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

Supreme Court, U.S,

PIFEEF Dp

DEC @ 1999

No. 99-598

In the - ;

SUPREME COURT OF THE UNITED STATES

PACIFIC LUMBER COMPANY, a Delaware corporation; SCOTIA

PACIFIC COMPANY, LLC. a Delaware corporation, and

SALMON CREEK CORPORATION, a Delaware corporation,

Petitioners,

Me

MARBLED MURRELET (Brachyramphus marmoratus).

NORTHERN SPOTTED OWL (Strix occidentallis caurina), and

ENVIRONMENTAL PROTECTION INFORMATION CENTER,

INC.

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF AMICI CURIAE OF THE

AMERICAN FOREST & PAPER ASSOCIATION, NATIONAL

ASSOCIATION OF MANUFACTURERS, NATIONAL

CATTLEMEN’S BEEF ASSOCIATION, CALIFORNIA

CATTLEMEN'S ASSOCIATION, CALIFORNIA CHAMBER OF

COMMERCE, CALIFORNIA FARM BUREAU FEDERATION,

CALIFORNIA FORESTRY ASSOCIATION, CALIFORNIA MINING

ASSOCIATION, CONSTRUCTION MATERIALS ASSOCIATION

OF CALIFORNIA, MICHIGAN MANUFACTURERS

ASSOCIATION, WESTERN GROWERS ASSOCIATION and

WESTERN STATES PETROLEUM ASSOCIATION

IN SUPPORT OF PETITIONERS

Scott M. DuBoff*

Jeffrey D. Komarow

Wright & Talisman, P.C.

1200 G Street, N.W.. Suite 600

Washington, D.C. 20005-3802

(202) 393-1200

Counsel for Amici Curiae

* Counsel of Record

(Additional Counsel Listed on Inside Cover)

_————————————————————————————————OEOEEEEEE

William RO Murray

PELL bOth Street, NW). Suite SOO

Washington, DC 20046

Counsel for American

horest & Paper Assectition

Jan Amundson

1331 Pennsylvania Ave , NW

Washington, DC 20005

Counsel for Nattonal Avvocta

rroon of Manufacturers

John Braley

1221 th Street

Sacramento, CA 99814

Counsel for California

Cattlemen's Assoctition

bred Maine

1201 K Street, bth Bloor

Sacramento, CA 99814 3906

Counsel for California

Chamber of Commerce

Nancy Mo MeDonough

2300 River Plaza Drive

Sacramento, CA 99833

Counsel for Caltformui

Farm Bureau kederation

Mark So Rentz

400 Capitol Mall, Suite 350

Sacramento, CA 99814

Counsel tor California

Forestry Assoctanon

Adam Harper

One Capitol Mall, Suite 220

Sacramento, CA 95814 3229

Counsel for California

Minine Assoctation

Pat Mitchell

S99 Capitol Mall, LOth Bloor

Sacramento, CA 95814

Counsel for Construction

Matertaly Association of

Caltforma

J} Walker Henry

LOOL Woodward Avenue

Detront, ME 48226 1962

Counsel for Michigan

Manufacturers Assoctation

Jasper bo Hempel

LOOS bth Street, Suite

Sacramento, CA 95S14

Counsel for Western

Gsrowers Assoctation

Gregory Ro MeClintock

$0 S. Grand Ave, 25th Floor

Los Angeles, CA 90071

Counsel for Western

Srates Petroleum Assoctation

PABLE: OF CONTENTS

Pave

PABLE OF AUTHORITIES T

STATEMENT OF INTEREST OF AMIC7 ;

REASONS FOR GRANTING THE WRI 10

A. The Judicial Standard bor Fee Shitting To

Prevailing Citizen Suit Detendants Is) An

Important Issue That Requires The Court's

Attention . 10)

3 Ihe Ninth Circuit Failed To Follow The

Analysis Set borth In The Courts boverty

Decision 12

C. The Ninth Circuits Dual Standard Is

Inconsistent With Congress’ Determination

Phat Citizen Suits Are Limited To A Supple

mentary, Interstitial Role In) Environmental

Ienforcement 1S

CONCLUSION 19

PABLE OF AUTHORITIES

PAGE(S)

CASES

Alveska Pipeline Serv. Co. v. Wilderness Soc'y

471 U.S. EO CROTSS oc oe ec ee eens 10

Baker vo Dandar

158 F.3d S16 (ith Cir. 1998)... 0. ee ees IS

Carson Truckee Water Conservancy Dist.

v. Secretary of the Intertor,

748 F.2d 523 (Sth Cir. 19984). ........------ 11, 12,14

Christiansburg Garment Co. v. EEOC,

$34 U.S. 412 (9G7ER caine es passim

Doering vo Union County Bd. of Chosen Freeholders,

857 F.3d 898 (3G Cie. Ditee os c ae r ente 18

Fogerty v. Fantasy, Ine.,

$10 U.S. $27 (AGOGO «55s ee passim

Gwaltney of Smithfield, Lid. v. Chesapeake Bay

Found. Inc.

