# Opposition Brief — Pacific Lumber Co. v. Marbled Murrelet

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0173%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 1115

## Text

SO RAE G LEDIDEDE A DAOC ABE LEE

No. 99-598

$

i 1QGC ;

In The :

- A ae
Supreme Court of the UniltedicStates °°" |

*
Y > q1
KCIFIC LUMBER COMPAN Le ry
SCOTIA PACIFIC COMPANY, LL
1 Delaware corporati nd SALMON CREEA
CORPORATION Del re | t
MARBLED MURKEL
ORTHERN SPOTTED OV
ind ENVIRONMES | PROTECTIE
INFORMATIO ry

On Petition For A Writ Of Certiorarit To The United State:
Court Of Appeals For The Ninth Circuit
rs
BRIEF OF RESPONDENT IN OPPOSITION
1O PETITION FOR WRIT OF CERTIORARI

“

&
| \
i NV. od
ri
] cy se Tpa NJ |
i . i
x " , C 1
c? larket idZa >t lal i
1
rxteent b I I
1
an Franc CA Y4]
, ‘ ve
l¢ (415) hI
fan } | 5
v ) } |)
( ) rit t , SH i | i
| . | ag } _
4 irving treet Ulle
: : {
DAN FTrAaNncisce CA Yelle
| 1¢
2h; {419} I00-I5¢
| 17 7c 14 4
aX t ? t
ry
ry fs ) rid } ]
J), Bi f rye } ae ’

QUESTION PRESENTED

Does the Ninth Circuit’s application in this case of uni-
form Supreme Court and appellate court precedent on fee
awards in public interest cases provide any reason to grant a

writ of certiorar?

CORPORATE DISCLOSURE

Pursuant to Supreme Court Rule 29.6, respondent Envi-
ronmental Protection Information Center states that it has no

parent companies, subsidiaries, or affiliates.

TABLE OF CONTENTS

Page

ee pe 8) 8 | a era v

EM PURI io kee cess gees saw bo |

i SeAtemen: OF THE CASE ............ 2

i a 6
A. THIS COURT SHOULD DENY THE PETI-

B.

TION FOR CERTIORARI BECAUSE THE
DISTRICT COURT LACKED SUBJECT
MATTER JURISDICTION OVER EPIC’S
CLAIMS UNDER SECTION 7 OF THE
ENDANGEMED SreCies ACT ...........

1. The District Court Held That It Lacked
Subject Matter Jurisdiction Over Plain-
tiffs’ ESA § 7 Claims ....

2. The ESA Does Not Confer Jurisdiction to
Award Attorney Fees Where There Is No
Jurisdiction Over the Underlying Claim ...

Since the District Court Lacked Jurisdiction
Over EPIC’s ESA § 7 Claims, Pacific Lum-
ber Did Not Prevail On The Merits . .

a

THE ENDANGERED SPECIES ACT DOES
NOT AUTHORIZE PACIFIC LUMBER’S
FEE MOTION OR ITS PETITION FOR
CERTIORARI...

PACIFIC LUMBER’S PROPOSED STAN-
DARD FOR AWARDING FEES UNDER
THE ENDANGERED SPECIES ACT TO
PREVAILING DEFENDANTS IS UNPREC-
EDENTED AND INCORRECT ............

6

6

9

TABLE OF CONTENTS — Continued

Page

|. Petitioner's Assertion That the ESA Fee
Provision Requires Treating Plaintiffs
and Defendants Equally Is Incorrect....

to

The Term “When Appropriate” Should
Be Interpreted In Light of the Purposes
of the Endangered Species Act........

3. The Evolution of Statutory Language In
Federal Environmental Citizen Suit Pro-
visions Confirms That Congress
Approves of the Dual Standard For Fees
ih A Ae NG. Gy ee ein eas we

4. The Legislative History of the ESA Sup-
ports the Court’s Dual Standard
errr re rere ne ee ee

5. The Court Has Previously Recognized
That It Is Appropriate to Apply Civil
Rights Fee Jurisprudence To Fee Issues
In Environmental Cases.............

D. THERE IS NO DISCREPANCY AMONG
THE LOWER COURTS FOR THIS COURT
pi, # |) 3 Se ear ararar rere rere ar

E. GRANTING THE PETITION FOR WRIT OF
CERTIORARI WILL NOT AFFECT THE

RIGHTS OF THE PARTIES AND WOULD
BE AM ADVISORY OFINGON ... 2.315.664;

OM ee IE exe eel caeieweyeeecny NS

19

27

9

30

TABLE OF AUTHORITIES

CASES

Amutts v. Amoco, Inc., 53 F.3d 690 (Sth Cir. 1995)... ..

Atlantic States Legal Foundation v. Arrow Transpor-
tation Co., Civil No. 95-147-HA (D. Ore... Jan. 27.
bg St DI cet St Se aft 2 ee ne

Atlantic States Legal Foundation v. Onondaga
Department of Drainage and Sanitation, 899
F. Supp. 84 (N.D.IN-Y. 1995) Passat anise uae

Bennett v. Spear, 520 U.S. 154 (1997) .20.00.0..9,

Branson v. Nott, 62 F.3d 287 (9th Cir. 1994)...

Carson-Truckee Water Conserv. Dist. vo Sec’y of the

Intertor, 748 F.2d 523 (9th Cir. 1984)... 4. 16,

Christianburg Garment Co. v. EEOC, 434 U.S. 412
Ces) ee Pee er er re eRe eh ea

28

Clifton v. Heckler, 755 F.2d 1138 (Sth Cir. 1985) |. S
Consolidated Edison Co. v. Realty Investment Co.,

524. F. Supp. 150 (S.D. N.Y. 1961)... ee 19, 28
Earth Island Institute vy. Albright, 147 F.3d 1352

oh. | Cae eRe ra ee eT Pe AN he oooh, v)
Environmental Compliance Oversight Corp. v.

SmithKline Beecham Corp., 1994 WL 675297 (E.D.

Pe. TOON, 2h Be oc eee ee 28
Finn v. United States, 856 F.2d 606 (4th Cir. 1988). &
Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) ..12, 13. 14
Friends of Boundary Waters Wilderness v. Thomas, 53

re TE CBG Se: PO eon eaneee eee ts |
Greater Detroit Resource Recovery Authority v. EPA,

916 F.2d 317 (Gb Cie, 1990)... eee we 7

Hallstrom v. Tillanook County, 493 U.S. 20 (1989)... .. 26

vi

TABLE OF AUTHORITIES — Continued

Page
Hecla Mining Company v. Washington Wilderness

Coalition. 119 S.Ct. 1940 (March 8, 199%) ....-----:- y
Hensley v. Eckerhart, 461 U.S. 424 (19%2) — 25
Huvhes v. Rowe, 449 U.S. 5 (1980) . 7)
Independent Federation of Flight Attendants vo Zipes,

49] US. 754 (1989)...... : oe eae
Keene Corp. v. Cass, 908% F2d 293 (th Cir. 1990)... .7. %
Keene Corp 4 United States, 50% U.S. 200 (1993) 26
Latch vo United States, $42 F.2d 1031 (Oth Cir 198K). 7
Lordlard vo Pons, 434 US $75 (197%) 19
Marbled Murrelet v» Babbitt (“Murrelet (0) %3 b.3d

106% (9th Cir 1996) $..'6
Marbled Murrelet.. Babbut(“Murrelet Hy. VA 3d

1447 (9th Cir 1997) > 6
Natenal Audubon Society \— Babbitt Case No. CV

94-0105-GT (S.D. Cal., Dec. 15. 1994) 2%
Nanonal Wildlite Federatton 1 Consumers Power

Co. 729 F Supp. 62 (Wo). Mich 1989) 2%
Samrat Resources Defense Council, Inc v Train, STO

Ig 692 (D.C. Cir. 1975) 21, 25
Vewman vv Prevte Park Enterprises, Inc.. 3890 US

100) (196%) 1. 13
Orchard Lane Road Association vo Pete Lien & Sons,

Ine 163d 416, 1994 US. App LEXIS 1508, 24

EIR 20804 (10th Cir 1994) 2%

Palumbo « Waste Technologies Industries, 37 fo 3d
1495. 1994 US App LEXIS 29355 (4th Cir, 1994) 2%

Vil

TABLE OF AUTHORITIES — Continued

Page
Pennsylvania v. Delaware Valley Citizens Council,
M7S U5; SOG CERO ci eae, ey SP Mreeperr 25
Razore v. Tulalip Tribes of Washington, 66 '.3d 236
(Mh Cir. 1995) ....... ae res a ee

Ruckelshaus v Sterra Club, 463 US. 680 (1983)
4, &. 12, 19, 20, 25

Sterra Club. SCM Corp., Civ-82-1076T (W.D. NY.

19KS) ; ae eee . 28
Sterra Club v Shell Out Co., 817 F.2d 1169 (Sth Cir.

197) 4:52 Sa ies et. oe
Smith vo Brady, 972 &2d 1095 (9th Cir 1992) re
Stuvers v. Prerce, 71 &.3d 732 (9th Cir. 1995) ..4

Tennessee Valley Authority v. Hill, 437 US. 183
(197%) , : 1, 24

Truck Components, Inc. v. Beatrice Co., 1996 US
App. LEXIS 9946 (ND. Tl, July 15, 1996) . 28

United States Steel v United States, 385 & Supp. 346
(WI Pa 1974) 1

Villave of Kaktovik v Watt. 689 F.2d 222 (D.C. Cur
19% 2) : ne a ae

WG ex rel DG wv Senatore, 16 &.3d 60 (2d Car.

1994) hie
Washineton Trout. Scab Rock Feeders, 823 b. Supp

S19 (f. D. Wash 1993) ; shin ae
STATUTES
SUS. § 70) . ee.

1S U.S.C. § 2618(d)

i)
te

Vill

TABLE OF AUTHORITIES

16 USC. § 1540

7 USC. §& SOS

1) USC. § 12700d)
441 SC 6 1356¢d)
42 USC. § 198%

42 USC. § 2000e-S(k)
42 USC. § 6972(e)
42 USC. § 7604(d)
49 USC. &§ 601210b)
91 Stat. 1566

bOl Stat

Act of December 27, 1977,

Act of February 4, 1987, Pub

Licistative History

122 Cong Rec ¥300 (1976)

H. Rep. No. 218, 9Sth Cong.,
H Rep No 412, 93d Cong.,
S. Rep. No. 1196, 91st Cong.,

S. Rep. No 414, 92nd Cong., Ist Sess

Pub |. No

lL. No

Ist Sess
Ist Sess

2d Sess

Continued

95-217

100-4

QQ (1977)

19

6

& |

(1974)
39 (1970)

(1971)

Paye

TABLE OF AUTHORITIES Continued

Paye
S Rep. No. 698, 94th Cony , 2nd Sess 9 (1976) ZI
+ Kep No S52. 94th Cony Jnd Sess. (1976)
reprinted in L976 US Code Cong & Adm New
4673 |X
S. Rep. Noo 128, 9Sth Cony. Pst Sess) 8% (1977) 23
S Rep. No. Il, 99th Cony . Ist Sess. 63 C1985) 24
> Kep No 99-50 CL9OSS) 1 |
Misch ib Anbots
I> Hodas, knforcement Inca lrranvular bederal Sys
tem, S2 Md Lt. Res 1 44
George Hayer, Lobbyists bor Industry and Oppo
nents, a Showdown ts in the Au, 48 Cony Qo Wkly
Rep. 145 (1990) 24

Ross Mckarlane and Lorn Terry, Crttcen Sutts
Impacts on Permitins and Agency Enforcement
Nat. Resources & bknvir 20, 25 1 |

SEE EY

PO eR seer mere x e es VETTE pres rrter

I. INTRODUCTION

In its Petition for Wz*t ef Certiorari, Pacific Lumber
Company asks this Court te «Jopt a rule that plaintiffs in
citizen suits to enforce the =ndangered Species Act (and a
host of similar federal environmental laws) are liable for
defendants’ attorneys’ fees whenever a defendant obtains a
favorable ruling on a previously undecided issue, which
defendant then argues “furthers the purposes” of the statute.
(Petition, pp. 1, 22.) Such a rule would chill citizen suits out
of existence. This result is clearly inconsistent with the intent
of Congress that citizen-plaintiffs are the “chosen instrument
of Congress to vindicate ‘a policy that Congress considered of
the highest priority.” ” Christianburg Garment Co. v. EEOC,
434 U.S. 412, 416 (1978), quoting Newman v. Piggie Park
Enterprises, 390 U.S. 400, 402 (1968). Similar to the civil
rights statutes referenced in this Court’s opinion in Christian-
burg Garment Co. v. EEOC, in enacting the Endangered
Species Act, “Congress intended endangered species to be
afforded the highest of priorities.” Tennessee “alley Authority
v. Hill, 437 U.S. 153, 174 (1978).

Pacific Lumber’s Petition for Writ of Certiorari does not
meet any of the criteria established by this Court in Supreme
Court Rule 10 for granting certiorari. The decision of the
Ninth Circuit Court of Appeal is not in conflict with the
decision of any other United States court of appeal on the
question presented by the petition. The Court of Appeal’s
decision does not “so far depart from the accepted and usual
course of judicial proceedings .. . as to call for the exercise
of this Court’s supervisory power.” (Rule 10(a).)

Nor does the decision below “decide an important ques-
tion of federal law that has not been, but should be, settled by
this Court” or decide “an important question in a way that
conflicts with relevant decisions of this Court” (Rule 10(c).)

