,

only five environmental groups filed more than half of the notices

of intent to sue during that time. /d. at 353.

If citizen suits were not so frequently filed, they might exist

only as the safety valve that Congress intended, to allow

enforcement when the government is either unwilling or unable to

proceed. For example, until 1978, only 25 cases were brought

directly against alleged polluters under the Clean Air Act and the

Clean Water Act. See Feller, Private Enforcement of Federal

Anti-Pollution Laws Through Citizen Suits: A Model, 60 Denv.

9

L. J. 553 (1983). Between 1978 and 1981, an average of fewer

than five suits per year were filed against private firms under the

Clean Water Act. Environmental Law Institute, Citizen Suits: An

Analysis of Citizen Enforcement Actions Under EPA-

Administered Statutes, Il]-10, 27, 29 (1984).

However, beginning in 1982 the number of citizen suits and

notices of intent to sue began to increase dramatically. Greve,

Private Enforcement of Environmental Law at 352. For example,

between January, 1982, and September, 1988, the EPA received

1,020 notices of intent to sue under the Clean Water Act. /d. at

352-53. Thus, citizen suits have become more than an

occasionally used safety valve. Under some environmental

Statutes, they seem to have become the dominantly used federal

judicial enforcement mechanism. Citizen suits are not a mere

occasional device used to spur reluctant agencies into action, nor

are they extraordinary remedies for unusual administrative failures.

Instead, they have become the means of obtaining a major

realignment of roles and powers in important areas of regulation.

Citizen suits invite judicial lawmaking and can place courts

in the position of having to define the scope of regulatory

requirements. These opportunities for judicial lawmaking,

brought most often by environmental advocacy groups, invite

inconsistent enforcement and the loss of control over these

regulatory programs. As such, their significance can hardly be

doubted.

B. Defendants’ Lack of Incentives to Vigorously

Defend Against Citizen Suits Facilitates the

Ability of Environmental Advocacy Groups to

Disrupt the Balance of Environmental Laws

With little incentive to litigate, the cost of vigorously

defending a lawsuit can be so great that it is most often less

expensive to settle early. Not only is the trial itself expensive, but

defendants are also subject to attorneys’ fees and costs. Thus,

accused parties readily pay money to settle disputes rather than

10

endure long, expensive trials. Environmental organizations

recognize this fact, choosing most often to proceed against private

industry rather than against government entities. Greve, The

Private Enforcement of Environmental Law at 362-63. -For

example, between 1978 and 1984, organized environmental

groups brought 162 actions under the Clean Water Act against

private industry, but not a single case against a municipal entity.

Id. at 362. Between 1984 and 1988, they still filed more than six

times as many notices of intent to sue against private industry as

against governmental entities. /d.

This preference for suing private industry cannot be

explained by environmental considerations--municipal facilities

cause far more water pollution than private industry, and violate

their permits far more frequently. /d. Instead, the preference is

explained by a private corporation’s greater capacity for fast

decisionmaking. Generally, settlements with private defendants

are less complicated and less expensive than negotiations with a

government body that worries about the consequences of

settlement and accountability to the electorate. Jd. at 362-63.

These advocacy groups litigate based upon their own agenda

and seek to enforce their own interpretations of the law, which are

naturally biased toward strict enforcement, at the expense of

mitigation and efficiency. When these groups succeed, their

interpretations become the law, and case upon case can eventually

disrupt the balance of the statutes that Congress intended. When

the case precedent moves increasingly toward the viewpoint of

environmental advocates, the likelihood of settlement also

increases. However, these settlements do not result in increased

efficiency. Instead, compliance with environmental laws becomes

more costly and less efficient.

Thus, the Ninth Circuit’s ruling in this case has disrupted the

balance established in the Endangered Species Act by establishing

a disincentive for defendants to litigate vigorously while at the

same time reenforcing a strong incentive for plaintiffs to Strictly

1]

and vigorously prosecute environmental litigation. This Court

Should grant the writ of certiorari to address the important

question of whether an incentive for defendants to vigorously

defend against citizen suit litigation will promote the balance that

Congress intended in the Act.

IV

THIS COURT SHOULD GRANT THE WRIT OF

CERTIORARI TO ADDRESS THE IMPORTANT

QUESTION OF WHETHER PREVAILING

DEFENDANTS SHOULD HAVE AN ATTORNEYS’ FEE

INCENTIVE TO LITIGATE VIGOROUSLY TO

ENSURE THE PROPER BALANCE IN THE LAW

When a defendant charged with violating an environmental

law chooses to defend itself and prevails, the result is often a more

reasonable interpretation of the environmental statute in which all

parties benefit. No one benefits from environmental restrictions

at any cost. Congress itself recognized this in attempting to

balance various interests by imposing environmental protections

within certain frameworks, upon following administrative proce-

dures, and in specific contexts. This equilibrium, however, is

achieved most often only when a defendant chooses to vigorously

defend itself in court. Unfortunately, a litigation incentive rarely

exists for defendants.