484 U.S. 9 (IGBEL. oc 05 ct tee ere cei ek 15, 16, 17

Hallstrom v. Tillamook County,

493 US. 20 (1989)

Hensley v. Eckerhart,

O61 U.S. 200 (ROR cn xeee ree a eee Is

il

Newman v. Piggie Park Enters., Inc.,

390. U.S. 400 (1968) i)

Pennsylvania v. Delaware Valley Citizens’ Council for

Clean Atr,

eT ee, EOE, nw ek ese ee eee es 12, 14

Razore v. Tulalip Tribes,

eT oR ys) ee ee rc 9

Ruckelshaus v. Sterra Club,

PT ee Oe a ee Seek ee 8,9, 16

Sierra Club v. Shell Oul Co.,

ay ee ee 8 eee Se Car, TORT)... we ee ee ee Y

STATUTES, RULES AND REGULATIONS

Oe NR a dak pee bes Vd en ea eee 12

ees wa vk ae wna x dee bees ee RO 13

I Eas oa ais ads 6 Gas nee Oe 13

ECR ok he ea eS dees ee sales 13

PS re ra Pa arena a eran cra rere ae 13

ly eS aaies eee ks ORE ReaD 13

Ce eran Sree ar cr ar ae ea 13

2g gi A a i ae arma ar er ire ee Is

ER iy eb re as Lak ane sy eae re bae 7

re ey he Va ke Mak ee es oe ew a 7

Se eg 4 eh eee ke OE 17

IV

Re en eka a ce Ree shew eee 2

A iia s Seok aly oe ee oe ei ee 17

SUG. 54 es PR ae Ee eS passim

NY Ne Ne 2 gg gee week SK One ee ee ee LO

SEA, eo ae oe a oe ee a ee es 13

SO A ee 5 a we te Oe Re 9

AZUSA. S$ 4321, e7 ee a eo ee ee oe re 7

Ne og ak a ore he ae a Os oe Rae eS Y

2 oC yk Se eee ee ee rd era a ee re 13

Uy OO cs oh we es oe ese 6 ew Rew eS 12

MISCELLANEOUS

iO0tCome, Mec. 12724 (19048). ow. oc ccc i eee ceca lo

S. Rep. No. 92-414 (1971). . oi ce cc ete cee eens 5

H.R. Rep. No. 94-1558 (1976)... 0... cece ences 15

IN THE

SUPREME COURT OF THE UNITED STATES

October Lerm 1999

No. 99-598

PACIFIC LUMBER COMPANY, a Delaware corporation,

SCOTIA PACIFIC COMPANY, LLC, a Delaware corpora

tion; and SALMON CREEK CORPORATION, a Delaware

corporation,

Petitioners,

\

MARBLED MURRELET (Brachyramphus marmoratus );

NORTHERN SPOTTED OWL (Strix occidentallis caurina);

and ENVIRONMENTAL PROTECTION INFORMATION

CENTER, INC.

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF AMICT CURIAE OF THE

AMERICAN FOREST & PAPER ASSOCIATION, NATIONAL

ASSOCIATION OF MANUFACTURERS, NATIONAL

CATTLEMEN’S BEEF ASSOCIATION, CALIFORNIA

CATTLEMEN’S ASSOCIATION, CALIFORNIA CHAMBER OF

COMMERCE, CALIFORNIA FARM BUREAU FEDERATION,

CALIFORNIA FORESTRY ASSOCIATION, CALIFORNIA MINING

ASSOCIATION, CONSTRUCTION MATERIALS ASSOCIATION

OF CALIFORNIA, MICHIGAN MANUFACTURERS

ASSOCIATION, WESTERN GROWERS ASSOCIATION and

WESTERN STATES PETROLEUM ASSOCIATION

IN SUPPORT OF PETITIONERS

ne ee eet

Amict curiae American Forest & Paper Association, ef al,

submit this brief in support of Pettioners Pacific Lumber Com

pany, eo al. (collectively “PALC( yy." Pheir petition seeks re-

view of the judgment and opimon of the United States Court of

Appeals tor the Ninth Circuit in Marbled Murrelet v. Babbut,

IS? B 3d 1LO8L (1999) (reproduced at Pet. App. at 3a- 10a)

More specifically, this case concems a private enforcement

action (ciizen suit’) under section Tig) of the Endangered

Species Act (ESA), 16 USC. § 154002), and that statute's

“tee shifting” provision, secuon | led)? Secon 11(g)(4), like

the citizen suit provisions of nearly all other federal environ

mental statutes, authorizes rermbursement of the prevailing

liigant’s legal expense by the losing party. Pettoners had been

the defendants below, and earlier Ninth Circuit decisions ad-

dressing the merits ruled in their favor. The court of appeals

found that the actions by PALCO at issue in the case had ad

vanced the purposes of the ESA and dismissed the opposing

clams of Respondents Environmental Protection Information

Center, Inc., eral. (collectively “EPIC,” the plaintiffs below) as

untenable. Thereafter, PALCO, as the prevailing party, sought

renmbursement of its attorney’s fees. Although ESA section

L1(2-4) does not describe different standards for renmbursement

of atlomey’s fees incurred by prevailing plainufts as opposed to

prevatling defendants, and the Ninth Circuit's standard for fee

shifting in favor of a prevailing citizen suit plainuff merely

requires that the suit furthered the goals of the underlying statute,

the Ninth Circuit ruled that PALCO would not be eligible for

"No portion of this bref was authored by counsel for a party, and no per-

son or entty other than the amuct curtae and their members have made a

monetary contribution to the preparation or submission of this briet. The

Petthoners and Respondents have consented to the filing of this bret and thei

respective letters of consent have been tiled with the Clerk of the Court.