Pacific Lumber argues that “[u]ncertainty and conflict
exists among the circuits and within the lower courts as to
whether — outside of the civil rights arena — the Christianburg
dual standard or the Fogerty rule of parity governs the award

5

of attorneys’ fees to a prevailing defendant under a neutrally-
worded fee-shifting statute.” (Petition, p. 3.) In fact, this is
not true. Pacific Lumber has not cited, and respondent has
been unable to find, any federal district court or court of
appeal decision that conflicts with the decision of the Ninth
Circuit Court of Appeals in this case. On the contrary, the
decision below is entirely consistent with numerous decisions
of this Court and every decision by the Courts of Appeal and
district courts which have applied the citizen suit fee shifting
provisions of the ESA and similar federal statutes.

This Court should not expend its resources deciding the
question presented here until it has been addressed by addi-
tional circuit courts of appeal, because other circuits may well
add value to the analysis of the issue that will not be available
to this Court at this time. Indeed, this Court recently denied
certiorari in a petition presenting the identical issue under the
Clean Water Act and the Comprehensive Environmental
Response, Compensation and Liability Act. Hecla Mining
Company v. Washington Wilderness Coalition, 119 S.Ct. 1140
(March 8, 1999).

ll. STATEMENT OF THE CASE

Respondent Environmental Protection Information Cen-
ter (“EPIC”) is a California non-profit corporation dedicated
to protecting wilderness, natural communities and biodiver-
sity. In this case EPIC brought two claims under section 7 of
the Endangered Species Act (“ESA”) (16 U.S.C. § 1536) and
one claim under section 9 of the ESA. (16 U.S.C. § 1538.)
The first section 7 claim alleged that the U.S. Fish and
Wildlife Service (“Service”) engaged in “agency action”
requiring formal consultation and preparation of a biological
opinion as a result of opinions it provided to Pacific Lumber
that the California Department of Forestry and Fire Protection
(“CDF”) relied upon to approve Pacific Lumber’s logging
plans. The first section 7 claim related to Pacific Lumber’s
plan to conduct salvage or “exemption” logging in virgin old-
growth redwood forests occupied by the marbled murrelet, a

Sears ee mat Ree eatin eran man aa EO NC TEA

3

“threatened” seabird. The second section 7 claim related to
eight timber harvest plans approved by CDF located in forests
occupied by “threatened” spotted owls. EPIC’s ESA § 9 claim
alleged that Pacific Lumber’s exemption logging plans would
“take” marbled murrelet in violation of section 9 of the ESA.

In September 1995, EPIC filed the action and obtained a
preliminary injunction on its first section 7 claim. The Ninth
Circuit reversed the preliminary injunction in June 1996.
Marbled Murrelet v. Babbitt, 83 F.3d 1068 (9th Cir. 1996)
(“Marbled Murrelet I~ at App. G).!

In March 1996, EPIC amended its complaint to allege its
second section 7 claim and in April 1996 obtained a prelimi-
nary injunction on that ciaim. In February 1997, the Ninth
Circuit reversed the second preliminary injunction. Marbled
Murrelet v. Babbitt, 111 F.3d 1447 (9th Cir. 1997) (“Marbled
Murrelet Il”).

These decisions by the Ninth Circuit affirmed the Ser-
vice’s existing, and long-standing, interpretation of the Act
that section 7 does not require “formal consultation” every
time a project proponent requests technical advice to avoid
“take” of listed species.

As the case progressed, EPIC’s ESA § 9 claim succeeded
in causing Pacific Lumber to permanently abandon its plan to
use helicopters to conduct the exemption logging. On Septem-
ber 1, 1995, Pacific Lumber notified CDF of its intent to
commence operations and use helicopters after the breeding
season in the old growth redwood areas occupied by murre-
lets. (Resp. App. J.) On March 8, 1996 the California Depart-
ment of Fish and Game wrote to CDF that “helicopter yarding
activities will likely disturb or damage known sites of threat-
ened or endangered species” in violation of Forest Practice
Rule 1038(b)(7) (Resp. App. K.) On March 22, 1996 U. S.
Fish and Wildlife Service biologist Ken Hoffman testified in
deposition that helicopter yarding in Pacific Lumber’s old

' “App.” refers to Petitioner's appendix. “Resp. App.” refers to
Respondent's appendix submitted herewith.

4

yrowth redwood forests would cause a “take” of murrelets in
violation of section 9 of the ESA. (Resp. App. L.) Then on
July 9, 1996 Pacific Lumber’s counsel first informed plain-
nffs (during the deposition of Pacific Lumber biologist Sal
Chinnici) that, in order to remove the issue from this litiga-
tion, Pacific Lumber would not use helicopters in its exemp

tion logging plans. (Resp) App. M))

Thus even though EPIC elected not to seek its attorneys’
fees am this case, EPIC could have done so on these facts. A
fee award as “appropriate” when a plaintiff in an BSA citizen
uit has at least partially prevatled and substantially contrib
uted to the goals of the Act. Ruckelshaus vo Sterra, 463 US
640. 642 684 (1983) (applying Clean Water Act fee shifting
provision), Carson Truckee Water Conserv, Dist: vo Sec’y of
the Intertor, 74% F.2d $23 (9th Cir, 19%4) Here, EPIC pre
vatled because this lawsuit was a “catalyst” for Pacific Lum
bers decision to abandon its helicopter logging plans, which
afforded EPIC some of the reheft at sought) Stivers vo Prerce,
1 b 3d 732, 751-752 (9th Cir 1995) EPIC’s success also
uuibstantially contributed to the ESA's yoal of preventing
take oof marbled murrelets that would have occurred tf

Pacitic Lumber had used helicopters

After the District Court dissolved the preliminary mnyunc

Hon avast the exemption harvests based on section 7 of the
PSA and after Pacific Lumber ayreed not to use helicopters
tor those harvests, EPIC sought a temporary restraining order
ayainst the exemption harvests on ESA §& 9 grounds, arguing
that Pacific Lumber’s tractor logging would likely cause
take” of marbled murrelets. (Resp App. N.) EPIC asserted
that the removal of standing trees in areas occupied by murre
lets (he. allof the old growth redwood forests remaining on
Pacitic Lumber’s land) would “harm” the murrelet (as defined
at SO C RR & 17.3). and that standing trees would be
removed either by Pacific Lumber obtaining the approval of
the Service to do so or through the madvertent, but routine
damage to standing trees that occurs when tractors are used to
remove down logs (Resp. App N)

RET CRORE TO nN Teron Te Ee a ee

5

The District Court denied the motion. With respect to
removing standing trees, the Court relied on Pacific Lumber
resource manager Thomas Herman’s declaration under pen-
alty of perjury in which Pacific Lumber promised to imple-
ment a series of murrelet protection measures designed by the
Service and enforced by the state agencies, which included a
commitment not to remove standing trees without agency
approval. (Resp. App. N. p. 45.) Regarding the destruction of
Standing trees from removing down logs, the District Court
round that EPIC’s “evidence . . consists of conditional facts
that are dependent upon other conditional facts.” (Resp. App
N, S1:17-19.) Significantly, however, the Court noted that
“EPIC’s arguments and their declarations have been set forth
in good faith and in a professional manner.” (Resp. App. N,
$1:21-24.)

Then EPIC’s prediction that Pacific Lumber’s removal of
“down” logs would destroy standing trees (and thereby
“harm” murrelets) came shockingly true in the first week of
Pacific Lumber’s operations. CDF issued a Notice of Viola
tion charging Pacific Lumber with violating Forest Practice
Rule 1038(b)(7), which provides that “no known sites of rare.
threatened or endangered plants or animals will be disturbed
threatened or damaged.” (Resp. App. O.) When the District
Court convened a hearing on October 22, 1996 to Investipate
the matter further, CDF inspectors Hugh Scanlon and John
Marshall testified that Pacific Lumber violated Rule
103%(b)(7) by knocking over and damaging a number. of
standing trees that reached into the forest canopy in the
course of removing down logs (Resp. App. P, pp. 19-23,

/ 91-93). Nevertheless, the District Court again demed EPIC’s
TRO request

Pacific Lumber’s fee motion in the District Court sought
to recover its fees for its defense of both EPIC’s ESA § 7 and
3 9 claims. Regarding, the Section 7 claims, Pacific Lumber
conceded they were not frivolous and raised “an issue of first

impression.” (App. C, p. 25a, no 12.) Therefore, the Ninth

6

Circuit, in the opinion below, only evaluated Pacific Lum-
ber’s claim for fees for its defense of the section 9 claim
under the Christianburg standard. (App. A, P. 9a.) Pacific
Lumber also conceded that its defense of the section 9 claims
did not contribute substantially to the goals of the ESA.
(Resp. App. Q, 12:10-15.)

ii. ARGUMENT

A. THIS COURT SHOULD DENY THE PETITION
FOR CERTIORARI BECAUSE THE DISTRICT
COURT LACKED SUBJECT MATTER JURIS-
DICTION OVER EPIC’S CLAIMS UNDER SEC-
TION 7 OF THE ENDANGERED SPECIES ACT.

Pacific Lumber’s fee motion and the question presented
in its Petition are based solely on the attorney fee provision of
the ESA. Since the ESA does not confer subject’ matter
jurisdiction over EPIC’s section 7 claims, the court does not
have jurisdiction to award fees attributable to those claims.

1. The District Court Held That It Lacked Sub-
ject Matter Jurisdiction Over Plaintiffs’ ESA
§ 7 Claims.

The Ninth Circuit held that neither the written advice the
Service provided to Pacific Lumber regarding its exemption
logging plans, nor the Service's concurrence that was essen-
tial to state approval of the logging plans constituted “agency
action” under section 7. Marbled Murrelet I, supra, App. G at
&24-83a: Marbled Murrelet Il, supra, App. E at 44a-45a. In
light of the Ninth Circuit's opinions, the District Court
granted the Service's and Pacific Lumber’s motions to dis-
miss under Rule 12(b)(1), stating that the absence of agency
action “compels the conclusion that the court lacks subject-
matter jurisdiction over Plaintiffs’ claims.” (App. D, p. 41a,
n. 6.)

EE er ee NE SN EDN ee EC een ERR,

7

2. The ESA Does Not Confer Jurisdiction to
Award Attorney Fees Where There Is No
Jurisdiction Over the Underlying Claim.

The attorney fee provision of the ESA permits awards of
fees and costs, whenever appropriate, in “any suit brought
pursuant to” the ESA citizen suit provision. 16 U.S.C
§ 1540(g)(4). Here, respondent EPIC was unable to state a
claim for federal question jurisdiction under section 7 of the
ESA. In analogous cases where subject matter jurisdiction 1s
lacking under a federal statute providing for awards of attorney
fees and costs to a prevailing party, the Ninth Circuit and other
circuit courts have held that the court has no jurisdiction to
award attorney fees. See, e.g.. Branson v. Nott, 62 F.3d 287.
293 (9th Cir. 1994) (vacating award of attorney fees to prevail-
ing defendant under 42 U.S.C. § 1988 for lack of jurisdiction):
Smith v. Brady, 972 F.2d 1095, 1097 (9th Cir. 1992) (where no
jurisdiction existed under Internal Revenue Code. attorney tees
could not be awarded pursuant to the code); Keene Corp. 4
Cass, 908 F.2d 293, 298 (8th Cir. 1990) (civil rights); Amurts ¥.
Amoco, Inc., 53 F.3d 690, 692 (Sth Cir. 1995) (vacating award
to defendant of over $600,000 in fees and costs for lack of
federal jurisdiction); WG. ex rel. D.G. v. Senatore, 18 F 3d 60,
64 (2d Cir. 1994) (Disabilities Act) (concluding that “fee
shifting provisions cannot themselves confer subject matter
jurisdiction’), compare Latch v. United States, 842 F.2d 1031
(9th Cir. 1988) (vacating award of fees under Internal Revenue
Code for lack of subject matter jurtsdiction)

As a general rule, if a district court has wrongfully

exercised subject matter jurisdiction over a dispute,

the appellate court must vacate the district court's

decision, including any award of attorney's fees
Id. at 1033 (citations omitted).2 Here, the District) Court
likewise lacked jurisdiction over EPIC’s ESA § 7 claims.
Therefore, this Court should deny the petition for certiorari

2 Accord, Greater Detroit Resource Recovery Authority v. EPA, 916
F.2d 317, 320 (6th Cir. 1990) (Under the Equal Access to Justice Act

8

3. Since the District Court Lacked Jurisdiction
Over EPIC’s ESA § 7 Claims, Pacific Lumber
Did Not Prevail On The Merits.