A. A Prevailing Defendant Who Promotes Balance and

Reason by Substantially Contributing to the Goals of

the Statute Earns an Award of Attorneys’ Fees

Examples abound in which prevailing defendants have

injected balance and reason into the interpretation of environ-

mental statutes. For example, in Atlantic States Legal

Foundation, Inc. v. Eastman Kodak Co., 12 F.3d 353 (2d Cir.

1994), the court stated: “The EPA has never acted in any way to

Suggest that Atlantic States’ absolutist and wholly impractical!

view of the legal effect of a permit is valid.” /d. at 357. In that

case, the court defined the boundaries of the Clean Water Act b)

a

a

holding that one may discharge substances not listed in a discharge

permit without violating the Clean Water Act as long as one

complies with existing reporting requirements. Jd. at 357.

Rejecting the environmental plaintiff’s argument the court stated:

“Atlantic States’ view of the regulatory framework stands that

scheme on its head.” Jd. The benefit to the general public

resulting from the defendant’s vigorous defense is found in the

court’s conclusion that “[c]ompiiance with such a permit would

be impossible and anybody seeking to harass a permittee need only

analyze that permittee’s discharge until determining the presence

of a substance not identified in the permit.” /d. (quoting EPA

memorandum).

The Eastman Kodak case provides an excellent example of

why defendants must be encouraged to defend lawsuits with

incentives such as an award of attorneys’ fees and costs when they

substantially contribute to the goals of an environmental statute.

The importance of a prevailing defendant’s contribution cannot be

understated. One can only imagine the harm that would have been

caused if Atlantic States had prevailed in Eastman Kodak, given

that it “could provide no principled reason why water itself. . .

would not be considered a ‘pollutant’ under its view of the Act.”

Id.

Another good example of the broad public benefit and

balance that can result from a vigorous defense is found in

National Wildlife Federation v. Consumers Power C 0., 862 F.2d

580 (6th Cir. 1988). In analyzing the requirements of the Clean

Water Act, the court held that a hydroelectric facility’s movement

of pollutants already in the water did not constitute an “‘addition’

of pollutants” requiring a discharge permit. /d. at 581. Adhering

again to the balanced reasoning of Congress, the court stated that

“[h]ad Congress wanted to . . . regulate all sources of pollution,

‘it would easily have chosen suitable language.’” Jd. at 586

(quoting National Wildlife Federation v. Gorsuch, 693 F.2d 156,

176 (D.C. Cir. 1982)). Again, one can Only imagine the

unnecessary burdens that would have been imposed upon the

RRR

13

nation’s power producing industry and the costs imposed on the

nation’s consumers had the extreme position of environmental

advocates not been aggressively opposed by the defendants in this

case.

Thus, vigorous litigation develops and refines these statutes

by interpreting and implementing their terms. Specifically, the

Endangered Species Act operates more effectively and efficiently

when its parameters and provisions are defined, and its future

application becomes more certain. This case is an example of that

process because, as the result of a private party defending its

actions in court, the Act now provides increased species

protection more effectively and efficiently. However, by refusing

to recognize Petitioners’ contributions to the goals of the Act, the

lower court imposes a disincentive to litigate against unreasonable

interpretations of the law. This disincentive will not enhance

species protection. This case must be reviewed to address the

propriety of such disincentives.

B. This Case Provides an Example of a Prevailing

Defendant Substantially Contributing to the Goals of

the Endangered Species Act by Promoting Species

Conservation and Administrative Efficiency

Pacific Lumber set an example in encouraging proactive,

voluntary consultation and communication with a federal agency

in an effort to avoid “taking” a species. By seeking and obtaining

informal Fish and Wildlife Service review and recommendations

to ensure that its actions fully complied with the Endangered

Species Act, Pacific Lumber facilitated the government’s ability to

avoid an unnecessary commitment of substantial resources and set

a new standard for communication that ensures better compliance

with the Act. The Ninth Circuit Court of Appeals recognized

Pacific Lumber’s contributions in Murrelet /, stating:

Protection of endangered species would not be

enhanced by a rule which would require a federal

agency to perform the burdensome procedural tasks

14

mandated by section 7 simply because it advised or

consulted with a private party.