“See LOU SC. § 1540(2)(4) (the district court's final order “may award

costs of ligation (including reasonable attorney and expert witness fees) to

any party, Whenever the court determines such award ts appropriite”’)

reimbursement of its legal expense unless it could prove that

EPIC’s citizen suit was frivolous and without foundation. Pet.

App. at 6a. The Ninth Circuit relied on this Court's Christians

burg decision and the so-called “dual” standard tor fee shifting

in favor of prevailing defendants in civil mghts cases. See

Christiansbure Garment Co. v. EEOC, 434 U.S. 412 (1978); see

also Foverty v. Fantasy, Inc., 51O U.S. 517, 520-21 (1994).

Like Petitioners, amici submit that the Ninth Circuit's ruling

IS erroneous, misconstrues decisions of this Court and contra-

dicts Congress’ intent regarding the role of citizen suit enforce-

ment under the ESA. Moreover, the implications of the Ninth

Circuit’s decision clearly transcend the ESA and can seriously

distort citizen suit enforcement under essentially all federal

environmental laws. Review by this Court ts necessary to ad-

dress these important matters.

STATEMENT OF INTEREST OF AMICI

A. Amici consist of voluntary business associations repre

senung a broad spectrum of commerce and industry in the

United States.

Amicus American Forest & Paper Association (“AF&PA”)

is the national trade associauion of the forest, pulp, paper, paper

board and wood products industry. AF&PA represents ap-

proximately 400 member companies and related trade

associations (whose memberships are in the thousands) which

erow, harvest and process wood and wood fiber, manufacture

pulp, paper and paperboard products from both virgin and recy-

cled fiber; and produce solid wood products. With an annual

payroll of approximately $46 billion, this vital national industry

accounts for over 8% of the total United States manufacturing

output, employs some 1.4 million people and ranks among the

top ten manufacturing employers in 46 states.

Amicus National Association of Manufacturers (“NAM”) 1s

the nation’s oldest and largest broad-based industrial trade asso-

4

ciation. Its more than 14,000 member companies and subsidiar-

ies, including 10,000 small manufacturers, employ approxt-

mately 85% of all manufacturing workers and produce over 80%

of the nation’s manufactured goods. More than 158,000 addi-

tional businesses are affiliated with NAM through its Associa-

tions Council and National Industral Council.

Amicus National Cattlemen's Beet Association (“NCBA”)

is the national marketing and trade association for America’s

approximately one million cattle farmers and ranchers. NCBA

is a consumer-focused and producer-directed organization repre-

senting the largest segment of the nation’s food and tiber indus-

try. Through the NCBA, cattkemen work to create positive

business conditions and provide stewardship for protection of

the land from which they make their living while providing

consumers with the finest beef products.

Another amicus, California Catthkemen’s Association

CCA”), is the principal advocate for California’s $1.32 billion

beef cattle industry, and represents CCA’s members—trom

rangeland producers to feedlot operators—on a vanety of legis-

lative, regulatory affairs and judicial matters. Nearly 40 million

acres of California rangeland are owned or, in the case of public

rangeland, managed by CCA members (half of that acreage 1s

privately owned). CCA members are dedicated to the steward-

ship of California’s natural resources and the production of

wholesome beef products for the state, national and intemational

markets.

Amicus Calitorna Chamber of Commerce (“Calitornia

Chamber’) is a statewide business association with more than

11,000 members, both individual and corporate, who represent

virtually every economic interest in the state. The Califormia

Chamber represents its members (9OC% of which are small- or

medium-sized businesses) before the Californta legislature, local

governments and the courts on a broad spectrum of legislative,

regulatory and judicial matters affecting its members.

Amicus Calitornia Farm Bureau Federation (“CFBF”) con-

sists Of 53 county Farm Bureaus, through which it represents

approximately 40,000 individual member farm and ranch fami-

hes i 56 California counties. CFBF's purposes are, among

others, to protect and advance the social, economic and educa-

ional interests of California farmers, including environmental

protection. CFBF’s member farmers and ranchers provide and

preserve habitat for many species of plants, fish and wildlife and

support such habitat by prudent resource management. More

than 90°% of the CFBF’s family farm and ranch members qualify

as small businesses under federal law, and are unable to absorb

the costs of defending unmeritorious claims under the Endan

gered Species Act. The threat of such claims has become a

powerful disincentive against providing wildlife habitat on

agricultural lands in California.

The diverse membership of amicus Calitornia Forestry As-

sociation (“CFA”) includes owners of forestland, forest products

manufacturers, biomass energy producers, professional foresters,

licensed loggers and wholesalers and retailers of forest products.