Even if the ESA fee provision provided an independent
grant of jurisdiction to award fees to Pacific Lumber in the
absence of subject matter jurisdiction, such an award 15
Improper here because the District Court's lack of subject
matter jurisdiction means that Pacific Lumber 1s not a “pre-
vailing party” for purposes of a fee award. Branson v. Nott,
supra, 62 F.3d at 293, citing, inter alia, Keene, 908 F.2d at
298 (“Where a complaint has been dismissed for lack of
subject matter jurisdiction, the ‘defendant has not “prevailed”
over the plaintiff on any issue central to the merits of the
litigation.’ ") Since it did not “prevail,” Pacific Lumber can-
not recover its attorneys’ fees. Ruckelshaus v. Sterra Club,

supra

B. THE ENDANGERED SPECIES ACT DOES NOT
AUTHORIZE PACIFIC LUMBER’S FEE
MOTION OR ITS PETITION FOR CER-
TIORARI.

Pacific Lumber argues that it 1s entitled to fees because it
prevailed on its appeals of the two preliminary injunction
orders entered on EPIC’s ESA § 7 claims, and the appellate
rulings allegedly “furthered the purposes of the statute” (Peti-
tron at 2.)° There is an additional threshold legal reason that
this Court should not grant certiorar!

t'nless the statute under which a party seeks attorney s fees contains an
independent grant of jurisdiction, an appellate Court must vacate an award
t attorney's fees af the district court did not have subject matter
uurisdiction over the hugation’). Friends of Boundary Waters Wilderness \
Thomas. $3 F.3d 881 (Sth Cir, 1995). Finn United States, 556 & 2d 606
sth Cir 19%). Clifton .. Heckler, 755 & 2d 113% (Sth Cir. 19%5)

Pacitic Lumber waived any argument that its defense of EPIC
ESA $9 claims “contributed substantially” to the goals of the ESA (Resp

HE ee

9

EPIC’s ESA § 7 claims were not, and could nut have
been, brought under the ESA citizen suit provision (at 16
U.S.C. § 1540(g)(1)). This Court has held that the citizen suit
provision of the Act does not authorize ESA § 7 claims
against the Secretary of the Interior, which must be brought
under the Administrative Procedures Act (5 U.S.C. § 701 er
seq.). Bennett v. Spear, 520 U.S. 154, 172-174 (1997). Since
the ESA fee shifting provision at 16 U.S.C. § 1540(g)(4)
applies, by its terms, only to suits under § 1540(g)(1), and
EPIC’s ESA § 7 claims were not brought under that section,
there 1s no statutory basis for Pacific Lumber’s claim for
attorneys’ fees for its defense of the ESA § 7 claims. See also,
Earth Island Institute v. Albright, 147 F.3d 1352, 1357 (1998)
(reversing an award of attorneys’ fees to an environmental
plaintiff in an ESA case, citing the holding in Bennett v. Spear
that 16 U.S.C. § 1540(g)(1) does not authorize citizen suits
contesting “the Secretary’s maladministration of the Act”).
Since there is no statutory authority for Pacific Lumber’s fee
motion, this Court should not consider the question presented
in the petition for certiorari.

C. PACIFIC LUMBER’S PROPOSED STANDARD
FOR AWARDING FEES UNDER THE ENDAN-
GERED SPECIES ACT TO PREVAILING
DEFENDANTS IS UNPRECEDENTED AND
INCORRECT.

The ESA authorizes courts to award attorney fees “to any
party, Whenever the court determines such an award is appro-
priate.” 16 U.S.C. § 1540(g)(4). In citizen suits under similar
federal environmental laws. the Ninth Circuit. drawing
directly from this Court’s decision in Christianburg Garment
Co. v. EEOC, supra, awards fees to prevailing defendants
only if the defendants establish that the plaintiff's claim was
“trivolous, unreasonable, or without foundation.” Razore 4
lulalip Tribes of Washington, 66 F.3d 236, 240 (9th Cir. 1998

(applying similar fee provisions in the Clean Water Act (33

10

U.S.C. § 1356(d)) and the Resource Conservation and Recov-
ery Act (“RCRA”) (42 U.S.C. § 6972(¢)). See also Hughes vy.
Rowe, 449 US. 5, 14 (1980) (applying same standard under
42 U.S.C. § 1988). This standard is not unique to the Ninth
Circuit. See infra Part D (listing cases). This standard, more-
over, is consistent with the plain language and Congressional
objectives of the ESA.

Pacific Lumber’s petition, without citing any disagree-
ment among the circuits of the federal court of appeals, or any
conflict with previous opinions of this Court, asks the Court
to consider adopting a new standard. Pacific Lumber argues
that because the fee shifting provision of the ESA (and other
similar statutes) do not provide any guidance to the courts as
to when fee shifting is “appropriate.” plaintiffs and defen-
dants must be treated equally. Under this view, the absence of
statutory guidance would mean that courts would have unlim-
ited discretion, with no judicially created standards to con-
strain the exercise of that discretion. In addition, Pacific
Lumber’s proposed standard would allow courts to award fees
against meritorious but non-prevailing citizen plaintiffs. Such
a standard would undermine the very reason that Congress
authorized citizen suits in the ESA and other federal environ-
mental protection statutes — to encourage citizen enforcement

of those Acts.

+ Although Pacific Lumber refers ominously to an increase in the
number of citizen enforcement actions filed since the ESA was adopted in
1972, Pacific Lumber fails to disclose what percentage have been resolved
against: plainuffs. An increase in the number of meritorious citizen
enforcement actions provides benefits Congress intended. See D. Hodas,
Enforcement of Environmental Law In a Triangular Federal System: Can
Three Not Be a Crowd When Enforcement Authority ls Shared by the
United States, the States, and Their Citizens? 54 Md. L. Rev. 1552 (1995)
(only extensive use of citizen suits as private attorneys general can
safeguard the enforcement system from collapse and prevent states from
using lax environmental enforcement as an economic development tool.”).
Congress has recently acknowledged: “Citizen suits are a proven
enforcement tool. They operate as Congress intended — to both spur and

——————————eeEeEeEEEEE————EE

1. Petitioner’s Assertion That the ESA Fee Pro-
vision Requires Treating Plaintiffs and Defen-
dants Equally Is Incorrect.

Pacific Lumber argues that because the ESA fee shifting
provision does not distinguish between plaintiffs and defen-
dants, judicial decisions which place limits on the Court's
exercise of discretion by restricting fee awards against plain-
liffs to cases that are frivolous or unreasonable, contradict the
Statute. But courts routinely develop rules that bound the
exercise of statutorily authorized discretion. See Independent
Federation of Flight Attendants v. Zipes, 491 U.S. 754, 758
(1989) (“Although the text of the provision does not specify
any limits upon the district courts’ discretion to allow. or
disallow fees, ina system of laws discretion is rarely without
limits.”). In fact, that ts what this Court did in Christianburg,
supra, with respect to Tithe VIL. And in this case, Congress
specifically included the phrase “when appropriate” in the
Statutory language to guide the exercise of discretion in
awarding fees.> Pacific Lumber’s “plain meaning” analysis
overlooks both this statutory guide to judicial discretion and

supplement . government enforcement actions. They have deterred
violators and achieved significant compliance gains.” S. Rep. No. 99-50, at
28 (1985). Even the article cited by Pacific Lumber acknowledges that
“[plrivate enforcement can play a critical role in ensuring compliance with
these statutes. [t can spur appropriate governmental action and can ensure
that the laws are enforced against significant violators that may otherwise
evade detection.” Ross McFarlane and Lori Terry, Citizen Suits: Impacts on
Permitting and Agency Enforcement, Nat. Resources & Env’t 20, 25. More
enforcement means more compliance with the ESA and greater
environmental protection. The fact that petitioners would preter less
enforcement of the ESA is not a reason for granting a writ of certiorari.

* In fact, to remove limits on judicial discretion would promote
inconsistent and ad hoc standards of the type that Pacific Lumber
purportedly seeks to avoid.

this Court's historic role in guiding the exercise of discretion

to award fees

2. The Term “When Appropriate” Should Be
Interpreted In Light of the Purposes of the
Endangered Species Act.

As this Court recognized in Ruckelshaus vo Sterra Club,
463 US. 680, 643 (19%3) the term “when appropriate” does
not conclusively explain when fees should be awarded. In the
context of statutes that cast citizen plaintiffs in the role ot
“private attorneys general.” this Court: has already deter-
mined. in Christianburg Garment Co. vo EEOC, supra, that tt
iS “appropriate” to impose a more stringent standard on pre
vailing defendants who seek fees, even when the statutory
language does not on its face distinguish between prevailing
parties, because such a rule furthers the purposes of the
statute. The Ninth Circuit and the district: court: correctly
applied this so-called “dual” standard (see Fogerty v. Fantasy,
Inc.. 510 U.S. 517, 520 (1994)) in denying Pacific Lumber’s
request for fees in this case

The rationale for treating prevailing plaintiffs and = pre-
vailing defendants differently for the purpose of awarding
fees in citizen suits as clearly explatned in Christranburg
Christianburg interpreted the fee provision in Tithe VIL, which
contains language authorizing courts to award fees to the
“prevailing party’® Like Pacitic Lumber in this case, the
prevailing defendant in Christianburg argued that the “plain
meaning” of Tithe VID's tee provision did not allow courts to
treat prevailing plaintiffs and prevailing defendants differ-
ently for the purpose of awarding fees. The Court reyected
that argument outright: “[T]he permissive and discretionary

languayve of the statute does not even invite, let alone require,

© Section 706(k) provide (TJhe court, in ats discretion, may allow
the prevailing party a reasonable attorney's fee (including expert fees)
as part of the costs[.}" 42 USC § 2000 S(k). The fee provisions of the
PSA as virtually identical

»

eee ne

13

such a mechanical construction.” 434 U.S. at 41%. Rather than
treating the parties similarly, the Christtanburg court identi-
fied two “equitable considerations” that compelled a more
lenient fee standard for prevailing civil rights plaintiffs, and a
more difficult standard for prevailing defendants

The first consideration 1s that the “plaintiff ts the chosen
instrument of Congress to vindicate “a policy that Congress
considered of the highest priority.” ” 434 US. at 41% (quoting
Newman v. Piggte Park Enterprises, Inc, 390 US. 4F0
(196%)). The second consideration is that when a district court
awards counsel fees to a prevailing plaintiff, tos awarding
them against a violator of federal law. /d. To award tees
against a good faith, but non-prevailing plaintiff, would drs-
courage private enforcement and undermine the very purpose
of citizen enforcement provisions. See 434 US. at 422
(assessing fees against meritorious but non-prevailing plain-
uff “would undercut the efforts of Congress to promote the
vigorous enforcement of the provisions of Tithe VII") Based
on these policy considerations, and backed by legislative
history indicating that Congress intended to encourage citizen
enforcement and deter frivolous suits, the Court in Christian-
burg held that lower courts could award fees to a prevailing
Tithe VII defendant only upon finding that the plaintiff's
action was “frivolous, unreasonable, or without foundation,
even though not brought in subjective bad faith.” 434 U.S. at
421.

This “dual” standard was reaffirmed in Fogerty v. Fan-
tasy, Inc., supra. Fogerty involved a fee decision governed by
§ SOS of the Copyright Act, which contains fee-shifting lan
guage similar to the civil rights statutes. See 17 U.S.C. § S05
Unlike the instant case, the circuits at the time of Foverty
were divided over whether a prevailing defendant seeking
fees under the Copyright Act should be required to establish
that the plainuff’s infringement claim was frivolous or vex
atious. SIO U.S. at S21 n.&. After reviewing the ygoals and
policies of the Copyright Act, this Court declined to apply the
“dual” standard, because the “equitable considerations” of the

Pe ee ee a ee

14

Copyright Act are not the same as the civil rights statutes.
Nor did this Court find Congressional intent in the Copyright
Act to encourage plaintiffs in particular to bring meritorious
infringement claims. Rather, this Court found the Copyright
Act's goal of “stimulat{ing] artistic creativity for the general
public good,” is furthered by vigorous claims and defenses.
Fogerty, S10 U.S. at 527 (“defendants who seek to advance a
variety of meritorious copyright defenses should be encour-
aged to litigate them to the same extent that plaintiffs are
encouraged to litigate meritorious claims of infringement.”).

The Court, however, took the opportunity to expressly
reaffirm that the “dual” standard is appropriate under other
statutes, including public interest statutes with fee shifting
language virtually identical to the fee shifting language of the
Copyright Act. Fogerty, supra, 510 U.S. at §22-23.

Unlike the Copyright Act, both of the “equitable consid-
erations” that persuaded the Court to adopt a dual standard in
Christianburg are present in ESA citizen enforcement actions.
The citizen suit provisions in the ESA, like the citizen suit
provisions in the civil rights statutes, were enacted to encour-
age citizen participation in enforcing the important Congres-
sional objective of conserving endangered species. In
addition, when a court awards fees to a prevailing plaintiff in
an environmental citizen suit, as noted in Christianburg,
supra, it is awarding fees against a violator of federal law.

Citizen suits provide a secondary benefit that should be
included in the analysis of equitable considerations. Citizen
suits increase enforcement actions, thereby insuring more
uniform compliance, so that those who comply with the ESA
are not at a competitive disadvantage with those who do not
comply. Citizen enforcement “can provide the states, through
dedicated and persistent litigation, with the level playing field
that the federal government cannot provide on its own.” D.
Hodas, Enforcement In a Triangular Federal System, supra,

52 Md. L. Rev. at 1574-1578.

The second equitable factor in Christianburg also applies
when interpreting the phrase “whenever . . . appropriate” in

15

the ESA. When plaintiffs prevail, it means that the fees that
are awarded will be paid by an entity that has been found to
be in violation of the statute. As in Christianburg, this factor
supports treating prevailing plaintiffs differently than prevail-
ing defendants. Unlike imposing fees on violators of the law,
awarding fees against meritorious but non-prevailing plain-
tiffs would punish entities for having invested years of time
and effort in performing a civic duty (enforcement of the law)
with no expectation of monetary compensation.

