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Sierra Club Northstar Chaper v. Kimbell: US District Court : FEES - no Equal Access to Justice Act award; Forest Service justified or reasonable whether viewed issue-by-issue or holistically

Sierra Club Northstar Chapter,
Friends of the Boundary Waters
Wilderness, Defenders of Wildlife,
The Wilderness Society, and
Northeastern Minnesotans for
Case No. 07-3160 ADM/RLE
Abigail R. Kimbell, as Chief of the
U.S. Forest Service, and Ed Schafer,
as Secretary of Agriculture,
Minnesota Forest Industries, Inc.,
Minnesota Timber Producers
Association, St. Louis County,
and Lake County,
Mark Holsten, as Commissioner
of the Minnesota Department of
Natural Resources,
Amicus Curiae.
Brian B. ONeill, Esq., Richard A. Duncan, Esq., and Peter Hennigan, Esq., Faegre & Benson
LLP, Minneapolis, MN, on behalf of Plaintiffs.
David W. Fuller, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf of the
federal Defendants.
This matter is before the Court for consideration of Plaintiffs Sierra Club Northstar
Chapter (Sierra Club), Friends of the Boundary Waters Wilderness (Friends), Defenders of
Wildlife, The Wilderness Society, and Northeastern Minnesotans for Wilderness (collectively
Plaintiffs) Motion for Fees and Other Expenses [Docket No. 112]. In their Motion, Plaintiffs
seek 0,351.18 from the federal Defendants (the Forest Service) for attorneys fees and
other expenses incurred as a result of challenging the Forest Services decision to conduct timber
sales and road building in the Echo Trail Area Forest Management Project (Echo Trail Project
or Project) in the Superior National Forest. For the reasons set forth below, Plaintiffs Motion
is denied.
The factual and procedural background is set forth in the Courts September 15, 2008
Order [Docket No. 110] and is incorporated herein. In that Order, the Court granted Plaintiffs
summary judgment on Count One of the Amended Complaint [Docket No. 48], which alleged
violations of the National Environmental Policy Act, 42 U.S.C. 4321-4370f (NEPA).
September 15, 2008 Order at 7, 14. The Court concluded that the Forest Service violated NEPA
by failing to take a hard look at the impacts of the Echo Trail Project on water quality and
watershed health in the Boundary Waters Canoe Area Wilderness (Boundary Waters) in its
Final Environmental Impact Statement (FEIS). Id. at 10-11, 14. The Court granted the Forest
1 Count Two was dismissed without prejudice. September 15, 2008 Order at 16.
Plaintiffs voluntarily dismissed Count Four with prejudice. Id. at 5.
Service summary judgment on Counts Three and Five.1 Id. at 16-20. Plaintiffs Motion for Fees
and Other Expenses followed.
Plaintiffs seek attorneys fees and other expenses under the authority of the Equal Access
to Justice Act (EAJA), 28 U.S.C. 2412. Under the EAJA, a prevailing party is entitled to an
award of fees and expenses in any action brought by or against the United States unless the
court finds that the position of the United States was substantially justified or that special
circumstances make an award unjust. U.S. S.E.C. v. Zahareas, 374 F.3d 624, 626 (8th Cir.
2004) (quoting 28 U.S.C. 2412(d)(1)(A)). The Forest Service does not dispute that Plaintiffs
are prevailing parties within the meaning of the EAJA. See Federal Defs. Resp. to Pls.
Motion for Fees [Docket No. 117] at 9. However, the Forest Service argues that attorneys fees
and expenses should not be awarded because its position was substantially justified.
A. The Substantially Justified Standard
The test of substantial justification is essentially one of reasonableness. See Pierce v.
Underwood, 487 U.S. 552, 563-64 (1988). A position is substantially justified if it has a
reasonable basis both in law and fact, or if it is justified in substance or in the main.
Zahareas, 374 F.3d at 626 (quoting Pierce, 487 U.S. at 565). Even if the governments position
ultimately turns out to be incorrect, it can be substantially justified as long as a reasonable
person could think it correct. Id. (quoting Pierce, 487 U.S. at 566 n.2). The most powerful
indicator of reasonableness of an ultimately rejected position is a decision on the merits and the
rationale which supports that decision. Friends of the Boundary Waters Wilderness v. Thomas,
53 F.3d 881, 885 (8th Cir. 1995). The burden is on the Forest Service to prove that its position
was substantially justified. See id.
