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Californians For Alternatives v. United States Fish and Wildlife Service; Alexandra Pitts

May 8, 2012

CALIFORNIANS FOR ALTERNATIVES TO TOXICS, A NON-PROFIT10/21 CORPORATION; WILDERNESS WATCH, A NON-PROFIT CORPORATION; THE FRIENDS OF SILVER KING CREEK, A CALIFORNIA NON-PROFIT CORPORATION; LAUREL AMES, AN INDIVIDUAL AND ANN MCCAMPBELL, AN INDIVIDUAL, PLAINTIFFS,
v.
UNITED STATES FISH AND WILDLIFE SERVICE; ALEXANDRA PITTS, IN HER OFFICIAL CAPACITY; UNITED STATES FOREST SERVICE; JEANNE M. HIGGINS, IN HER OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER*fn1

Plaintiff Californians for Alternatives to Toxins ("CATT") moves for $86,299.06 in attorneys' fees and costs under the Equal Access to Justice Act ("EAJA"), prescribed in 28 U.S.C. § 2412 et seq. ECF No. 74. A memorandum and order was filed on September 6, 2011, in which Plaintiff was granted summary judgment on its Wilderness Act of 1964 ("Wilderness Act") claim, and Defendant was granted summary judgment on Plaintiff's remaining claims. ECF No. 65. Judgment was entered on September 7, 2011. ECF No. 67 Defendants the United States Forest Service ("USFS") and the United States Fish and Wildlife Service ("USFSW") oppose the motion. The Court only reaches the substantial justification issue involved in the motion, and for the reasons stated below, Plaintiff's motion is DENIED.

FACTUAL BACKGROUND

The facts involved with this case are stated in Californians for Alternatives to Toxics v. U.S. Fish & Wildlife Service ("CATT"), 814 F.Supp.2d 992 (E.D. Cal. Sept. 06, 2011), the earlier filed order on the parties' cross-motions for summary judgment. Therefore, the court recounts only those facts necessary to provide sufficient context for the court's analysis.

Through this lawsuit, Plaintiff sought to set aside the Defendants' decision authorizing the paiute cuthroat trout restoration project (the "Project") in Silver King Creek. Defendants instituted the Project in order to restore the paiute cutthroat trout ("PCT") to its historic range in Silver King Creek, by eradicating non-native trout with the pesticide rotenone and restocking the treated area with pure PCT. Defendants selected an auger, powered by a gasoline-powered generator, to distribute the potassium that would neutralize the toxicity of the rotenone downstream.

Defendants assessed three alternative plans while developing the project: the No Action Alternative ("Alternative One"); the Proposed Action Alternative ("Alternative Two"); and the Combined Physical Removal Alternative ("Alternative Three"). Alternative One would have continued previous management of then existing PCT populations in Silver King Creek, without introducing new populations or efforts to eradicate non-native trout; Defendants concluded that this alternative would not result in direct environmental benefits. Alternative Two analyzed the Project at issue in this case, described in the preceding paragraph. The analysis acknowledged that this alternative could result in loss of individual macroinvertebrate species, potentially including rare or as yet unidentified species endemic to Silver King Creek. Alternative Three proposed using non-chemical techniques (a combination of electrofishing, gill netting, seining, and other physical methods) to remove non-native trout from the Project area. Defendants estimated the electrofishing component would take over ten years to complete, and the electrofishing batteries would be recharged with small gasoline-powered generators.

Defendants ultimately selected Alternative Two as "the most effective method to remove non-native trout within the PCT historic habitat." CATT, 814 F.Supp.2d at 1000. Defendants concluded that, under the Wilderness Act, "the short term negative effects to the 'natural' wilderness character through introduction of chemical pesticide were balanced by the improved long term natural conditions of wilderness character through restoration of a native species." Id. at 1021. Defendants state they enacted the Project in order to remove the PCT from the Endangered Species Act's threatened species list.

PROCEDURAL HISTORY

Plaintiffs challenged the Project under the National Environmental Policy Act ("NEPA"), the Wilderness Act, the Endangered Species Act ("ESA"), the Federal Water Pollution Control Act ("Clean Water Act"), the California Environmental Quality Act ("CEQA") and the Administrative Procedures Act ("APA"), seeking both declaratory and injunctive relief.

Plaintiffs filed a motion for summary judgment on April 3, 2011, in which they sought partial summary judgment in their favor on their NEPA and Wilderness Act claims. On May 5, 2011, USFWS and USFS filed an opposition and cross-moved for summary judgment on Plaintiffs' other ESA, Clean Water Act and APA claims. Oral argument was heard on the motions on August 11, 2011. Subsequently, the court granted Defendants summary judgment on all Plaintiffs' claims except for Plaintiffs' Wilderness Act claim; and granted Plaintiffs summary judgment on that claim.

Defendants appealed the decision to the Ninth Circuit, ECF No. 69, but later dismissed the appeal voluntarily. ECF No. 72.

STANDARD

Under the EAJA, a party litigating against the United States may recover attorneys' fees where: "(1) the plaintiff is the prevailing party; (2) the government has not met its burden of showing that its positions were substantially justified or that special circumstances make an award unjust; and (3) the requested attorney's fees and costs are reasonable." Perez-Arellano v. Smith, 279 F.3d 791, 793 (9th Cir. 2002); 28 U.S.C. ยง 2412(d)(1)(A). The decision to award ...


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