Development Opponents Awarded $210K in Fees

SAN FRANCISCO (CN) - The U.S. government owes more than $210,000 in legal fees to environmentalists opposing residential developments they say will destroy vernal pools near Sacramento.

The Environmental Protection Agency, U.S. Fish and Wildlife Service and the U.S. Army Corps of Engineers met with local landowners and agencies in June 2004 to design a conceptual strategy that would guide development in the area according to a set of specific principles.

Using the plan, the agencies awarded several development permits after conducting environmental assessments that returned findings of no significant impact.

California Native Plant Society joined the Defenders of Wildlife and Butte Environmental Council in a challenge against the conceptual plan in June 2007. Among other things, they claimed the government failed to assess the conceptual plan under the National Environmental Protection Act (NEPA) and failed to follow NEPA guidelines in the environmental assessments. They also claimed the agencies failed to issue permits without studying the projects' impacts to endangered species in violation of the Endangered Species Act.

The court declined to issue a temporary restraining order against the plan in November 2006, finding the plan was not a final agency action and a failure to abide by procedural requirements under the Endangered Species Act and NEPA.

When the plaintiffs won an injunction in July 2007, the court maintained that the groups were unlikely to succeed on their first, third and fourth claims. It nevertheless ruled that the government failed to address cumulative impacts of development projects to vernal pools, which would be permanently destroyed.

During a three-year stay of litigation, the government prepared an environmental impact statement that ultimately reduced impacts to vernal pools from 48.95 acres to 46.35 acres. After the stay expired in 2011, the parties entered settlement talks and agreed to dismiss the case in March 2013.

This past June, the groups moved under the Equal Access to Justice Act for $721,008.56 in attorneys' fees and $3,523.72 in legal costs.

U.S. District Judge Phyllis Hamilton found Thursday that the groups can recover attorneys' fees because they are the prevailing party by way of the preliminary injunction, and the government "failed to show its position was substantially justified or that special circumstances make an award unjust."

In arguing that the groups were not the prevailing party, the government pointed to the ruling in Klamath Siskiyou Wildlife Center v. U.S. Bureau of Land Management.

Hamilton rejected the allusion, however, noting that Klamath involved a suit to stop a timber sale, not delay it for only a season. The stipulation granted in that case also did not change the parties' relationship because the bureau's own guidelines prevented it from selling the timber for another season even without the stipulation, rendering the relief sought by the plaintiff illusory rather than material, according to the ruling.

The groups in this case meanwhile received the relief they sought: that the court would vacate the development permits, bar the government from issuing any more permits, and a halt to any pending construction projects, Hamilton noted.

Attorneys' fees are appropriate because the agencies' position was not "substantially justified," according to the ruling.

The government failed to show that the conceptual plan was not a final agency action and did not have to be scrutinized under NEPA, according to the ruling. Here, the question of the environmental assessments' adequacy under NEPA is irrelevant.

"When determining whether the government was substantially justified, the question is whether the government was substantially justified with its actions or defense of the actions that yielded plaintiffs the prevailing party status," Hamilton wrote. "The focus of this case is thus squarely upon the second claim and whether the government's consideration (or lack thereof) of cumulative impacts and alternatives in the initial EAs [environmental assessments] was reasonable."

Since the government advanced no argument concerning its consideration of cumulative impacts, it fails to meet its burden to show substantial justification, the ruling states.

Instead of the $721,008.56 demanded, however, the groups will take home a total award of $214,569.32.

This amount reflects the maximum hourly rate under the Equal Access to Justice Act the for work done over the case's nine-year lifespan, as well as a 22 percent across-the-board reduction to reflect the fact that the groups found only partial success on their claims.

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