As an initial matter, Plaintiffs contend that Eighth Circuit precedent requires that the
Forest Service show that its position was clearly reasonable, a formulation of the substantially
justified standard that derives from United States v. 1,378.65 Acres of Land, 794 F.2d 1313,
1318 (8th Cir. 1986). Plaintiffs maintain that this formulation imposes a more stringent
standard for the test of substantial justification than that described by the Supreme Court in
Pierce. Pls. Reply Mem. in Supp. of Mot. for Fees [Docket No. 121] at 2. In support, Plaintiffs
rely on a comment in Harmon v. United States ex rel. FMHA that the clearly reasonable
standard appears to be a more difficult standard for the government to meet than the Supreme
Courts 1988 formulation in [Pierce]. 101 F.3d 574, 587 n.10 (8th Cir. 1996).
Although the Harmon court decided to apply the clearly reasonable formulation because
it seem[ed] to be more favorable to [the plaintiff], the court did not conclude that it is a more
stringent standard than the Supreme Courts formulation in Pierce. Id. Had the Harmon court
reached such a conclusion, as Plaintiffs maintain it did, the court would have been bound to
abandon the apparently more stringent formulation of clearly reasonable in favor of the
Supreme Courts more recent and apparently less stringent formulation in Pierce. See Northwest
Airlines, Inc. v. Air Line Pilots Assn Intl, 373 F.2d 136, 140 (8th Cir. 1967) (When the
Supreme Court has spoken clearly upon the most recent occasion on which the pertinent issue
has been considered, lower courts are bound to follow the pronouncements of law made.); see
also Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13 (1994) (It is [the Supreme] Courts
2 In interpreting substantially justified as requiring a showing that the governments
position was clearly reasonable, the Eighth Circuit in 1,378.65 Acres relied on a 1985 report of
the House Judiciary Committee that stated that the test must be more than mere
reasonableness. 794 F.2d at 1317 (quoting H.R. Rep. No. 120, at 9). The court concluded that
this language showed that Congress did not intend a reasonableness standard for substantial
justification of government action to be weak or relaxed, and, accordingly, the Government
must now show not merely that its position was marginally reasonable; its position must be
clearly reasonable, well founded in law and fact, solid though not necessarily correct. Id. at
1318. In Pierce, however, the Supreme Court rejected the view that the House report should
control the construction of the statute and demanded a construction of substantially justified
that required the government to show something more than reasonableness. 487 U.S. at 566-67.
In short, even if Plaintiffs are correct that the Eighth Circuit originally adopted the phrase
clearly reasonable to increase the stringency of the substantially justified standard, the basis
for imposing such an increase in stringency (the 1985 House report) has since been
unequivocally rejected by the Supreme Court.
responsibility to say what a statute means, and once the Court has spoken, it is the duty of other
courts to respect that understanding of the governing rule of law.).2 Contrary to Plaintiffs
assertions, the case law supports the view that the clearly reasonable standard, as it has been
applied in the Eighth Circuit, is no different than the Supreme Courts explanation of the
substantially justified standard in Pierce. See Friends, 53 F.3d at 885 (referring to both the
clearly reasonable articulation and the Pierce articulation in explaining the substantially justified
standard); S.E.C. v. Comserv Corp, 908 F.2d 1407, 1411-12 (8th Cir. 1990) (same); Sullivan v.
Sullivan, 738 F. Supp. 332, 333 (W.D. Miss. 1990) (A partys position is substantially justified
if it is justified to a degree that could satisfy a reasonable person, or [i]n other words, the
government must show that its position was clearly reasonable . . . .) (quotations omitted).
The parties next dispute the proper scope of the Courts inquiry under the substantially
justified standard. Plaintiffs argue that the inquiry is limited to only the Forest Services position
with respect to the issue on which Plaintiffs prevailedthe claim that the Forest Service violated
NEPA by failing to take a hard look in the FEIS at the impacts of the Echo Trail Project on
water quality and watershed health in the Boundary Waters. The Forest Service disagrees and
argues that the proper inquiry evaluates whether it was substantially justified with respect to its
position on the litigation as a whole, not with respect to its position on one particular issue.