CFA serves as a central voice for California's forest resource

companies and provides a comprehensive range of services

including advocacy, coalition building and strategic program

development. Members manage their forestland to protect the

environment and produce a sustainable yield of umber for the

manutacture of forest products.

Amicus Calitornia Mining Association is a statewide organi-

zation dedicated to the advancement of responsible mining.

consistent with protection of the environment and other natural

resources, and the education of the public to the vital roles min

erals and mining play in our society. The mining industry di-

rectly contnbutes over $3 billion to the Califorma economy each

year,

Amicus Construchon Matenals Association of Caliomia

(CMAC™) represents aggregate and ready mix producers in

6

Northern California. CMAC was formed in February 1998 and

represents the largest geographic area of any similar organization

in the United States. CMAC members provide aggregate and

concrete products for roads and highways, residential and com-

mercial buildings and public and private water supply systems.

CMAC its an advocate for 1ts members before various forums,

including federal courts, on important issues of regulatory and

economic policy.

Another of the amici, Michigan Manufacturers Association

(“MMA”), is a business association of private Michigan employ-

ers studying matters of general interest to its members, promot-

ing their interests and the interests of all Michigan employers

and the general public in the proper administration of laws re-

lating to its members, and otherwise promoting the general

business and economic welfare of Michigan. MMA’s more than

4,000 members employ 90% of the industnal work force in

Michigan—over one million people. An important aspect of

MMA’s activities is representing its members as an amicus

curiae in a broad range of matters before the courts.

Amicus Western Growers Association (“WGA”) ts an agn-

cultural trade association whose California and Anzona-based

members are growers, packers and shippers of more than half of

the nation’s fresh produce. WGA was formed in 1926 in Calt-

fornia’s Imperial Valley as a marketing protective organization

to address escalating railroad transportation costs. Among

WGA’s services to 1ts members today is representation in a

vaniety of legislative, regulatory and judicial forums in important

matters of law and policy, such as this case.

Amicus Wester States Petroleum Association (“WSPA”) is

a trade association representing companies that produce, refine,

market and transport most of the crude oil, motor fuel and other

petroleum products in the western United States. One of

WSPA’s primary functions is to represent the interests of its

members in regulatory and judicial proceedings, such as this

case, which present issues having considerable importance to the

petroleum industry.

B. Amici and their members are ¢ommitted to the goals of

the ESA and all other federal and state «.:ws for the protection of

the environment. To that end, amici’s members routinely spend

vast sums. Nevertheless, just as in this case involving PALCO,

amict’s members have been (or presently are) defendants in

citizen enforcement suits under the ESA or other federal envi-

ronmental statutes. The citizen suit provisions of these statutes

routinely provide for fee shifting, in the same manner as section

11(g)(4) of the ESA.

EPIC’s suit against PALCO related to PALCO’s harvesting

of timber in northern California, which is subject to comprehen-

sive regulation by the California Department of Forestry. Where

a “threatened” or “listed” species under the ESA may exist

within a proposed harvest area, California regulations mandate

procedures in a timber harvest plan to avoid a “take” of those

species. See 16 U.S.C. § 1538. The adequacy of the procedures

must be verified in advance, and one method for doing so ts to

obtain the concurrence of the U.S. Fish and Wildlife Service

(“FWS”) that the procedures will avoid such “takes.” In this

case, FWS reviewed PALCO’s harvest plan and confirmed (after

certain suggested modifications were made) that the plan was

acceptable. In response, EPIC filed a citizen suit claiming that

FWS’ concurrence was “agency action” within the meaning of

ESA section 7(a)(2), 16 U.S.C. § 1536(a)(2). In addition. EPIC

claimed that PALCO’s proposed logging operations would by

definition constitute “takes” of threatened species.”

Reversing district court rulings, the Ninth Circuit concluded

that EPIC had failed to allege any claims against PALCO (or the

FWS) that were serious or a fair ground for litigation. See Pet.

EPIC also claimed that FWS* concurrence was a major federal action

under the National Environmental Policy Act, 42 U.S.C. § 4321 er seq., Which

would require preparation of an environmental impact statement.

App. at da, -bsatoa, 7a, SOa-S ta, S3ao Instead, the Ninth Cir

curt recognized that PWS* concurrence regarding the adequacy

of procedures to avoid “takes,” provided in response to

PALCO?’s request, did not transform the timber harvest plan into

federal agency action, and timber harvesting on private Lands

remamed a matter of exclusive state regulation. In addition, the

Ninth Circurtemphasized that protection of endangered species

had been enhanced by communication between PALCO and

EWS, while the burdensome ESA section 7 procedures EPIC

sought to cngratt would undermine the ESA's objectives. dd. at

SSa.

As the prevailing party, PALCO applied to the district court

for recovery of its attorney's tees. Phe district court reyected

PALCO?’s request, ruling that ESA citizen suits should be go

erned by the Christiansburg “dual” standard tor tee shifting in

civil rights cases, under which a defendant can recover its tees

only where the plainttt’s Lawsuit was frivolous, unreasonable ot

without foundation, On appeal, the Ninth Circuit agreed wath

the district court and ruled that C/liristiansburg 'y dual standard

tor tee shifting should extend to suits under ESA’ section

Liqgd¢-b) and by impheation to virtually all other environmental

CHuzen sults.

