ELR Citation: ELR 20026
No(s). 83-2542 (9th Cir. Nov 28, 1984)

The court holds that awarding attorney fees to a defendant-intervenor under the Endangered Species Act (ESA) would not be appropriate, even though defendants prevailed on the merits, since intervenor's participation did not substantially contribute to the goals of the ESA. The court rejects the intervenor's argument that the requirement of promoting the goals of an act has applied only in cases where the party requesting fees lost on the merits. The court further holds that the "appropriate" standard in the ESA cannot be equated with standards applied under "prevailing party" fee award statutes. Because the ESA issue in the case was narrow, because the government had raised and forcefully argued the issue before the intervenor joined the case, and because the intervenor raised defenses inconsistent with assisting in the interpretation or implementation of the ESA, the district court did not abuse its discretion in denying fees. The court declines to address the issue of whether the attorney fee provision of the ESA applies only to citizen enforcement suits.

[Other opinions in the case appear at 13 ELR 20535 and 14 ELR 20797.]

Counsel for Plaintiffs
John M. Collette
Collette & Erickson
555 California St., Suite 4350, San Francisco CA 94104
(415) 788-4646

John Madariaga, General Counsel
Sierra Pacific Power Co., 100 E. Moana Lane, Reno NV 89520
(702) 789-4011

Counsel for Defendants
Joseph DePietro
Office of the Regional Solicitor
Department of the Interior, 2800 Cottage Way, Room E-2753, Sacramento CA 95825
(916) 484-4331

Dale White
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-7156

Counsel for Defendant-Intervenor-Appellant
Robert S. Pelcyger
Fredericks & Pelcyger
1007 Pearl St., Boulder CO 80302
(303) 443-1683

Michael Thorp
Eisenhower, Carlson, Newlands, Reha, Henriot & Quinn
Suite 1200, First Interstate Plaza, Tacoma WA 98402
(206) 572-4500

E. Pierre Gezelin
P.O. Box 858, Reno NV 89504
(702) 323-1894

Before DUNIWAY, SCHROEDER, and NORRIS, Circuit Judges.