This Court's decision in Bennett v. Spear does not sup-
port Pacific Lumber’s argument that plaintiffs and defendants
must be treated equally for all purposes under the ESA. In
fact, in Bennett this Court followed the principles stated in
Fogerty in the context of the ESA, finding that the “obvious
purpose” of the ESA citizen suit provision “is to encourage
enforcement by so-called private attorneys general.” Bennett,
117 S.Ct. at 1162. This finding by the Court brings the ESA
squarely within the rationale of Christianburg. In both the
ESA and the Civil Rights Act, Congress wanted to encourage
plaintiffs, acting as private attorneys general, to sue. There-
fore, the dual standard should apply to the ESA.

Like virtually all of the cases cited by Pacific Lumber,
Bennett involves plaintiffs under the Act. Specifically, the
question decided in Bennett was whether plaintiffs with
purely economic interests have standing to sue under the
citizens’ suit provision of the ESA. The question of whether
certain plaintiffs have standing has no bearing on the standard
defendants must meet to obtain fees under the ESA.’ By
broadening the category of citizens who can sue under the

’ As the Supreme Court noted in Bennett, to determine standing, “we
look not to the terms of the ESA’s ciuzen-suit provision, but to the
substantive provisions of the ESA, the alleged violations of which serve as
the gravamen of the complaint.” 117 S.Ct. at 1167. Thus, standing was
determined by examining the “zone of interests” which the statute protects,
not by the term “person” in the statute.

’
*
*
r

lo

Act, the Supreme Court in Bennert plainly intended to encour
ave citizens’ suttys not deter them. To adopt the standard
proposed by Pacific Lumber would do exactly that In short,
Bennett v. Spear does not endorse an “evenhanded” standard
tor awarding fees.*

Pacttic Lumber also relies on Carson-Truckee Water
Conserv. Dist. vo Sec'y of the Intertor, 748 F.2d 523 (9th Cit
O84), which the Ninth Circuit overruled ino the opinion
below. In Carson- Truckee, a water district sued the Depart
ment of the Intertor to force it to release water mmpounded to
recover endangered fish species. The Pyramid Lake Patute
lribe intervened as a defendant to oppose the release of more
water, The intervenor and the Interior Department: suc
cesstully defended the suit by relying on the department's
obligations under section 74a ht) of the ESA to conserve
listed fish species. The plamtutt did not make any clam for
relief under the FSA, instead the intervenor made affirmative
claums under the ESA to prevent additional water discharges
Vso, the intervenor participated in the litigation voluntarily,
and was not alleged to be in violation of the statute. There
fore, the intervenor was more ke an ESA plaintiff, because it
was the intervenor who plead claims tor relief under the ESA

This factual contest of the case is not apparent from
reading the decision denying attorneys’ fees reported at Car
son- Truckee Water Conserv, Dist. vo See’y of the Intertor, 748
2d $238. buts apparent from the Ninth Circuit's decision on
the merits reported at Carson Truckee Water Conserv, Dist. y
Sec’y of the Intertor, 741 Fld 257 (1984). Given this: pro
cedural context, the Court's treatment of the intervenor like

in ESA plamtutt for purposes of a fee award ts consistent with

Phos Court's recoynition in Bennert. that an cconomically motivated
plamntttin bSA litigation “may recover then litigation costs” under 16
USC g 18400904) (520 US at Lol) says nothing about the standard that
applies to such a party. Both Chrostianburg and the opinion below

ontemplate thatan economically motivated defendant “may recover” tees
where the plainutt’s case as “tivolous, unreasonable or without

foundation

17

the Ninth Circuit's decisions in Razore v. Tulalip Tribes and
the opinion below.

Carson-Truckee is not controlling, or even persuasive,
for several more reasons. Carson-Truckee was an ESA § 7
case. As discussed above, the ESA fee provision at
§ 15400 2)(4), by its terms, only applies in citizen suits under
§ 15400201). In Bennett vo Spear this Court held that the
citizen suit provision of the Act does not authorize section 7
clamms against the Secretary of the Interior, which must be
brought under the APA. Therefore, there was no statutory
authority under the ESA for a fee award to the intervenor tn

Carson-Truckee.”

In the instant case, plaintiffs established that) Pacific
Lumber’s plan to use helicopters would “take” marbled mur-
relets and EPIC’s prediction that the removal of downed trees
would destroy standing trees in marbled murrelet habitat
came true as soon as Pacific Lumber began logging. To order
plaintiffs to pay defendants attorney fees under such circum
stances would not be “appropriate,” and would certainly deter
other citizens from bringing the sorts of enforcement actions
that Congress so clearly intended. Indeed, adopting the rule
proposed by Pacific Lumber would encourage all partially
successtul defendants to seek their attorneys’ fees, if for no

other reason than to sap the resources of their adversaries

3. The Evolution of Statutory Language In Fed-
eral Environmental Citizen Suit Provisions
Confirms That Congress Approves of the
Dual Standard For Fees In Citizen Suits.

Pacific Lumber argues that because the Pipeline Safety
\ct of 1992 and several other recent statutes explicitly bifur-
cate the fee standard for prevatling plaintiffs and prevailing

’ This wsue was ratsed in Carson-Truckee but the Ninth Circuit
declined to rule on ut. /d. 748 F.2d at 526

Is

defendants, 49 USC § 60L21Cb), the absence of similar
language im the BSA means by negative impheation that
Congress intended a single standard to be applied to both
parties under the ESA) (Pettuon at TS, n 19) The more
exploit bifurcation ino recent: leyislation, however, merely
indicates Congressional approval of the dual standard devel
oped by courts in interpreting the “whenever appropriate”

language of the ESA and other public interest statutes

The citizen suit and tee shifting provisions were added to
the Pipeline Safety Actin 1976. Congress acknowledged that
the purpose of the fee shifting provisions was to “insure
effective enforcement and compliance” with the Act. So Rep
No 852, 94th Cong , 2nd Sess (1976), reprinted in LUTOUS
Code Cony. & Adm News 4673. In imposing a more stringent
fee standard upon prevailing defendants, Congress spect
fically noted that this provision was consistent with United
Srates Steel vo United States, 385 & Supp 346 (WD Pa
1974)0 United States Steel, in turn, was a case interpreting
§ 7O6¢kK) of the civil rights statutes) Although § 706(kK), like
the provisions of the ESA, does not expressly identify a fee
standard for prevailing defendants, the United States Steel
court applied a “dual” standard based upon the same reason
ing later apphed by this Court in Christtanburg, and declined
to award fees to a prevailing defendant.'? By incorporating
the yudicially developed dual standard into the statutory Tan
guage of the later Pipeline Safety Act, Congress accepted,
rather than reyected, the dual standard approach to interpret
ing the “whenever appropriate” language found both in
civil rights statutes and in the federal environmental statutes
like the ESA

There ws further evidence that Congress has accepted the
dual standard approach to fee applications under federal envi

ronmental statutes. Congress has twice amended the Clean

Four years later this Court affirmed this type of fee analysis in
Christanbury Garment Co vo EROC, 434 US. 412 (1978)

——————————eaEEEeEeEeEE—————E——————w

19

Water Act (43 US © 8 1251 ef sed.) Since the “whenever

appropriate” language was adopted in the citizen suit provs
ston of the CWA. See Act of December 27, 1977. Pub 1. No
YS 217, OT Stat. 1566. Act of kebruary 4, 1987. Pub. L No
O04, TOL Stat. 7) At the trme of those amendments, courts
were applying the dual standard to fee awards, and the only
ease to have addressed the dual standard ino the specits
context of a CWA citizen suit had beld that the dual standards
Was appropriate im such cases) See, Consolidated Edison Co
\ Realty Investment Co, S24 4 Supp. 150, 183 (SDNY
POST) (defendants may be awarded fees under CAA only af
case Was “objectively trivolous ")) Ttas well established that

“Congress ts presumed to be aware of an administrative. of

Judicial interpretation of a statute and to adopt that Inferpreta
tion When it re-enacts a statute without change ° Lordlard 4
Pons, SANUS. STS, S80 (L978) Had Congress disagreed with
the yudicial interpretations berny applied to the “where appro
priate” language of the civil rights laws or the CWA, it could
have corrected that interpretation. Since at did not, the rat
iication: principle indicates that Congress agrees with the
dual standard developed by this Court, and ats application to a
broad range of public interest: statutes with common. fee

shifting language

4. The Legislative History of the ESA Supports
the Court’s Dual Standard Approach.

Pacific Lumber argues that “[t}he legislative history of
the fee shifting provision of the ESA reveals no congressional
Intent to favor plamtitfs over defendants” (Petition at 18.)
This as not true. The legislative history of federal environ
mental statutes, meluding the ESA, demonstrates that the
words “any party” an the fee-shitting provision were not
Intended to permit defendants to seek fees except Where the
uit as obrectively meritless or harassing. See Ruckelshaus,
supra, 408 US. at 693, n.13 (CAA legislative history mate
tals stating that courts could award costs and attorneys’ fees

against clazens that bring “frivolous and harassing actions” )

«
8
i
'

0

lndeed the PSA's legislative history conclusively demon
strates that Congress intended the dual standard to apply to
the BSA’S tee provision When Congress enacted the ESA
Giliven stunt provision, the House Report states that its fan
suage os parallel to that in the Marine Protection, Research
and Sanctuaries Act, and as “to be roterpreted in the same
fashion HE Rep No 412, 93d Cong, Ist Sess. 19 (1973)
Ihe Senate Committee Report on the MPRSA’ explicitly
adopted the dual standard for fee awards, and said that: pre
vautling plamtitts could receive fees im meritorrous suits, hile
prevailing defendants could only receive fees at the purpose
oft the suit was harassment (1972 US Code Cong & Admin
News 4234, 424950) This legislative history as cited: at
Villave of Kaktovek vo Watt, 689 F 2d 222, 225, 0.14 (DC. Cu
YS?) No cases of legistative history amply that defendants
aie entitled to receive statutory attorney fees mn an environ

mental sur ounder any other standard

Stotharhy, the legislative history of othe federal environ
mental statutes shows that Congress intended to use fee
awards to cncourage citizen suits, and limit awards to defen
dants to cases in whieb sums were found to be trivolous of
harassing the very standard that has been consistently
apphed by courts, including this Court, m cases where Con

eress has authornzed citizens to entotece public baws

Phe tust cavironmental statute to authorize citizens fo
suc and to recover tees and costs when they prevail was the
Clean An Act ot L970 CAA’) The CAA provides that tees
can be awarded to “any party, whenever the court determines
such award as appropriate 42 USC § 76040) This provi
ston has served as a model for every other environmental
Given suit proviston that has come after i As this Court
noted in Rucklestaus vo Sterra Club, supra, 463 US) at O82,
not. “the interpretation of ‘appropriate® in § 307¢f) controls
Construction oof the term oa [sixteen other environmental]
tatutes Jincluding the CWA" The Senate Report on the
CAA explains the legislative understanding of when an award

totees to a defendant might be “appropriate”

ri

Concern was expressed that some lawyers would
use section 304 to bring frivolous and harassing
actions. The Committee has added a key element in
providing that the courts may award costs of liuga-
tron, including reasonable attorney and expert wit-
ness fees, whenever the court determines that such
action isin the public interest. The court could thus
award costs of ligation to defendants where the
litigation was obviously frivolous of harassing. This
should have the effect of discouraging abuse of this
provision, While at the same time encouraging the
quality of the actions that will be brought

S Rep. No. 1196, Yist Cong, 2d Sess 36-39 (1970) (quoted
i Natural Resources Defense Council, Inc. v. Train, 510 F.2d
692, 725 (D.C. Cir. 1975)

The next environmental law adopted by Congress with a
fee shifting citizen suit provision was the Federal Water
Pollution Control Act Amendments of 1972 (later renamed
the Clean Water Act ((CWA")) The fee shifting language of
the CWA was virtuaily identical to that of the Clean Air Act
And as with the Clean Ai Act, Congress made clear that the
“whenever... appropriate” Linguage was intended to encour
ave citizen enforcers, and provide for awards to defendants
only when cases were “trivolous.” See So Rep. No. 414, 92nd
Cony., [st Sess. SE (1971) Co The court could thus award costs
of litigation to defendants where the Higation was obviously

frivolous or harassing ”)

In 1976 Congress enacted the Torre Substance Control
Act, and included a provision tor ciazen enforcement mod
cled atter similar provistons in the prior environmental stat
utes noted above. S. Rep. No 698, 94th Cong., 2nd Sess. 9
(1976) Tt provides that

Phe decision of the court in an action commenced

under subsection (a), or of the Supreme Court of the

Uinited States on review of such decision, may

include an award of costs of suit and reasonable

a)

fees for attorneys and expert witnesses tf the court

determines that such award is appropriate.
1S U.S.C. § 2618(d)

The legislative history of this proviston unequivocally
states that the standard for recovery of attorney tees by
defendant is different, and more stringent, than the standard

for plamtutts

In exceptional circumstances, fees and costs might
also be awarded to defendants where they must
‘defend against unreasonable, frivolous, meritless
or vexatious actions " United States Steel Corp
v. United States, 385 FF Supp. 346, 348 (W.D. Pa
1974). Where plaintiff's proceeding is brought in
good faith or on the advice of competent counsel,
fees and costs would ordinarily be denied to a
prevatling defendant. Richardson vo Hotel Corpora
tion of Amertca, 332 k Supp. 519 (B.D. La. 1971),
aff'd 468 F.2d 9ST (Sth Cir. 1972). The standard for
awarding fees and costs to a prevailing defendant ts
not the same as for a plaintiff because, if it were,
the risk, to the average citizen of bringing suit
under this section would be so great it would dis

courage such suits

122 Cong. Rec. 8300 (1976) (statement of Sen. Tunney)

~

In 1977 Congress enacted the Surface Mining Control
and Reclamation Act, which includes a citizen suit: provision
modeled after similar provisions in the Clean Air Act and

other environmental statutes. [It provides that

The court, in issuing any final order in any action
brought pursuant to subsection (a) of this section,
may award costs of litigation (including attorney
and expert witness fees) to any party, whenever the

court determines such award ts appropriate.