As amuct explain below, the dual standard that the Ninth

Circuit adopted in this case for purposes of section LIC)

contradicts the statute's plain meaning and is not supported by

any policy objectives underlying the statute. Phe importance ot

this issue ts considerable and clearly transcends the ESA. In that

regard there are more than [50 tee shitting provisions in federal

statutes, see Ruckelshaus vo Sterra Club, 403 U.S. O80, OS4

(1983), and such provisions are commonly tound in antitrust,

evil aghts, copyright and trademark, and cnavironmental laws.

As an example, the Ninth Circuits decision concermming the ESA

directly attects the tee shitting provisions of more than a dozen

other environmental statutes, each of which are virtually ident

9

cal to section EL(g)(4), id. at 682 not, and are often interpreted

in part materia. See Hallstrom v. Uillamook County, 493 U.S

20, 23-25 (1989).

As Petitioners note (Pet. at 12-13), lower court decisions re-

garding tee shifting in environmental citizen suits are tinconsis

tent. Kor example, Sterra Club vy. Shell Oil Co., 817 F.2d 1169

(Sth Cir, 1987), upheld an award of htugation costs to a prevail

ing defendant in reliance on 33 USC. § 1365(d), the fee shifting

provision of the Clean Water Act's citizen suit statute, without

suggesting that different standards for such awards apply to

prevathing defendants as opposed to prevailing plainutts (nor

were such standards otherwise discussed). Other decisions

interpreting the same statutory language adopt a dual standard

under which a successful ciazen suit plaintiff is entitled to re

covery of tts attorney's tees by virtue of prevailing-party status,

While a successful defendant can recover its fees only by proving

that the plainttl’s suit was trivolous. See, ¢.g., Razore v. Tulalip

Inibes, 66 F.3d 236 (9th Cir. 1995) (interpreting tee shifting

provisions of Clean Water Act, 33 U.S.C. 1365(d), and Resource

Conservation and Recovery Act, 42 U.S.C. § 6972(¢)). The need

for clartication by this Court increases as additional statutes,

such as the ESA tn this case, are added to the mix. Given the

frequency of environmental citizen suits, uncertainty regarding

the standard tor tee shifting for prevailing defendants 1s likely to

continue to resultin considerable litigation absent resolution by

the Court.

REASONS FOR GRANTING THE WRIT

A. The Judicial Standard For Fee Shifting To Prevailing

Citizen Suit Defendants [s An Important Issue That

Requires The Court's Attention

This case provides a unique opportunity to clanfy the inter-

pretation of fee shitting statutes, which authorize district courts

to depart trom the “American Rule” and award attorney's fees

10

and other htigation costs to prevailing parties.” The Court

should decide which of (wo conthicting mterpretations of similar

tee shifting statutes applies to the award of attorney's fees to

defendants in environmental ligation,

In L97S the Court announced in Christiansburg the dual

standard under which planttts who prevail in employment

discrimination litigation under Pithle VILot the Civil Rights Act

of 196-4 are ordinantly awarded attorney's fees, but a prevailing

defendant may recover such tees only if the plainttf’s action was

“trvolous, unreasonable, or without foundation, even though not

brought in subjective bad faith” Christiansburg, 434 U.S. at

421. Sixteen vears later in Foverty vo Fantasy, Inc., S10 US.

S17, the Court concluded that prevailing parties in copyright

htgation — plantitts aad detendants — must be treated alike, and

reyected the view that the Copyright Act's fee shifting provision,

L7 USC. § S05, either compelled or permitted the courts to look

more favorably upon an attorney's fee request by a prevarling

plantitt as compared to a prevatling defendant”) Fogerty em

phasized that section 505 “gives no hint that successful plaintitts

are to be treated differently than successful defendants.” S10

US. ats22. Fogerty then distinguished Christiansburg despite

the similanty in the language of the fee shifting provisions of the

Copyright Actand Tithe Vilbot the Civil Rights Act. The Court

noted that “a Title VIE phunttt 2. 1s ‘the chosen instrument of

Congress to vindicate “a policy [of equality] that Congress

een)

considered of the highest priority. fd. at 523 (quoting Chris

nunsburg, 4340S. at 48). Fogerty further explained that

[o]ften-times, in the civil rights context, mmpecunious

... phanttts can all afford to litigate their claims against de

4 4: ’ :

The general rule in the United States is that ligants pay their own attor

ney's tees, absent legislation providing otherwise. AlvesAa Pipeline Serv. Co

vo Wilderness Soc'v, 421 US) 240 (1975)

.

17 USC. $505 provides that the court may award “a reasonable attor

Nev's fee to the prevatling party as part of the costs” of a civil action under the

Copyright Act

11

fendants with more resources. Congress sought to redress

this balance in part, and to provide incentives tor the bring-

ing of meritorious lawsuits, by treating successtul plamtutts

more favorably than successtul defendants.

SIO. ULS. at 524. The Court found that the factors relied upon tn

Christansburg were “absent in the case of the Copyright Act.”

Md. at 523. It also observed that Congress could not have tn-

tended to incorporate its Christiansburg holding into secuon 505

of the Copyright Act because Christiansburg was decided two

years after Congress enacted that provision. See td. at 523 19.

Justice Thomas concurred in the Fogerty result: but con

cluded that the mayority’s statutory analysis was flatly inconsis-

tent with Christiansburg. See td. at 535. He reasoned that the

plain language of both statutes required the application of an

evenhanded rule and opined that the Court “should acknowledge

that Christiansburg mistakenly cast aside the statutory language

to give effect to equitable considerations.” /d. at 538. Justice

Thomas stated that, while stare decisis might counsel against

overruling Christiansburg, he would “decline to extend Chris-

tiansburg’s analysis to other contexts.” Jd. at 539,

The Court has not addressed the question of whether the

Christiansburg dual standard or the Fogerty evenhanded stan-

dard applies to the neutrally worded fee shifting provisions of

the ESA and other environmental laws, and there 1s tnconsts-

tency and uncertainty in the lower federal courts over which

standard should apply. While Fogerty teaches that Christians-

burg is the product of “important policy objectives of the civil

rights statute,” td. at 523, and certainly does not automatically

apply outside the civil mghts context, in this case the Ninth

Circuit, without even mentioning Fogerty, overruled its prior

decision in Carson- Truckee Water Conservancy Dist. v. Secre-

tary of the Interior, 748 F.2d 523 (9th Cir. 1984), which had

refused to apply Christiansburg in determining whether to award

attorney's fees under the ESA. The fatal flaws in the decision

| y

below, which this Court should correct, are the Ninth Circuit's

farlure to consider and apply the reasoning of Fogerty and tts

nusplaced relance on dicta in Pennsvivanta v. Delaware Valley

Citizens’ Council for Clean Air, A478 US. 5-40 (T9806).

B. The Ninth Circuit Failed To Follow The Analysis Set

Forth In The Court's Fogerty Decision

The Ninth Circuit failed at the outset to follow the most ba-

sic teaching of Fogerty, that is, to begin its analysts by examia

inv the language of the statute. In that regard, section 112-4)

of the ESAs unabashedly neutral and makes no distinction

between prevailing plantiftts and detendants. The statute,

moreover, is clear in providing that the award of attorney's fees

and other costs ts discretionary — fees “may” be awarded “where

appropriate” In short, pust as the Court found in Fogerty with

respect to the Copyright Act. the tee shifting provision of the

ESA “gives no hint that successtul plaintitts are to be treated

differently trom successtul defendants.” STO ULS. at 522. In-

deed. in Carson: Truckee, based on a similar analysis, the Ninth

Circutt had tself apphed an evenhanded standard. See 748 F.2d

at S25-26

The Ninth Circuit also tailed to consider the tact that Con-

gress Knew how to differentiate between plaintiffs and deten

dants in awarding attorney's fees when it wanted different

standards to apply. Under the Government in the Sunshine Act,

litigation costs, including attorney's fees, may be awarded to the

substantially prevailing party, “except that costs may be assessed

against the plaintitt only where the court tinds that the suit was

imitated by the phaunttt prrmarnily tor trivolous or dilatory pur-

poses. SUS.C.§ S52b0). Similarly, under the Natural Gas

Pipeline Satety Act, 49 USC. § OOLIT(b). a court may, “in the

interests of justice” award attorney's fees in citizen suits to a

prevailing plainttt, but a prevailing defendant may be awarded

such costs only if the planttt’s action was “unreasonable,

frivolous, or meritless.” As a turther example, in cases involvy-

13

ing antitrust claims under the National Cooperative Research and

Production Act, Congress provided that the district court “shall”

(1) award to a substantially prevailing clammant the cost of

suit attributable to such claim, including a reasonable at

tomey s tee, or

(2) award to a substantially prevailing party detending

against any such claim the cost of suit attributable to such

claim, including a reasonable attorney's fee, if the clam,

or the claimant's conduct during the litigation of the

claim, was frivolous, unreasonable, without foundation,

or in bad faith.

IS USC. § 4304¢a) (emphasis added): see also 1S USC.

S$ ISe(d) (in antitrust actions brought by a state, courts may

award fees to prevailing defendant tf “the State attorney general

has acted in bad faith, vexatiously, wantonly, or for oppressive

reasons 9, 31 ULS-C. § 37 30(d)(4) Cin quit fam action courts may

award fees to prevatling defendant if plainttf’s claim “was

clearly frivolous, clearly vexatious, or brought primarily tor

purposes of harassment”), 42 U.S.C. § TELLS Gin antitrust ac-

tions under Health Care Quality Improvement Act, courts shall

award fees to prevailing defendant if plainttf's claim was

“frivolous, unreasonable, without foundation, or in bad faith”);

IS U.S.C. § L692k(a(3) Gin private acuon under Fair Debt

Collection Practices Act. courts “may award” fees to a success-

ful defendant on a finding that plainuff's action “was brought in

bad faith and for the purpose of harassment”); 15 U.S.C. §

1693m(f) (courts “shall” award fees to prevarling defendant in

private acuion under the Electronic Fund Transter Act upon

finding that the “unsuccessful action” was brought “in bad faith

or for purposes of harassment”): 15 U.S.C. $$ 36084), 361 1d)

(defendant in suit under Condominium and Cooperative Abuse

Rehet Act may recover reasonable fees where court finds that

plainuff’s action was “frivolous, malicious, or lacking in sub-

stantial ment”). In sharp contrast to these statutes, Congress

~~

i-t

made no distinction between plamtitts and detendants when 1

enacted the tee shifting proviston of the ESA. This strongly

supports the conclusion that Congress did not intend the dual

standard that has been adopted by the Ninth Circuit in this case.

