Appeal from the United States District Court for the District of Oregon. Owen M. Panner, District Judge, Presiding. D.C. No. 1:05-CV-03094-CL.
The opinion of the court was delivered by: O'scannlain, Circuit Judge
Argued and Submitted June 1, 2009 -- Portland, Oregon
Before: Diarmuid F. O'Scannlain, Ferdinand F. Fernandez, and Raymond C. Fisher, Circuit Judges.
We must decide whether environmental organizations are prevailing parties within the meaning of the Equal Access to Justice Act when, before judgment, the Bureau of Land Management withdraws its challenged decision to conduct a timber sale.
Plaintiffs Klamath Siskiyou Wildlands Center, Cascadia Wildlands Project, and Umpqua Watersheds ("Klamath") sued the Bureau of Land Management of the United States Department of the Interior ("BLM"), alleging that a planned timber sale in the Willy Slide area of the Medford District, among other decisions, violated the National Environmental Protection Act ("NEPA"), 42 U.S.C. § 4321 et seq., and the Forest Lands Policy and Management Act ("FLPMA"), 43 U.S.C. § 1701 et seq. Klamath sought "a preliminary injunction; a declaration that the challenged decision violated cer- tain laws; a permanent injunction against the project until the BLM complied with those laws; and an award of costs and attorneys fees."
Klamath filed its complaint in October of 2005. The BLM's own guidelines barred proceeding with the Willy Slide timber sale between October 15, 2005, and May 15, 2006, although a BLM official could waive this restriction. While cross-motions for summary judgment were pending before a magistrate judge, the parties stipulated that the BLM would stay authorization of the sale until the magistrate judge made a recommendation on the cross-motions and any objections had been resolved. The stay lasted only until May 15, 2006, at which point Klamath would have the option of moving for a preliminary injunction. The magistrate judge adopted this stipulation in January of 2006.
Meanwhile, in a different lawsuit, the same plaintiffs had challenged, on similar grounds, two other timber sales that the BLM had proposed. On November 6, 2006, we decided in favor of Klamath in the appeal of that case. See Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549 (9th Cir. 2006). At the time, the cross-motions for summary judgment were still pending in this case before the magistrate judge. The day after Boody came down, the magistrate judge filed Findings and Recommendations ("F&R"). The magistrate judge concluded that Boody was "directly on point" and that Klamath was "entitled to summary judgment" on some of its claims.
That same day (November 7, 2006), the BLM on its own "vacated [its] earlier rulings and granted [Klamath's] protest of the Willy Slide timber sale." In a letter to Klamath, the BLM noted the objections to its previous decision, as well as "recent case law pertaining to similar activities and NEPA analysis." The BLM stated that, in light of those two considerations, it would wait to award the Willy Slide sale "until such time that supplemental analysis and decision-making has been completed as appropriate." It is unclear whether the BLM did this before or after it found out about the magistrate judge's F&R.
The BLM then moved to dismiss this case without prejudice for lack of jurisdiction on the ground that it was either moot or unripe, objecting to the F&R on the same basis. The district court granted the motion to dismiss on both grounds. It concluded that the action was no longer ripe because Klamath's "claims [were] contingent upon future events; the BLM may or may not proceed with [the Willy Slide timber sale]. . . . If the BLM decides to offer the timber for sale again, [Klamath] will be able to challenge the sale and any under lying [sic] environmental documents." Alternatively, the action was moot because the court "[could not] grant [Klamath] any effective relief as the [Willy Slide timber sale] decision has been withdrawn and the [Annual Species Reviews*fn1 ] have been held invalid [in Boody]."
Klamath then moved for attorney's fees and costs under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Over the BLM's objection, the district court ...