ELR Citation: ELR 20355
No(s). 91-476-JE (D. Or. Nov 2, 1992)

The court adopts the recommendations of a magistrate judge that environmental groups challenging the issuance of a dredge and fill permit by the U.S. Army Corps of Engineers (Corps) to the city of Portland, Oregon, are not entitled to attorney fees, expenses, and costs under the Equal Access to Justice Act after the Corps withdrew the permit at the city's request. The magistrate judge found that the Corps' decision to withdraw the permit was not a clear or direct result of the groups' litigation, since the evidence established that the Corps' decision to withdraw the permit was prompted by the city's request to rescind it. The magistrate further found that although the groups could be regarded as having prevailed against the city, an intervenor in the action, they did not prevail against the Corps. The magistrate found that the groups failed to demonstrate that the government's position was not substantially justified, since the government received a favorable ruling on both its motion to dismiss and its motion to establish scope of discovery and scope of review. Further, the arguments advanced by the government were based on a reasonable interpretation of the applicable statutes, regulations, and cases.

Counsel for Plaintiffs
Donald H. Turner, Professor
Willamette University Law School
900 State St., Salem OR 97301
(503) 588-0336/370-6300

Richard J. Forester
LaBarre & Associates
900 SW 5th Ave., Ste. 1212, