# Amicus Curiae Brief — Pacific Lumber Co. v. Marbled Murrelet > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0173%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2000 - **Citation:** 528 U.S. 1115 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0173%3A4. Public record. Not legal advice.