Some courts have adopted the view that when determining whether the governments
position in a case is substantially justified, we look beyond the issue on which the petitioner
prevailed to determine, from the totality of the circumstances, whether the government acted
reasonably in causing the litigation or in taking a stance during the litigation. Roanoke River
Basin Assn v. Hudson, 991 F.2d 132, 138 (4th Cir. 1993); see also Jackson v. Chater, 94 F.3d
274, 279-80 (7th Cir. 1996) ([B]eing incorrect on one point does not translate into lacking
substantial justification for ones litigation position during the entirety of a civil action.);
Corona v. Barnhart, 431 F. Supp. 2d 506, 513-14 (E.D. Pa. 2006) (adopting a version of the
Fourth Circuits approach in Roanoke and considering the governments position on all of the
arguments). Other courts have taken the contrary view. For example, the District of Columbia
Circuit, in rejecting an approach similar to the Fourth Circuits approach in Roanoke, held:
[I]t cannot be the case that Congress intended that a party who
prevails on an essential ground of a petition to set aside government
action cannot recover the congressionally contemplated fees because
the governments action was substantially unjustified on only one of
several possible bases. Virtually any government action is either
grouped with other actions or is a component of some greater action.
Presumably the government is usually substantially justified on most
of its actions. If a litigant who has successfully challenged a
government action as substantially unjustified and achieved a
complete victory in terms of the relief prayed cannot recover EAJA
fees because of this well-nigh universal grouping, then Congresss
enactment of the EAJA becomes a virtual nullity.
Air Transp. Assn of Canada v. Fed. Aviation Admin., 156 F.3d 1329, 1332 (D.C. Cir. 1998);
see also Goldhaber v. Foley, 698 F.2d 193, 197 (3d Cir. 1983) (holding that it would be
3 In Commissioner, INS v. Jean, the Supreme Court commented that [w]hile the parties
postures on individual matters may be more or less justified, the EAJAlike other fee-shifting
statutesfavors treating a case as an inclusive whole, rather than as atomized line-items. 496
U.S. 154, 161-62 (1990). In light of this language, one court has questioned the continuing
validity of Goldhaber. See Utu Utu Gwaitu Paiute Tribe v. Dept of the Interior, 773 F. Supp.
1383, 1387 (E.D. Cal. 1991) (stating that the Supreme Courts decision in Jean breath[ed] new
vitality into the dissent in Goldhaber which suggested that the [EAJA] contemplates a view of
the entire proceedings rather than an issue-by-issue analysis) (quotation omitted).
incongruous to deny fees to a prevailing party who identifies and defeats one unreasonable
government position simply because the government has substantial justification for defending a
second claim in the same action).3
Plaintiffs argue that the Eighth Circuit has rejected an approach that considers the
question of substantial justification in view of the totality of the circumstances in favor of an
approach that considers only the issue on which the plaintiffs prevailed. In support of their
argument, they point to language in Zahareas stating that [t]he most powerful indicator of an
ultimately rejected position is a decision on the merits . . . . 374 F.3d at 627 (quoting Friends,
53 F.2d at 885) (emphasis added). The Court does read this language as demonstrating that the
Eighth Circuit has decidedly rejected a holistic approach to the question of substantial
justification. In fact, other language in Zahareas suggests that the Eighth Circuit most certainly
does consider the question of substantial justification in view of the totality of the circumstances:
[W]e must fully analyze the facts and law under the applicable
standards. In addition, we have the benefit of looking at the case in
its entirety, reviewing all the issues presented and the [governments]
actions both prior to and during litigation. From this vantage point,
we find that the [governments] case was not substantially justified.
Id. at 628 (emphasis added).
Ultimately, whether the substantially justified inquiry should be conducted on an issueby-
issue basis or by taking a more holistic view of the governments position in bringing about
or continuing the litigation is, at least in this circuit, open to debate. Perhaps a better way of
conducting the analysis would be to adopt an approach somewhere between Plaintiffs and the
Forest Services urged approaches. See Roanoke, 991 F.2d at 139 (suggesting that the inquiry
includes a sliding scale in which an unreasonable position on a single but important issue could
taint the governments position in the entire case as unreasonable, whereas a totally
insupportable and clearly unreasonable position by the government on an inconsequential aspect
of the litigation might not). But the Court need not decide which approach to adopt because
even under the approach urged by Plaintiffs, which focuses only on the one count on which
Plaintiffs prevailed in a five-count complaint, the Forest Services position on that issue was
substantially justified.