Pinally, the Ninth Circuit applied the Christiansburg stan

dard in reliance on this Court's decision ino Pennsylvania v.

Delaware Vallev Cittcens’ Council for Clean Air, 478 US. 5-46,

Which, according to the Ninth Circuit, had “essentially over

ruled” its own decision in Carson-lruckee. Pet. App. at Sa.

Veit submit that the Ninth Circuit misinterpreted Delaware

Valley, especially in view of the more recent Fogerty decision.

burst, the issue in Delaware Valley was not whether Cliristianys

burg should be applied to prevailing defendants in environ

mental litigation. Rather, the issue was whether a prevailing

plantitt could recover attorney's fees for participation man

adnunistrative proceeding, and whether the district court im

properly increased tees above the lodestar. See #78 U.S. at 557

SS. Purthermore, insotar as dicta in Delaware Valley suggests

that the fee shifting provisions in civil mghts and environmental

legislation should be interpreted stmiiarly, Fogerty counsels that

acloser and more critical examination of the structure and pur-

poses of the statutory schemes and their similarities and differ

ences is inorder. Although the Ninth Circuit's decision here

suggests a “common purpose” between the Civil Rights Act and

the ESA, that statement appears to be an extrapolation from the

deta in Delaware Valley rather than the product of a thorough

analysis of the two statutes. Moreover, as avicr show in the next

section, this Court's decisions subsequent to Delaware Valley

demonstrate that private enforcement of the civil nghts laws

serves a fundamentally different role than citizen enforcement of

the ESA and other environmental laws.

C. The Ninth Circuit’s Dual Standard Is Inconsistent

With Congress’ Determination That Citizen Suits

Are Limited To A Supplementary, Interstitial Role In

Environmental Enforcement

Phe Ninth Circuit fundamentally misconstrued the intent of

Congress when tt stated that the Civil Rights Act provisions

addressed in Christiansburg and the Endangered Species Act

eluzen suit provisions underlying this case “have a common

purpose.” See Pet. App. at 8a. Although not considered by the

Ninth Circuit, a predicate for Christiansburg ‘sy dual standard tor

fee shifting was the fact that the individual private plamnttts

favored by the dual standard were “the chosen instrument of

Congress to vindicate “a policy that Congress considered of the

highest priority.” Christiansburg, 434 U.S. at 418 (quoting

Newman v. Pregte Park Enters., Inc., 390. U.S. 400, 402 (1968 ));

see also TLR. Rep. No. 94-1558, at 1F (1976) CL P]he effective

enforcement of Federal civil rights statutes depends largely on

the efforts of private cizens.”). In stark contrast, there 1s noth

ing in the legislative history of the Endangered Species Act (or

any other environmental statute) to suggest that private plaintiffs

Were Congress’ chosen instruments” tor enforcement or that

Congress intended to “depend largely on private plainttts” to

entorce environmental laws. Quite the contrary, Congress in-

tended a limited “interstitial” role for environmental citizen

suits——“to supplement rather than supplant governmental ac-

tion.” Gwalmey of Smithfield, Lid. v. Chesapeake Bay Found.,

Inc., 484 U.S. 40, 60-61 (1987). Given the “supplementary

role” Congress intended for such suits, they are proper only

Where government enforcement agencies “fail to exercise their

enforcement responsibility.”” /d. (quoting S. Rep. No. 92-414,

at 64 (L971): see also Hallstrom v. Tillamook County, 493 U.S.

20, 29 (1989) (primary responsibility for enforcing environ-

mental laws ts vested in government agencies, “thus obviating

io

the need for citizen suits”) Thus, tar trom sharing a common

purpose, the private enforcement provisions of the federal civil

{

ryhts and environmental laws have very different purposes

The Ninth Circuits dual standard has the pernicious effect

of encouraging the “potentially intrusive and) burdensome

ciizen suit higation that Congress mtended to avoid. See Hall

strom, FOS LS. at 29) Gawaliney, AS4 US. atOl. This case ts a

clear example. Nothing in the various ESA and NEPA clams

that Respondents pursued against PALCO and the federal gov

ermment amounted to a serious question justifying litigation, as

the Ninth Circunt repeatedly acknowledged. See. eog.. Pet. App.

at 45a (reyecting Respondents’ strained argument “that the State

of Calitormia can somehow ‘delegate’ its authority to intluence

private action to the federal government”); see also supra p. 8.