Murrelet 1, 83 F.3d at 1074. Furthermore, the Ninth Circuit

illustrated the usefulness of the new rule and the importance of its

holding in Murrelet / by extending it in Murrelet I/ to cover cases

in which Fish and Wildlife Service approval is a prerequisite to

State approval. Murrelet //, 111 F.3d at 1450.

Agreeing with Pacific Lumber on a matter of first impression,

the Ninth Circuit stated that its holding prevented the imposition

of burdensome procedural tasks on a federal agency that would

constitute a disincentive for federal agencies to provide informal

advice or consultation. Murrelet 1, 83 F.3d at 1074. Accordingly,

Pacific Lumber assisted in ensuring that projects of the nature

involved in this case will receive the informal consultation and

advice that they require, resulting in greater species protection.

Pacific Lumber’s successful defense further promotes species

protection by conserving the government’s limited resources and

ensuring the availability of resources for other projects more in

need of oversight. This facilitates the proper allocation of Fish

and Wildlife Service resources and the most beneficial focus of the

Fish and Wildlife Service’s attention. Accordingly, because the

Fish and Wildlife Service may utilize the funds “saved” by Pacific

Lumber to address projects constituting a greater threat to

endangered species, Pacific Lumber enhanced the protection of

those species.

Finally, Pacific Lumber contributed to the Endangered

Species Act by ensuring greater and more effective compliance

with the Act by establishing an easier, more efficient method of

communication with the government. No longer must private

parties possess apprehension regarding government evaluation of

a project. The Ninth Circuit illustrated the argument in holding

that under a contrary ruling

SS

15

private parties who wanted advice on how to comply

with the Endangered Species Act would be loath to

contact the USFWS for fear of triggering burdensome

bureaucratic procedures. As a result, desirable

communications 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.

Murrelet 1, 83 F.3d at 1074-75. Pacific Lumber’s successful

defense provides instead an incentive encouraging cooperation

with the Fish and Wildlife Service in the initial stages of a project

to ensure that species are not harmed. In sum, Pacific Lumber

substantially contributed to species protection by clarifying the

language, intent, and meaning of Endangered Species Act

consultations; setting an example of proactive planning that avoids

burdensome procedures; and facilitating and encouraging

communication with federal agencies.

Moreover, Pacific Lumber’s successful defense of its

voluntary communication with the Fish and Wildlife Service not

only promotes species conservation, it also results in a more

efficient Act. The Endangered Species Act protects species more

efficiently because the new interpretation encourages private

parties to seek environmental advice from the government to

prevent harm to protected species. One beneficial effect of the

increase in efficiency is the goodwill resulting from cooperation

between private parties and the government. Because Pacific

Lumber established a new channel of communication, private

parties and the government may work together to solve problems.

A less burdensome process promotes cooperation and communi-

cation among all parties by erasing the barriers that inhibit

government consultation and thereby benefits not only the parties,

but also protected species.

Accordingly, this Court should grant the writ of certiorari to

address the important question of whether Congress intended

16

courts to encourage defendants such as Pacific Lumber to

vigorously defend their actions under the Endangered Species Act

through more accessible attorneys’ fees.

CONCLUSION

The Ninth Circuit’s “double standard” regarding attorneys’

fees conflicts with the decisions of the Fifth Circuit Court of

Appeals and the District of Columbia Circuit Court of Appeals.

The conflict created by this “double standard” creates uncertainty

and inconsistency among the circuits. Moreover, the “double

standard” applied by the Ninth Circuit in its most recent decision

imposes a disincentive for defendants to vigorously defend their

actions when they are justified in doing so. Such a disincentive

reinforces the pro-plaintiff emphasis present in many courts today,

to the detriment of the goals of economic and administrative

efficiency.

To restore Congress’ mandate of evenhanded application of

environmental laws, to ensure that all of Congress’ Endangered

Species Act goals are served, and to avoid conflict and confusion

regarding the appropriate standard under the Endangered Species

Act for an award of attorneys’ fees to prevailing defendants, this

Court should grant the writ of certiorari.

DATED: December, 1999.

Respectfully submitted,

RUSSELL C. BROOKS ROBIN L. RIVETT

Of Counsel Counsel of Record

Pacific Legal Foundation Pacific Legal Foundation

10800 NE 8th Street, Suite 325 10360 Old Placerville Road, Suite 100

Bellevue, Washington 98004 Sacramento, California 95827

Telephone: (425) 635-0970 Telephone: (916) 362-2833

Facsimile: (425) 635-0196 Facsimile: (916) 362-2932

Counsel for Amicus Pacific Legal Foundation

POD Rh Oa ee