B. Application of the Standard
The FEIS concluded that although the project created the risk of some minimal direct and
indirect negative effects on water quality and watershed health occurring within the Project area,
there was no risk of any cumulative impacts on water quality or watershed health occurring
within the Project area. In claiming a violation of NEPA, Plaintiffs contended that the FEIS
failed to consider whether the risk of minimal negative effects on water quality and watershed
health within the Project area might also pose a risk of negative effects on water quality and
watershed health within the Boundary Waters. The Forest Services position was that because
the FEIS concluded that the minimal negative effects would not result in any cumulative impacts
on water quality or watershed health within the Project area, the natural inference is that there
would be no cumulative impacts on water quality or watershed health within the Boundary
Waters. Therefore, the Forest Service reasoned, the FEIS was not deficient in failing to
expressly address the effects of the Project on water quality and watershed health within the
Boundary Waters.
The Court ultimately rejected the Forest Services argument, concluding that the FEIS
failed to adequately explain why the negative effects on water quality and watershed health
within the Project area would not be felt within the Boundary Waters and would not result in
cumulative impacts there. The Court noted that [a]n objective of an EIS is to inform and assure
the public that the environmental impacts of a proposed action have been fully considered.
September 15 Order at 9. In light of that objective, the Court found that the FEIS should
expressly explain why potential negative effects within the Project area will not be felt in the
Boundary Waters and will not result in cumulative impacts. Significantly, the inference
advanced by the Forest Service that since no cumulative impacts would be felt within the Project
area, none would be felt within the Boundary Waters was not rejected as unreasonable. In fact,
the Court tended to agree with the inference, commenting that because the FEIS was
comprehensive and thoughtful and presents a great deal of information, it was quite likely
that the Forest Service already has the information necessary to address the Projects impacts on
the Boundary Waters and the Forest Service might well be able to revise the FEIS to include the
required discussion of that information. Id. at 21.
As was noted in the summary judgment order, the problem in this case was not that the
Forest Service entirely ignored and failed to consider the impacts of Project on the Boundary
Waters, clearly it did. Id. at 9. Rather the problem was that the FEIS was selective in its
4 Courts have rejected the view that a previous determination that government action was
arbitrary and capricious means, ipso facto, that the governments position was not substantially
justified. See, Nail v. Martinez, 391 F.3d 678, 685 (5th Cir. 2004); Mid-Del Therapeutic Ctr.,
Inc. v. Commr of Internal Revenue, 30 F. Appx 889, 893 n.3 (10th Cir. 2002); Abernathy v.
Clarke, 857 F.2d 237, 239 (4th Cir. 1988); Andrew v. Bowen, 837 F.2d 875, 878 (9th Cir. 1988);
Fed. Election Commn v. Rose, 806 F.2d 1081, 1089 (D.C. Cir. 1986). Indeed, [s]ome types of
arbitrary and capricious behavior, such as an agencys failure to provide an adequate explanation
for its actions or its failure to consider some relevant factor in reaching its decision, may not
warrant a finding that an agencys action lacked substantial justification. Wilkett v. Interstate
Commerce Commn, 844 F.2d 867, 871 (D.C. Cir. 1988).
discussion. Thus, the Forest Service did not adequately explain all of the considerations that
were looked at in evaluating the Project, and, as a result, the Forest Services approval of the
Project was arbitrary and capricious.4 But in the Courts view, the Forest Services position was
justified in substance or in the main and a reasonable person could think it correct. Pierce,
487 U.S. at 565, 566 n.2.
The parties have also raised arguments regarding whether Plaintiffs are even eligible to
receive an award of fees under the EAJA and, if so, what the correct measure of fees should.
Given the Courts decision that Plaintiffs are not entitled to an award of fees under the EAJA
because the Forest Services position was substantially justified, these additional issues are
Based on the foregoing, and all the files, records and proceedings herein, IT IS
HEREBY ORDERED that Plaintiffs Motion for Fees and Other Expenses [Docket No. 112] is
s/Ann D. Montgomery
Dated: February 19, 2009.


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