In Western Watersheds Project v. Ellis, 2012 DJDAR 13948 (2012), the U.S. Court of Appeal for the Ninth Circuit decided a claim for attorney fees made by an environmental organization arising from grazing permit litigation.

In summary, Western Watersheds (Western), an environmental organization, sued the Bureau of Land Management’s (BLM) renewal of grazing permits in an area managed by BLM called the Jarbridge Resource Area. The district court concluded that the BLM failed to protect the environmental habitat in the area and issued an injunction against the grazing permits.

Based on the district court’s ruling, the BLM and Western settled the litigation, including all issues relating to attorney fees to that point in time. Subsequent to the 2007 settlement, a severe wildfire erupted in the Jarbridge Resource Area which greatly changed the landscape of the Resource Area.

As a result, the BLM once again allowed grazing on unburned areas of the Resource Area. Western successfully challenged the post-fire grazing conditions and authorizations. Western then asked for attorney fees as the prevailing party pursuant to the Equal Access to Justice Act (EAJA). The district court denied Western’s motion. The Ninth Circuit affirmed the lower court’s decision declining to grant fees.

The Ninth Circuit noted that under the EAJA, a prevailing party is generally entitled to fees against the government, unless the position of the government was “substantially justified.” In making a call whether or not the government’s position was “substantially justified,” a court must look to both the government’s position during litigation and to the agency action that the plaintiff’s lawsuit was based on.

The Ninth Circuit concluded that the district court properly considered the reasonableness of the BLM’s underlying decision to issue grazing authorizations after the fire. For that reason, this court was convinced that the district court correctly determined that the BLM was substantially justified in its position. The motion for fees under the EAJA was denied.