30 U.S.C. § 1270(d).

»3

fn both the House and Senate reports accompanying the
leyislation, Congress showed clear support for the dual stan
dard for attorney fee recovery, stating that prevatling deten
dants could only recover attorney fees where plaintiffs’ suit is

brought in “bad tanth.” The Senate Report states

The provision ts not meant to deter citizens from
bringing yood faith actions to insure the Act os
bemy enforced by the prospect of having to pay
their opponent's counsel fees should they lose
Under this section, a defendant can be awarded
reasonable fees from the cittcen only tf he can show
that the cittcen brought the action ino ‘bad faith

This as similar to other citizen suits) provistons
involving the award of attorney’s fees. [Emphasis

added]
S Rep. No. 128, 9Sth Cony. Ist Sess. 88 (1977). Similarly

the House Report States

Thus, tas the Committee's mtention that this provi
sion be construed consistently with the general prin
ciple that an award may be made to a defendant
only if the plaintiff has instituted the action solely
‘to harass or embarrass’ the defendant. United
States Steel Corp. v. United States, SV b2d 354,
364, (3d Cir. 1975). Tf the plaintiff is “motivated by
malice and vindictiveness’ then the court) may
award counsel fees to the prevailing defendant
Carrton v. Yeshiva University, 53S k2d 722 (2d Cut
1976). Thus, if the action is not brought ino bad
faith, such fees should not be allowed. See Wright
Stone Container Corp., 524 F.2d 1OS8 (8th Cir
1975); see also Richardson v. Hotel Corp. of Amer
tca, 332 KF. Supp. 519 (B.D. La. 1971), affirmed
without published opinion, 468 F.2d 951 (Sth Cit
1972). This standard will not deter plaintiffs from
seeking relief under these statutes, and yet wall
prevent their being used for clearly unwarranted

harassinent purposes. [Emphasis added]

H. Rep. No. 218, 95th Cong., Ist Sess. 90 (1977)

D4

the Comprehensive Environmental Response, Compen
sation and Laability Act of 1980 (CERCLA), adopted: in
IYS6, provides for an award of fees to “the prevailing of
uibstantially prevailing: party whenever the court determines
oh award as appropriate " The Senate Report accompanying
CERCLA states “As wath sumilar provistons in other environ
mental citizens suit laws, this wall encourage private enforce
ment by allowing such awards to private plaintiffs where the
Court determines the bringing of the action was in the public
rnterest. While discouraying frivolous suits by allowing costs
to be awarded to defendants in appropriate cases” So Rep
No Tl. 99th Cony dst Sess 68 CL9OBS)

Congress has extensive expenence in dratting citizen suit
legestatron. and as well aware of the dual standard that courts,
mcluding this Court, have applred in cases where citizens
have been authorzed to entoree public laws Congress thas

msistently expressed approval of that) standard Par trom
upporting Pacitic Lumber’s argument, the leyistative history
focnvirommental legishatton supports the Ninth Circuit's
ipplioation of the Chrostranbury standard to Pacitn Lumber ss

feo applreation aon thas case

S. he Court Has Previously Recognized That It
I, Appropriate to Apply Civil Rights Fee
Jurisprudence To Fee Issues In Environmen-

tal Cases.

Pocete Lumber argues that the Christranbure standard
hould not be applred to environmental cases because of the
unique Status of civil royvhts citizen suits” and there as “ne
parallel to th natronal Commitment to deal wath discriumina
bron (Pettthon at 19) The “differences” cated by Pacatn

lumber however, are mot differences at all

Indeed. this Court has prestousty recoynized that “Con
{ mtended endanyvered species to be attorded the hivhest

Hoprroritie lennessee Valley Authority vo Hell, supra, 437

ns piace aaa ai tala

25

tS. at 174. There can be no higher priority than the “high-
est” priority, thus Congress viewed endangered species pro-
tection on a par with ending racial discrimination,

This Court has also recogmized the similarities advanced
by environmental and civil rights statutes and the similarity in
methods used to achteve those obyectives: “Given the com-
mon purpose of both [Clean Air Act] § 304(d) and § 19%8 to
promote citizen enforcement of important federal policies, we
find no reason not to interpret both provisions governing
attorney's fees in the same manner.” Pennsylvanta v. Dela
ware Valley Cuncens Council, 478 U.S. 546, 560 (1986). See
also Hensley vo Eckerhart, 461 US. 424, 433 n7 (1982)
(interpreting fee provisions of section 1988 and of the 1964
Civil Rights Act similarly)

The legislative history of the citizen suit provision of the
Clean Aw Act, on which the ESA’ provisions are based,
establishes that Congress was influenced by the success of
citizen enforcement of the Civil Rights Act and used it as a
model tor the Clean Air Act citizen suit proviston

Our experience im areas of massive unlawful racial

discrimination tells us that however hard it

might try, government will never have the man-
power, the techniques, or the awareness necessary

to enforce the law for all) Private enforcement ot

those laws as the only way the mdividual can be

assured that rights cannot be violated wath impu

nity. Pollution control as another such area Tf we

are really serrous about controlling the quality of

our environment before it destroys the quality of

our lives, we must give the individual affected by,

or concerned about pollution in his life, the power

to stop them through the legal process
Statement of Attorney General Ramsey Clark in support of
ciuzen suit proviston of Clean Air Act of 1970, reprinted in
Vatural Resources Defense Council, Inc. v. Train, supra, S10
bod at 728 (DC Cur 1975) This Court recognized as early
as Ruckleshaus vo Sterra Club, supra, 463 US. at 682 m1

(1983), that “the interpretation of ‘appropriate’ ing 307(t) fot

26

the Clean Air Act] controls construction of the term in [six
teen other environmental statutes, including the Endangered
Species Act}.” In both civil rights and environmental cases,
Congress sought to enlist the aid of citizens in entorcing that
law and preventing violations. Pacific Lumber cites no
authority for the proposition that Congress was less concerned
with violations of environmental laws than it was with viola
trons of civil rights laws, and Respondent ts unaware of any
such authority

Pacific Lumber’s argument that environmental citizen
suits “support, not supplant” government agency enforcement
authority (Petition at 20) 1s beside the point. Congress meant to
encourage cizen enforcement in’ both cases, and the dual
standard adopted in) Christianburg is necessary to achieve
Congressional purposes in both cases.'! Perhaps more impot
tantly, since plaintiffs im environmental cizen suits do not
stand to gain financially trom acting as private attorneys gen-
eral, they will be unwilling to risk) prosecuting even) mer-
itortous cases if faced with the risk of paying a defendant's
fees when, as in this case, they succeed in same respects but
lose an issue of first impression im the Court of Appeal. The
interpretation urged by Pacific Lumber would “render| | the
citizen suit} statute useless, in all or nearly all instances, to
effect the very object it was originally enacted to accomplish.”
Keene Corp. v. United States, SO8 U.S. 200, 213-14 (1993).1°

1! Pacific Lumber points to this Court's discussion of the sixty day
notice requirement and “diligent prosecution” defenses of the Clean Water
Actin Hallstrom vy. Tillamook County, 493 US. 20, 29 (1989) as evidence
that “Congress [did not] manifest an intent to favor plaintiffs over
defendants.” (Pettuon at 20.) But again, this observation does not indicate
that Congress was less concerned with enforcement of environmental Laws
than civil rights laws) Assuming the sixty day notice and diligent
prosecution provisions are satisfied, the analysis ts the same — did Conytess
intend to encourage ciuzen enforcement? The answer is yes in both

environmental and civil rights cases

2 Pacific Lumber points out that nine specified environmental
organizations are relatively well funded, and are not “impecunious ” But

27

D. THERE IS NO DISCREPANCY AMONG THE
LOWER COURTS FOR THIS COURT TO
CLARIFY.

Pacife Lumber’s statement that there is “contusion” in
the lower courts regarding which standard to apply ts simply
accurate. Pacitie Lumber is attempting to create contusion
where there i none. In reality, lower courts are uniformly
applying the “dual” standard when making fee determinations
mm environmental citizen suits) Notwithstanding the Ninth
Circunt’s now overruled decision in) Carson Truckee Water
Conserv, Dist. vo Sec’y of the Intertor supra, Respondent is
unaware of any deciston in which a court has applied the
“contributed substantially standard to a fee application by a
defendant alleged to be in violation of a federal environmen
tal protection statute. Phere is simply no unsettled law tor this
Court to clarify

Sterra Club vo Shell Oil Co.. SVT B2d 1169 OSth Cir
1987), the only case cited by Pacific Lumber in which a
prevailing defendant was awarded tees, ts not to the contrary
That case contains no discussion of the standard for a tee
award to a defendant. The facts of the case indicate that the
court likely used the “dual” standard and, upon tinding the
plamtiffs’ claims to be frivolous, awarded tees to the prevatl

ing defendant. Also, the opinion indicates that “costs” were

the fact that nine organizations have substantial assets says nothing about
the hundreds of local, undertunded environmental organizations, such as
EPIC, and individuals who make use of the citizen suit provisions ot
tederal environmental Laws, who are indeed impecunious Motcover
whether a particular plainttt is umpecunious ts a relative term) None of the
nine well funded organizations tdentified have anywhere near the assets of
a company ke Pacific Lumber The article cited by Pacitie Lumber
acknowledges the obvious that environmental groups “cannot begin to
match industry political action committees in political cash ~ George
Hager, Lobbyists: For Industry and Opponents, a Showdown ty on the No
48 Cong. Q. Wkly. Rep. 145, 145 (1990)

28

awarded, but is ambiguous as to whether attorneys’ fees were
awarded. 817 F.2d at 1176.

In addition to the Ninth Circuit and district court opin-
ions below, every other court in the country which has consid-
ered a fee request by a prevailing defendant tn a citizen suit
has applied the same stringent standard and dented a fee
award. One district court applied a “frivolous or bad faith”
standard to an ESA citizen suit and denied defendant's fee
request. National Audubon Society v. Babbitt, Case No. CV
94-O105-GT (S.D. Cal., Dec. 15, 1994). Five district courts
have applied a “frivolous” or “meritless” standard and have
uniformly denied requests by prevailing defendants for fees
and costs in citizen suits under the Clean Water Act. Atlantic
States Legal Foundation v. Arrow Transportation Co., Civil
No. 95-147-HA (D. Ore., Jan. 27, 1997); Atlantic States Legal
Foundation v. Onondaga Department of Drainage and Sanita-
tron, 899 F. Supp. 84. 87 (N.DLN-Y. 1995): Washington Trout
ve Scab Rock Feeders, 823 F. Supp. 819, 821 (E.D. Wash.
1993). National Wildlife Federation v. Consumers Power Co.,
729 F. Supp. 62, 64 (W.D. Mich. 1989); Sterra Club v. SCM
Corp., Civ-82-1076T (W.D. NOY. 1985). A district court has
applied a “trivolous or harassing” standard and denied a
request for a prevailing defendant in a citizen suit under the
Clean Air Act. Consoltdated Edison Co. v. Realty Investment
Assoc... supra. Five courts have denied tees to. prevailing
defendants in RCRA citizen suits based on findings that the
suits Were not frivolous. Razore v. Tulalip) Tribes, supra;
Orchard Lane Road Association v. Pete Lien & Sons, Inc., 16
b.3d 416, 1994 U.S. App. LEXIS 1508, 24 ELR 20804 (10th
Cir. 1994); Palumbo v. Waste Technologies Industries, 37 F.3d
1495, 1994 U.S. App. LEXIS 29355 (4th Cir. 1994): Truck
Components, Inc. v. Beatrice Co., 1996 U.S. App. LEXIS
9946 (N.D. TL. July 15, 1996). Environmental Compliance
Oversight Corp. vo SmithKline Beecham Corp., 1994 WL
675297 (E.D. Pa., Nov. 21, 1994).

29

E. GRANTING THE PETITION FOR WRIT OF
CERTIORARI WILL NOT AFFECT THE
RIGHTS OF THE PARTIES AND WOULD BE
AN ADVISORY OPINION.

The District Court in this case took the efficient course of
action and decided Pacific Lumber’s fee motion under both
possible standards, finding that plaintiffs’ claims were not
frivolous, and that Pacific Lumber did not “contribute sub-
stantially” to the goals of the ESA:

However, the result Pacific Lumber sought, fur-

thered and obtained was the validity of its permits

so that it could proceed in its planned harvests. The

court cannot conclude that Pacific Lumber’s pursuit

of conducting a timber harvest serves the public

interest in implementing the ESA’s goals of preserv-

ing endangered and threatened species. Because

Pacific Lumber 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 Pacific Lumber 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 Pacific Lumber attorneys’

fees under the ESA’s fee shifting provision.