In tact, EPIC’s claims, if they had been sustained by the courts,

would have clearly undermined the ESA's objectives, while the

actions of Petthoners challenged below by EPIC most assuredly

advanced the protections to which the ESA ts directed. The

court of appeals emphasized these points in reyecting EPIC's

ESA contentions as untenable:

Protection of endangered species would not be enhanced

by arule which would require a tederal agency to perform

"Nor are environmental citizen suit plamntutts analogous to the ““umpecunt

ous” plantitts that have often been the object of civil nights violations. See

Fogersy, SIOUS at S24. see alyo Christransburg, 434 US. at 420 (plain

att}s| of lumited means” are the focus of the Civil Rights Act's tee shitting

provision) (quoting Remarks of Senator Humphrey, 110 Cong. Ree. 12724

(19s) Environmental ciazen suits, on the other hand, are frequently

brought by Large organizations with substantial budgets and equally substan

tial membership bases. Yee Pet at 20-210 In tact. the forestry property that

underlies this case has alone been the subject of more than 1S lawsuits by

Respondent EPIC. See id. ato n7

\s a turther indication of the very different posture of civil rights suits in

comparison to environmental crazen suits, acivil nghts planttt is eligible tor

a tee award even if its success Was only nominal or technical in nature, see

Christraburg, 434 US. at tlo. while tee shitting in environmental citizen

suits is not authored where litigation success Was merely technical or proce-

dural Rucdkelyhaus, 4603 US. at O88 19

17

the burdensome procedural tasks mandated by section 7

sunply because itt advised or consulted with a private party.

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

such advice or consultation. Moreover, private parties who

wanted advice on how to comply with the ESA would be

loath to contact the USEWS tor tear of triggering burden

some bureaucratic procedures. As a result, desirable

communication between private entities and federal agen

cies on how to comply with the ESA would be stifled, aad

protection of threatened and endangered spectes would

suffer.

Pet. App. at 83a (emphasis added). The Ninth Circuit's dual

standard tor tee shifting clearly encourages such counterproduc

tive litigation.

Sunply put, Congress” determination that environmental cit

zen suits, such as suits under ESA section L1(2)(4), should serve

a “supplementary” or secondary role, see Gwalmey, 484 US. at

60, cannot be squared with the Ninth Circuit's position dimin

ishing the value of a vigorous defense challenging untenable

claims, such as those presented in this case by Respondents. It

thus bears emphasis that the ESA has various goals which are

quite distinct trom citizen suit enforcement, such as voluntary,

incentive-based conservation programs, see 16 U.S.C. §

1531(a)(5),” and placing principal enforcement responsibility

with the secretanes of the Departments of Commerce and Inte-

nor. See 16 U.S.C. § [540(e), (22) (enforcement by United

States precludes citizen suit). Given those distinct goals, cituzen

suit “defendants who seek to advance . . . meritorious . . . de-

fenses [thereby vindicating tie ESA’s other goals] should be

encouraged to litigate them to the same extent that plaintiffs are

encouraged to litigate meritorious claims.” Fogerty, 510 U.S. at

4

See also Hallstrom, 493 U.S. at 29 (achieving compliance through ad-

mimistratve action “eliminate|s] the need for any access to the courts”).

Is

Hinally, the evenhanded tee shifting standard advocated by

Pethhhoners and aauct will not deter mertorious citizen suit

clams and wall protect vartous interests that EPIC can be ex

pected to raise in opposition to the petition in this case. In that

regard, it should be noted that fee awards are not a matter of

rght and are, instead, discretionary with the district courts.

Phere is no precise rule or formula tor such determimations— the

district courts exercise their discretion in light of a variety of

equitable considerations and based on the circumstances of the

case. See Hensley vo kckerhart, 401 US. 424, 430-37 (1983);

see also Doering vo Union County Bd. of Chosen breeholders,

S57 F.2d 191, 195 (3d Cir. L988) (given that fee shifting ts

discretionary, equitable considerations govern). The plaintitt’s

ability to pay, impact on its ability to bring meritorious suits, and

other factors may be appropriate considerations ina given case

and would affect a tee award to a prevailing defendant. See 857

Be2d at 197) see also Baker v. Dandar, 158 F.3d S16, 528-29

(Lith Cir. L998). The Ninth Circuit's dual standard, on the other

hand, preempts consideration of such factors regardless of the

circumstances, and, in practical effect, means that a prevailing

ciuzen suit defendant will rarely, if ever, recover its fees.

In sum, the Ninth Circuit's dual standard for fee shifting in

environmental ciuzen suits creates considerable uncertainty and

raises significant issues that will continue to be litigated until

resolved by this Court.

EE ea Ce

CONCLUSION

For the reasons stated above, the petition for a writ of cet

tioran should be granted.

Respecttully submitted,

Score M. DUBOEE*

JEEEPREY D. KOMAROW

WRIGHT & TALISMAN, PLC.

1200 G STREET, N.W

SUITE 600

WASHINGTON, DC) 20005-3802

(202) 393-1200

Counsel for Amict Curtae

American Forest & Paper

Association, et al.

| ‘counsel of Record