(App. C, p. 24a.) Given the evidence, cited above in Part II,
that Pacific Lumber’s logging actually harmed occupied mar-
bled murrelet habitat, the District Court's finding ts
unsurprising, and certainly not an abuse of discretion,

Pacific Lumber implies that because the Ninth Circuit
based its ESA § 7 decisions, in part, on its policy view that a
general rule requiring consultation would discourage commu-
nications that may ultimately benefit listed species, that its
defense of those claims must have actually conferred some
benefit on these species. But Pacific Lumber failed to produce
any evidence that its discussions with the U.S. Fish and
Wildlife Service in this case actually furthered the purposes

of the ESA. Indeed, the only evidence on this question ts that

x0

Pacific Lumber’s salvage logging conducted after the prelimi
nary injunction was dissolved harmed marbled murrelets and
their habitat

In short, the tact that there may be policy reasons sup
porting the Ninth Circuit's holding that section 7 of the ESA
does not require formal consultation when the Service gives
advice to private landowners does not mean that the Court can
presume that appheation of that rule in all circumstances wall
serve the goals of the ESA. If Pacitie Lumber’s proposed
standard applies, evidence of “substantial contributron™ ts
required and Pacitic Lumber produced no such evidence
Therefore, this petition does not present a “live” controversy,
because the District Court already decided that Pacific Lum
ber did not meet its own preferred standard tor recovering

fees

IV. CONCLUSION

Pacific Lumber has presented no reason, much less any
compelling reason, for this Court to revisit the well-estab
lished standard that prevailing defendants must show that
citizen plaintiffs acted frivolously or unreasonably betore
such defendants may recover attorney tees under federal envi
ronmental statutes such as the Endangered Species Act
Respondent EPIC respectfully requests that the Court deny
Pacific Lumber’s petition tor a writ of certoran

Respectfully submitted,

Tromtas N. Lures

Counsel of Record

Environmental Protection
Information Center

One Market Plaza

Steuart Tower, loth Floot

San Francisco, CA 94105

(415) 777-S600

Counsel for Respondent
Environmental Protection
Information Center, Inc

Dated: December 6, 1999

App. |

APPENDIX J
EXHUBIT 12
[LOGO

bHE PACIFIC LUMBER COMPANY

PO. Box 37 Scotia, Ca 95565 (707) 764-2222
September 1, 1995

Nis. Low Kautman

Forest Practice Inspector

Cahtornia Department of Forestry
and Fire Protection

Humboldt / Del Norte Ranger Unit

LIS So. Fortuna Blvd

Fortuna, CA 95540

Dear MIs) Rautman:

Kk: Operations Pursuant to l4 CCR 1038(b)

the Pacitic Lumber Company (PL), acting itself as
licensed timber operator or through independent sub-
contractors acting as licensed timber operator, ts planning
to commence operations on exemption notice
1-O5-08eHIUM on behalf of Salmon Creek Corporation,
the Landowner. As vou recall, operations under this
exemption notice have been subjected to consultation
with USB&W and CDF&G regarding mitigation of
impacts to certain species of wildlife listed under the
State and/or Federal Endangered Species Acts. One ot
the limitations imposed limited the season of operation in
certain timber types to a period between September 15
and April I. PL. intends to commence operations some-

time shortly atter September 15, 1995.

y

App

With ayreement of the landowner and as a result) ot
consultations required by law to assure protection ot
listed species, operations conducted under this exemp
tron notice are limited by certarn mitiyations mtended to
assure that noe “take of listed spectes occurs. These lim
tations are documented: im oan exchange of correspon
dence between the waldiite agencies and PL beginning
With a joint letter trom the agencies to PL, dated April te,
IYO tollowed by a detter trom PR back to the agencies
seehking, Claritrcation, dated May 3. 1995) and tinally con
cluding wath oa clarttreation letter trom the agencies to Ph,
dated July PS 1995) ATL operations will be conducted in
stort compliance with the terms of these letters and: all

applroable torest practtee rules

\t the current tume PRoais planning operations utilizing
both yvround based conventional yvarding systems and
Heheopter varding systems. With regard to the latter,
LSESW and CDOR&G, have clarmtied a statement ino the
\prik 12) 1895 detter by stating that any restriction on
heloopter operations apples only cortlion the marbled tue
revel Dreedoiy season, whieh ends September 15 (luly 18,
IYO letter, po do atem EH) Tn conversation with Mr Pha
Detrich of USEXW. Tspecitically asked it helicopter yard
Ing atter the seasonal restriction had passed would be
permitted and he acknowledged that such operations
were not prohibited (personal conversation wath Phal

Detrich)

Lhough not required by law, because of the sensitivity of
this matter, Lwrite to vou at this early date to give your
agency and the wildlite agencies copied with this letter
notice of Pls intent to commence operations, providing

ddequate {ime for any pre operation discussions o1

|

)

App. 3

Inspections, and so that there is a clear understanding
between the operator and the agencies. Task that you or
any other agency representative contact me reyarding,
any discussion or inspections that any agency thinks
appropriate prror to, during or atter commencement of
operations

Sincerely,

bhiks PACTEIC LUMBER

COMPANY

s/ Thomas M. Herman

PHOMAS M. HERMAN

Resource Manayet

Enels
rar Phil Detrich, USEFAaW ;
Mark Stopher, CDEC, ;

App 4

APPENDIX K
PNHIBIT 19

Memorandum

March 8S. 19%

lo Mr Thomas Po Ostpowich
Deputy Chiet, Forest Practice
Cahtornia Department of Porestry
and Fire Protection
Coast Cascade Region, Resource Management
Post Ottice Bow oO
Santa Rosa, Caltornia 5402

bron Department of Fish and Game Reson |
bOL Locust Street. Redding, Calttornia 9800

Subject Heheopter Yarding, From Ocoupired [sic] Mar
bled Murrelet Habitat on Previously Unentered
Old -Carowth Redwood Stands

Following, are the results of an evaluation performed
by the Department of Fish and Game im response to
proposed hehcopter varding, of down loys trom: previ
ously unentered old-yrowth stands Phe subject stands
are those owned by the Salmon Creek Corporation and
Ihe Pocitie Lumber Company (PALCO) and the loysiny,
proposed rs rm luded under exemption notice
LOS OSeHIEM. and other exemptions These comments
apply only to those old growth redwood stands which
have been surveyed by PALCO (or ther contractors) and
where observations have been noted indicating, that mat
bled murrelets Gisted as endangered under the Calitornia
Pndangered Species Act) are present in these stands o1
that these stands are “occupred” by marbled murrelets

Phese comments are intended to supplement our letters

App y

ot April 12, 1995 and July TS, 1995, with respect to timber

harvest exemption operations proposed by PALO)

Ihe Department is providing, these comments to the
Department of Porestry and bire Protection (CDb) an
applieation to California Forest Practice Rules) Section
1O38(b) which specities conditions under which timber
harvest activities are exempt from the requirement for
preparation of a timber harvest plan Spectieally, thas
evaluation pertarns to the application of « oncdition Section
LO3S(D)7) which states, No known sites or rare, threat
ened or endangered plants or animals wall be disturbed:

threatened or Camayed

The Department met with PAT CO representatives on
at deast emht occastons during, 1995 to discuss and/or
treld evaluate old) growth redwood stands where exemp
trata Lersryratyys either boas occurred) or as proposed These
dates include January P33. Pebruary 22, March and 22
April 19. May 3) August 30 and September 5 On several
of these occasions the effort was specitically to evaltate
old prowth redwood stands where exemption loyyiny,
using a helicopter is proposed. During the treld visits the
stand’s trees, canopy closure, topoyraphy and: logs tat
reted tor removal were mspected We discussed) the
means by which a heleopter would remove downed loys,
potential damaye to the canopy and standing, trees and

procedures which might mitigate adverse impacts

Department biologists have also recently observed
several hehcopter varding, operations on the BL Dorado,
lorvabe and Sin Rivers natronal forests. Helicopters such
as the Chinook 234, Boeiny 107 and Huey UES were

observed removing logs trom mixed confer and Douglas

App 6

tir stands where selection/salvage and thinning harvest
methods were utilized. While observing these helicopter
Varding operations several concerns were noted relevant
to the exemption logging proposed by PALCQO. The prin
ciple [sic] concerns involve the effects of rotor wash on
trees directly below and in the immediate vicinity
\nother concern was that of direct damage to standing

trees and canopy as logs are titted and removed
Specitic observations include

1 In all cases the tops of trees directly below and in the
near proximity were whipped abruptly and continu
ously while the hehcopter was lowering the tay line,
the tag line was being attached to the cabled logs and
while logs were being litted

Small branches, leaves, cones and debris trom. the
anopy were blown to the ground as the helicopter
hovered over each site and while logs were lifted
Some ot the talliang debris was generated when indi
vidual logs, while being hosted. struck and broke oft
portions (branches and bark) of standing trees. Some
of the debris (small branches, needles, dutt) appeared
to be a direct result of the downward air movement
trom the helicopter rotor blowing debris out of the
trees and/or torcing debris oft the ground into the air

In most instances the rotor wash appeared to pene
trate the canopy, attect branches for the tull length ot
the trees and disturb soil and debris on the ground
under and near the hovering helicopter. This) was
observed with a tay line up to 250 teet in length

lhese observations are of concern because murrelets

principally mest ino the upper one-third to one-halt of

forminant trees mm the stand. Murrelets use natural struc

ture and

ind elements an the Canopy tor ats nest and tor

App. 7

cryptic protection. These structures and elements include
plattorms such as debris piles and needle accumulations
for nests, and small branches that function as screening
and protective cover. During the observed helicopter
operations these smaller, and apparently tragile elements
in the canopy appeared to be mobilized by the rotor
wash. These elements were also physically damaged by
the logs being lifted up and through the remaining can-
opy. These impacts are likely to reduce the suitability of

the stand tor murrelets in subsequent nesting seasons.

Itis apparent to the Department that helicopter yard-
inyy to remove downed logs from a relatively closed can-
Opy, old-growth redwood stand has a high likelihood otf
disturbing and/or damaging some of the critical elements
that make individual trees viable as a murrelet nest site,
According, to information provided by PALCO there may
be several log removals from each acre and many hun-
dreds in each occupied murrelet stand Phe cumulative
effect will likely be that many of the requisite nest ele-
ments tor murrelets will be knocked out or blown out ot
the standing trees. If this occurs the ability of the stand to
function for murrelet nesting will be substantively
reduced. Theretore, the Department concludes that
PALCO’s proposed operation will, with a high degree ot
probability, disturb, threatea or damage known sites of

threatened or endangered animals

Phe Department’s conclusion in this matter ts based
upon our assessment of avatlable information on murre
let nesting requirements and observations ot the effects of
rotor wash and physical damage to standing, trees hese

eftects are likely to disturb, threaten or damage essential

habitat characteristics

App sS

Although the described observations provide sutt
Gent basis tor reaching this conclusion, some site-specith
uncertamnty remains. The Department was not able to tind
and observe a helicopter varding, operation identical to
that proposed by PALCO In tact. hehcopter pilots inter
viewed by the Department opined that there is mo closely
comparable precedent tor the type of operation proposed
by PALCO. In lyht of this. the Department is walling, to
participate wath ¢ DF and PALC QO in turther investiga
trons to more detinitively determine whether the subject
proposal would likely disturb, threaten of damaye known

murrelet sites

\bsent a representative demonstration to the con
trary, the Department's opinion ts that the proposed heli
copter varding activities wall hhely disturb or damage

known sites of threatened or endangered species

It vou wash te discuss this matter further, please
contact Region | Environmental Services Supervisor Mr

Mark Stopher at (Yo) 225-2275 (¢ ALNET 442-2275)

S Mark Stopher
tor Richard |. Elhott
Regional Manager

CA see attached list

En

App YQ

APPENDIX I
Ip TI] IN TH NETED STATES DISERICT COURT

FOR THE NORTHERN DISERICT OF CALIFORNIA

MARBLED? MURRELE I
ul al

Plarntitts

BRLECE BABBIETL ct

1 tendants

Tages | through YS) inclusive
DEPOSTTION OF KENNEPEL HOPPSMEAN
March 22, 1996
VOLUME I
REPORTED BY

ANNETTE M. ROCCA, CSR NO) Sif

CERTIFIED COPY

{ |
if ¢ () ware ( ( ) ( roo? t thys
\ ust MITT evevtyl ti ert hre tT t oOpter 1
hy Opel tr LT Vcd aa t t nypt 1 e { al nwt
!
th fake YY el 1a Feit 1aor thre tened pre it
\n 1 | se tine ora tak hye t st t? j }

App 10

\ | understand. We discussed it in terms of there

being potential for “take

2 Did you have an opinion as to whether I'm
talking about you personally, did you heve on opinion of

your own as to whether it would be likely or very likely

»

to take
\ Yes | did

MIRO KEMP Object to the form of the question,

its compound
MR LIPDI Det me rephrase it

() Did you have an OPINION as to whether the hel
opter varding operations of exemption OdS6 would be

lbhely to “take” an endangered or threatened species?

() tnd what was your opinion?
Ihatat would be Ikely to “take

() \nd which threatened or endangered

[p> do] Was your opinion that helicopter varding
would be Likely to “take” marbled murrelets an opinion
firected only to helicopter operations that) were con
fucted wathin the marbled murrelet breeding season, or

Your Opinion broader than that?

\ My opinion was that at any time during the
breeding season or not, that helicopter use as proposed

ould resulton “take” ot marbled murrelets

App. 11

QO. Was your opinion that helicopter use would be
likely to “take” marbled murrelets restricted to helicopter
use over murrelet nesting habitat or the surrounding one
quarter mile buffer that ts less than 500 feet above the

treetops of the nearest old growth stand?

And that’s a quote from page 3 of Exhibit 11, the July
ISth letter, paragraph Ff.

A. Yes, but for a different reason than what this was

written
QO. Can you explain that to me?

A. This restriction refers to an avoidance of notse
disturbances, disruption of the central breeding behav-
iors, and my concern is with actual habitat loss. | agreed
with this, but my opinion on August 30th was not related

to nowe disturbances

App. 12

APPENDIX M
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

MARBLED MURRELET,

et al.,

, NJ ‘05.29 .
Plaintiffs, No. C-95-3261 LCB
V3.

BRUCE BABBITT, et al.
Detendants.
Pages 1 through 150, inclusive.
DEPOSITION OF SALVADOR JOHN CHINNICT
July 9, 1996
REPORTED BY:
ANNETTE M. ROCCA, CSR NO. 8067

CERTIFIED COPY

[p. 90] EXAMINATION BY MR. LIPPE (Resumed)
MR. LIPPE: Back on the record.

QO. Was there a meeting with CDF and Pacitic Lum-
ber and other agencies, possibly on June 27th, about

helicopter varding as part of exemption 086?

A. What vear?

App. 13

Q). ‘YU,

A. I believe there was a meeting in Scotia, yes, but |

did not attend.

QO. Do you know if Pacific Lumber is still intending

to do helicopter yarding as part of exemption 056?
A. 1 don’t know.
MR. KEMP: [I can save you time on that.
MR. LIPPE: Okay

MR. KEMP: Pacific Lumber takes the position
that as long as CDF finds that helicopter varding, would
be a violation of 1038, whatever it is, Which is what CDE
presently believes, PALCO will not nor attempt to hel

copter loy.

PALCO reserves the right to try to convince CDF and
Fish and Game that helicopter logging, would not be
injurious to habitat. But [p. 91] until that takes place,
there is some sort of demonstration and CDF concurs,

PALCO will not attempt to helicopter log,

And further, just to get it out of this case, should
PALCO decide to have some kind of attempt to convince
CDF to change its mind, it will make a public statement

to vou to that eftect.

MR. LIPPE: So if you don’t mind me following
up on that. Actually, | want to ask you a couple ot

questions, as long as we're doing, this.

Does Pacific Lumber have plans now in the works to

convince CDF that it won’t harm these species.

App. 14

MR. KEMP: No.
MR. LIPPE: Okay. Thank you. I appreciate that.

©. What were you told about the nature of the
exemption harvest operations to take place under O86,
when you were asked about advice on how to avoid a

take of murrelets?

A. To the best that I can recall, | was told that we
would be interested in removing dead downed material,

and maybe some dying material.
©. Anything else, or is that it?

A That’s all | can remember

App. 15

APPENDIX N

[p. 1] IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARBLED MURRELET > CIVIL ACTION
(Brachyramphus Marmoratus), NO
NORTHERN SPOTTED OWL C-95-3261 LCB
(Strix occidentalis caurina);

ENVIRONMENTAL PROTEC TION :

INFORMATION CENTER, INC.

V.

BRUCE BABBITT, Secretary,
Department of the Interior; JOHN -
TURNER, Director, United States
Fish and Wildlife Service;
MICHAEL SPEAR, Region 1
Director, United States Fish &
Wildlife Service; U.S. FISH &
WILDLIFE SERVICE, THE

PACIFIC LUMBER COMPANY, a
Delaware Corporation; SCOTIA
PACIFIC HOLDING COMPANY, a :
Delaware Corporation; SALMON
CREEK CORPORATION; a
Delaware Corporation

Philadelphia, Pa.
October 2, 1996
BEFORE HON. LOUIS C. BECHTLE, CH. J. Emeritus
HEARING

* * *

[p. 40] MS. KOHLER: The appropriate person
would be John Turner, who is Acting Director.

SO ORS 4!
(707) 725-4413

VIOLATIONS AND COMMENTS

ACTIVE INSPECTION VIOLATION NOTED

In the Lawrence ( reek fell Creek area Ope rations were
being conducted in identified marbled murrelet habitat

Standiny trees had been damaved within this area a

App. 29

prohibited by the terms of the marbled murrelet consulta
tion. These trees extended at least 50 to 80 feet into the
canopy and are now on the ground. Failure to comply
with the terms of the consultation 1s a VIOLATION of 14
CCR 1038(b)(7), which requires that exempt Operations
not result in damaye, threat, or disturbance to known
ites of rare, threatened or endangered plants or animals
\ citation and stop work order have been issued for this

Violation.

\UDIT ---- PRAIL AUDI KAT
\UDIT ------- ---TRATI AUDII LKAIL.
\UDIT ------------- TRAIL AUDII PRAII
AUDIT ----------------TRAIL AUDII LKATI
AUDIT -------------------TRAIL AUDIT PRAT

NOI IC) BE. MAILED
NO] IC) Bt: MAILED

Place this in the TMP file as the audit trail of computer

venerated form letters

-otice Number 1-96-784-EX/HUM
Inspection Letter dated October 09, 1996
Person contacted concerning
limber Operation: Mike Niles
Inspection Date: October 09, 1996 — Inspection Number: |
Last of Addresses

Scotia Pacific

Holding Company

PO. Box 712
Scotia, CA 95565

App. 30

200009900001) nlator tttteeteret

The Pacitic Lumber
Company

P.O. Box 37

Scotia, CA 95565

App. 31

APPENDIX P

[p. 1] IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE LOUIS C. BECHTLE, JUDGE

MARBLED MURRELET,

BS AL,

PLAINTIFFS,

VS.

BRUCE BABBITT,
Et At.

DEFENDANTS.

NO. C 95-3261 LCB

)
)
)
)
)
)
)
)
)

SAN FRANCISCO, CALIFORNIA
TUESDAY, OCTOBER 22, 1996

TRANSCRIPT OF PROCEEDINGS

APPEARANCES:
FOR PLAINTIFF:

LAW OFFICES OF THOMAS N.
LIPPE

ONE MARKET PLAZA

STEUART STREET TOWER,
16TH FLOOR

SAN FRANCISCO, CA 94105

BY: THOMAS N. LIPPE, ESQ.

LAW OFFICES OF SHARON E.
DUGGAN

1032 IRVING STREET, SUITE 218

SAN FRANCISCO, CA 94122

BY: SHARON E. DUGGAN, ESQ.

(APPEARANCES CONTINUED ON FOLLOWING PAGE)

REPORTED BY: LEO T. MANKIEWICZ, CSR, RPR
OFFICIAL REPORTER, USDC

App. 32

* * *

[p. 19] SCANLON - DIRECT\LIPPE
THE WITNESS: YES, YOUR HONOR.
MR. LIPPE: WE ACTUALLY HAVE ANOTHER

MAP. WHICH IS A MUCH LARGER SCALE, WHICH
MIGHT BE BETTER.

Q. IS THIS MAP EASIER FOR YOU TO DETER-
MINE WHERE IT WAS?
A. YES, IT Is.
THE COURT: IS THAT P-2, OR IS THAT SOME-
THING ELSE?
MR. LIPPE: THAT WOULD BE P-3, IF... WE
HAVE ANOTHER ONE COMING UP HERE.
(WHEREUPON, PLAINTIFFS’ EXHIBIT P-3 WAS
MARKED FOR IDENTIFICATION.)

THE COURT: WELL, LET’S DO THIS. LET'S
GET THE MARKING A LITTLE LATER. LET’S GET TO
WHAT HE SAW AND DID AND THOUGHT AND FELT
AND WHAT HE TESTIFIED TO. WE CAN DO ALL THIS
MARKING AT A RECESS

BY MR. LIPPE:
©. MR

THE COURT: THERE’S FIFTY-FIVE PEOPLE
HERE

BY MR. LIPPE:
Q. MR. SCANLON, WHAT WAS THE BASIS FOR

YOUR ISSUING OF A NOTICE OF VIOLATION TO
PACIFIC LUMBER COMPANY?

——

App. 33

A. THE BASIS OF THE VIOLATION WAS A PER-
CEIVED VIOLATION OF CALIFORNIA CODE OF REG-
ULATIONS TITLE 14, SECTION 1038(B), SUBSECTION
(7).

Q. AND SO WHAT DID PACIFIC LUMBER ACTU-
ALLY DO THAT YOU BELIEVE VIOLATED THAT
RULE? DID THEY CUT DOWN TREES THAT WERE [P.
20] STANDING, FOR INSTANCE?

A. WHAT PACIFIC LUMBER IS ALLEGED TO
HAVE DONE IN THAT CASE IS -

Q. CAN I JUST INTERRUPT YOU, PLEASE? I’M
NOT ASKING WHAT THEY WERE ALLEGED TO HAVE
DONE.

THE COURT: LET ME...

YOU NOTICED A VIOLATION, SOMETHING YOU
SAW?

THE WITNESS: YES, YOUR HONOR.

THE COURT: WHAT DID YOU SEE?

THE WITNESS: WHAT I SAW WAS A
NUMBER OF TREES THAT HAD BEEN KNOCKED
DOWN, WHICH APPEARED TO BE CONTRARY TO
THE TERMS OF THE CONSULTATION THAT WAS
DONE FOR THAT EXEMPTION.

THE COURT: ALL RIGHT.

BY MR. LIPPE:

Q. HOW MANY TREES WERE KNOCKED DOWN?

A. WE OBSERVED APPROXIMATELY SEVEN OR
SIX TREES THAT WERE KNOCKED DOWN OF ANY
SUBSTANTIAL SIZE.

Q. OKAY. HOW MANY TREES TOTAL WERE
KNOCKED DOWN, OF ANY SIZE WHATSOEVER?

App. 34
A. | HAVE NO ESTIMATE OF THE NUMBER OF
SEEDLINGS THAT WERE KNOCKED DOWN.

Q. OKAY. HOW TALL WERE - HOW TALL WAS
PHE TALLEST OF THE SIX OR SEVEN?

A. ESTIMATED AT 75 FEET.

QO. OKAY, HOW TALL WAS THE SHORTEST OF
THAT GROUP?

[P. 21] A. APPROXIMATELY 30 FEET.

QO. AND DID YOU REACH AN OPINION AS TO
WHETHER THOSE TREES WERE TREES THAT WERE
IMPORTANT FOR THE MARBLED MURRELET, AS FAR
AS ITS HABITAT IS CONCERNED?

MR. CARTER: OBJECTION, YOUR HONOR. |
DON'T -

THE COURT: WELL, IF HE SAYS NO, IT’S
NOT A PROBLEM, RIGHT?

DID YOU MAKE SOME DETERMINATION?

THE WITNESS: | DID NOT MAKE ANY SUCH
DETERMINATION.

THE COURT: SEE? NOT A PROBLEM.
BY MR. LIPPE:

QO. DID SOMEONE ELSE MAKE A DETERMINA-
PION AS TO WHETHER THE KNOCKING DOWN OF
THOSE TREES WOULD ADVERSELY AFFECT THE
MARBLED MURRELET?

A. I DON’T UNDERSTAND THE QUESTION.

THE COURT: WELL, LET’S JUST... YOU PER-
CEIVED THE VIOLATION, YOU SAW IT, AND YOU
TOOK SOME STEP TO RECORD A VIOLATION SOME-
WHERE. WHAT DID YOU DO?

App. 35

THE WITNESS: WHAT WAS DONE IS A
NOTICE OF VIOLATION WAS ISSUED TO THE COM-
PANY, AND A CITATION WAS ISSUED TO THE COM-
PANY.

THE COURT: OKAY, AND DID THAT VIOLA-
TION HAVE ANYTHING TO DO WITH THE FINDING
THAT THERE WAS AN ENDANGERMENT TO THE
HABITAT FOR THE MARBLED MURRELET, AS FAR AS
YOU KNOW?

THE WITNESS: I CAN’T SPEAK DIRECTLY TO
THAT, YOUR [P. 22] HONOR.

THE COURT: DO I TAKE IT OUR VIEW IS
THAT IT VIOLATED 14-1038(B)(7)?

THE WITNESS: YES.

THE COURT: MARBLED MURRELET OR NO
MARBLED MURRELET, THAT’S WHAT IT VIOLATED.
THE WITNESS: YES, YOUR HONOR.

THE COURT: ALL RIGHT, GO AHEAD.
BY MR. LIPPE:

Q. NOW, WHY WAS KNOCKING DOWN OF
THOSE STANDING TREES A VIOLATION IN TOUS
VIEW AT THAT TIME?

A. UNDER THE TERMS OF THE CONSULTATION
THAT HAD BEEN INCLUDED WITH THE EXEMPTION,
STANDING TREES WERE NOT TO BE DAMAGED.

Q. AND IS IT STILL YOUR VIEW THAT THE
KNOCKING DOWN OF STANDING TREES WOULD
CONSTITUTE A VIOLATION?

A. YES, IT IS.

OQ. WOULD THAT BE TRUE FOR STANDING
TREES OF ANY SIZE?

App. 36

A. NO, IT WOULD NOT.

Q. WHAT IS THE SIZE CRITERION THAT WOULD
BE THE CUTOFF, IF YOU WILL?

A. THE CUTOFF, IN MY MIND, WOULD COME
WITH TREES OF A HEIGHT WHERE YOU WERE
REACHING INTO THE CANOPY, WOULD BE THE PRI-
MARY CONCERN.

Yes.

THE COURT: WHAT’S YOUR UNDERSTAND-
ING OF THAT RANGE OF HEIGHT, OR THAT HEIGHT?

[P. 23] THE WITNESS: I DON’T HAVE A
DIRECT UNDERSTANDING OR A DIRECT FIGURE FOR
THAT, YOUR HONOR.

THE COURT: OVER 20 FEET?

THE WITNESS: IT COULD. IT COULD BE
OVER 30 FEET. IT COULD BE OVER A GREAT AREA,
DEPENDING.

THE COURT: AND THERE IS SOMEONE IN
YOUR DEPARTMENT THAT DOES HAVE THAT
UNDERSTANDING?

THE WITNESS: THAT WOULD BE DONE IN
CONSULTATION WITH THE DEPARTMENT OF FISH
AND GAME.

THE COURT: ALL RIGHT.
BY MR. LIPPE:
O. IS THERE ANY PLAN TO REACH THOSE

KINDS OF DETERMINATIONS IN CONSULTATION
WITH THE FISH AND WILDLIFE SERVICE AS WELL,
OR IS IT SOLELY THE DEPARTMENT OF FISH AND

GAME?

Ve

App. 37

A. I HAVE NO KNOWLEDGE OF THAT.

Q. OKAY. HAS ANYTHING CHANGED, IN YOUR
UNDERSTANDING, OF THE CONDITIONS THAT
APPLY WITH RESPECT TO THE KINDS OF STANDING
TREES THAT CAN BE KNOCKED DOWN WITHOUT
CAUSING A VIOLATION, SINCE YOU ISSUED THE
NOTICE OF VIOLATION OCTOBER 9TH?

A. NO, THAT HAS BEEN NO CHANGE, IN MY
UNDERSTANDING.

Q. OKAY, SO IN YOUR UNDERSTANDING THE
TREES THAT WERE KNOCKED DOWN OCTOBER 7TH,
IF YOU SAW THAT HAPPEN TODAY, THAT WOULD BE
A VIOLATION, IN YOUR VIEW?

A. YES, IT WOULD.

Q. OKAY. DO YOU HAVE AN UNDERSTANDING
AS TO WHY CDF WITHDREW

* + *

[p. 91] MARSHALL - DIRECT\LIPPE

L-U-C-K-E, WHO’S ASSISTANT DEPUTY DIRECTOR
FOR RESOURCE MANAGEMENT, WHO HAS INDI-
CATED TO ME THAT HE’S BEEN IN CONTACT WITH
THE CHIFF DEPUTY DIRECTOR IN THE DEPART-
MENT.

THE COURT: AND IS MR. LUCKE SOME-
WHAT OF A SUPERIOR TO YOU?

THE WITNESS: YES, HE IS.

THE COURT: THANK YOU.
BY MR. LIPPE:

Q. I’M SORRY, YOU SAID MR. LUCKE SAID HE

WAS THAT CONTACT WITH SOMEONE ELSE IN THE
DEPARTMENT?

Nitin

>

App. 38

=—

A. OUR CHIEF DEPUTY DIRECTOR, MR. JIM
BURROUGHS.

Q. OKAY, AND WHAT WERE THE INSTRUC-
TIONS THAT MR. LUCKE TRANSMITTED TO YOU?

A. WE’VE BEEN INSTRUCTED THAT WE ARE TO
MAKE A DAILY INSPECTION OF THE AREA OF THE
SUBJECT EXEMPTION UNTIL FURTHER NOTICE.

QO. OKAY. WERE ANY PARAMETERS PUTS ON
THE, “UNTIL FURTHER NOTICE” PART OF THAT, A
WEEK, TWO WEEKS, OR ANYTHING?

A. THERE WAS NO QUALIFIER BEYOND “UNTIL
FURTHER NOTICE.”

Q. OKAY, AND WERE YOU INVOLVED IN THE
DECISION TO ISSUE A NOTICE OF VIOLATION TO
PACIFIC LUMBER ON OCTOBER 9TH?

A. YES, I WAS.

Q. OKAY, AND IN YOUR OPINION, WHAT WAS
THE SUBSTANCE OF THE VIOLATION THAT THAT
NOTICE PERTAINS TO?

A. WE DISCUSSED WITH MR. KEN MOORE
WHEN HE CAME BACK FROM A [P. 92] SITE VISIT -
AND WHEN I SAY, “WE,” THAT MEANS MR. SCAN-
LON AND MYSELF AND MR. MOORE - ABOUT WHAT
HE HAD SEEN IN THE WAY OF SOME SMALL TREES
THAT HAD BEEN KNOCKED DOWN IN CONNECTION
WITH REMOVING A LARGE LOG. WE DISCUSSED
WHETHER, IN HIS BIOLOGICAL OPINION, THAT
WOULD BE A VIOLATION OF 1038(B)(7). HE INDI-
CATED HE THOUGH IT WAS.

QO. OKAY.

THE COURT: NOW, MR. MOORE, HE IS A
SUBORDINATE TO YOU.

App. 39

THE WITNESS: I’M NOT SURE HOW DFG IS
STAFFED, YOUR HONOR.

THE COURT: OH, I SEE. BUT IN ANY SENSE,
DOES HE SOMETIMES REPORT TO YOU, AS YOUR
AGENCIES WORK TOGETHER? HOW DOES THAT
WORK?

THE WITNESS: NO, HE WOULD REPORT TO
HIS DIRECT LINE SUPERVISOR IN THE DFG HIER-
ARCHY.

THE COURT: OKAY, AND WOULD THAT
THEN COME OVER - YOU’D LEARN IT THROUGH
THAT SAME -

THE WITNESS: WE COMMUNICATE AT VAR-
IOUS LEVELS. I WOULD BE MORE LIKELY PROBABLY
TO BE ON A PAR WITH MR. MARK STOPHER, WHO’S
HERE.

THE COURT: OH, ALL RIGHT. OKAY. THANK
YOU.

BY MR. LIPPE:

Q. WERE YOU INVOLVED IN THE DECISION TO
WITHDRAW THE MISDEMEANOR PROSECUTION
AGAINST PACIFIC LUMBER ON THE NOTICE [P. 93]
OF VIOLATION?

A. I WAS INVOLVED IN THE DISCUSSION.
Q. WHAT WAS THE REASON FOR DOING THAT?

A. AFTER FURTHER DISCUSSION WITH PER-
SONS IN THE DEPARTMENT, IT WAS DETERMINED
THAT AFTER THE STOP ORDER WHICH WAS ALSO
ISSUED AS PART OF WHAT HE HAD SEEN THERE,
AND AFTER THE MEETING WE HAD THE NEXT DAY
TO MAKE SURE THAT WE ALL HAD A COMMON
UNDERSTANDING OF WHAT COULD OR COULD NOT

App. 40

BE DONE AND WHERE IT COULD OR COULD NOT BE
DONE; WE DECIDED THAT IT WAS NOT WORTH PUR-
SUING AS A MISDEMEANOR PROSECUTION.

Q. OKAY. SO NO DECISION WAS MADE THAT, IN
FACT, NO VIOLATION HAD OCCURRED; IS THAT
CORRECT?

A. THAT’S CORRECT. WE STILL BELIEVE THAT A
VIOLATION DID OCCUR.

Q. AND I TAKE IT FROM YOUR TESTIMONY
THAT YOU ARE OF THE OPINION THAT PACIFIC
LUMBER IS NOT GOING TO DO IT AGAIN. IS THAT
WHAT YOU MEAN BY “IT’S NOT WORTH PURSU-
ING”?

A. WE BELIEVE THAT IN THE INTERESTS OF
JUSTICE, IT WOULD BE DIFFICULT TO PROVE, AND
IN A DIFFERENT CONTEXT, IN ANOTHER LOCATION,
IT WOULD NOT HAVE BEEN THE KIND OF THING
THAT WE WOULD HAVE WRITTEN A CITATION FOR.

Q. NOW, HOW LONG DO YOU HAVE THE
RESOURCES TO CARRY OUT THE INSTRUCTIONS
GIVEN TO YOU BY MR. LUCKE, DAILY INSPECTIONS?
CAN YOU DO THAT INDEFINITELY?

A. IF THAT'S WHAT CONTINUED TO BE OUR
DIRECTION, WE WILL

App. 41

APPENDIX Q
[p. 1] PAGES 1-68
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE
LOUIS C. BECHTLE, JUDGE

MARBLED MURRELET C 95-3261 LCB
ET AL., SAN FRANCISCO.
PLAINTIFFS. CALIFORNIA

THURSDAY, FEBRUARY

26, 1998

BRUCE BABBITT, ET AL.,

DEFENDANTS.

)
)
)
)

V. )
)
| COPY
)

REPORTER’S TRANSCRIPT OF PROCEEDINGS
APPEARANCES:

FOR THE PLAINTIFFS: LAW OFFICES OF THOMAS
LIPPE
ONE MARKET PLAZA,
STEUART TOWER
SAN FRANCISCO, CA 94105
BY: THOMAS N. LIPPE, ESO.
LAW OFFICES OF
SHARON E. DUGGAN
1032 IRVING STREET,
SUITE 218
SAN FRANCISCO, CA 94122
BY: SHARON E. DUGGAN,
ESQ.

APPEARANCES CONT’D (NEXT PAGE):

App. 42

REPORTED BY: ROSITA FLORES, CSR, RPR
1301 CLAY STREET,
SUITE 485-5
OAKLAND, CA 94612

COMPUTERIZED TRANSCRIPTION BY ECLIPSE
[p. 2] FOR THE DEFENDANTS:

PILLSBURY, MADISON
& SUTRO
225 BUSH STREEI
SAN FRANCISCO, CA 94104
BY: ALSON R. KEMP JR,
ESO
RAWLES, HINKLE, CARTER
BEHNKE & OGLESBY
lo8 MADISON STREET,
SLITE 300
UKIAH, CA 95482
B8\. JARED G. CARTER, ESQ.
FRANK SHAW BACIK,
ESO

Ip. 11] MR. CARTER BY THROWING OUT
[HE CASE, YOU DON’T HAVE AN INTERPRETATION
AND AN APPLICATION OF THE UNDERLYING STAI-
UTE. IT’S NORMATIVE PROVISIONS. YOU DON’
REACH THAT ISSUE. AND So IT WOULD BE AN
INCORRECT APPLICATION OF THE RAZORE CASE TO
SAY IT WOULD APPLY TO DETERMINE WHETHER OR
NOT A PREVAILING DEFENDANT IS ENTITLED TO
FEES IE WE GET TO THE MERITS, WE HAVE BIG A
rRIAL. AND THE DEFENDANT WINS, WITH THE [p.

App. 43

12} ARTICULATION OF A STANDARD THAT FUR-
THERS THE PURPOSES OF THE ACT. NOTHING IN
RAZORE INVOLVES, IMPLICATES THAT ISSUE IN
ANYWAY.

AND SO OUR POSITION IS THAT IT IS COR-
RECTLY DECIDED, BECAUSE THE DEFENDANT IN
THAT CASE CERTAINLY DIDN’T CONTRIBUTE TO
THE APPLICATION OF THE ACT IN A MANNER TO
CARRY OUT ITS PURPOSES, BUT THAT IT IS INCOR-
RECTLY ARTICULATED. OR IF IT IS CORRECTLY
ARTICULATED, IT APPLIES TO A VERY LIMITED KIND
OF AN ISSUE. IT APPLIES TO THE KIND OF AN ISSUE
THAT IS INVOLVED IN OUR SECTION 9 PART OF THIS
CASE, YOUR HONOR. WE ARE NOT URGING YOU TO
GRANT US FEES UNDER SECTION 9 ON THE THEORY
THAT OUR PARTICIPATION IN OUR LITIGATION IN
SECTION 9 CONTRIBUTED SUBSTANTIALLY TO THE
PURPOSES OF THE ACT. THEY DIDN’T, BUT WE ARE
ASKING FOR FEES ON THAT COUNT BECAUSE IT
WAS UNREASONABLE FOR THE PLAINTIFF TO PUR-
SLE THAT, MAYBE NOT UNREASONABLE TO FILE IT.
WE CERTAINLY DON’T THINK WE MET THE RULE 11
STANDARDS, AND YOU TOLD US WE DIDN’T WHEN
WE ASKED FOR A RULE 11 UNDER RULE 11 FOR FEES
AND COSTS DURING THE COURSE OF THE CASE,
BLT THAT CLAIM WAS PURSUED FAR TOO LONG
AFTER IT BECAME CLEAR THAT THERE WAS NO
MERIT TO IT. AND SO THE RULE WE ARE ARGUING
THAT THE COURT SHOULD APPLY IS THAT, FOR
THOSE PARTS OF A CASE WHERE THERE IS AN
ACTUAL LITIGATION OVER THE MEANING AND
APPLICATION OF THE SUBSTANTIVE PROVISIONS OF

App. 44

THE STATUTE, THEN THE “WHEN APPROPRIATE”
STANDARD APPLIES AS ARTICULATED BY MANY,
MANY CASES, PARTICULARLY CARSON-TRUCKEE,
THAT THE

CERTIFICATE OF REPORTER

I, ROSITA FLORES, OFFICIAL UNDERSIGNED
COURT REPORTER OF THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF CALIFOR-
NIA, 450 GOLDEN GATE AVENUE, SAN FRANCISCO,
CALIFORNIA, DO HEREBY CERTIFY:

THAT THE FOREGOING TRANSCRIPT CONSTI-
TUTES A TRUE, FULL AND CORRECT TRANSCRIP-
TION OF MY SHORTHAND NOTES TAKEN AS SUCH
OFFICIAL REPORTER OF THE PROCEEDINGS HEREIN-
BEFORE ENTITLED, AND REDUCED TO TYPEWRIT-
ING TO THE BEST OF MY ABILITY.

/s/ Rosita Flores
ROSITA FLORES

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0173%3A3. Public record. Not legal advice.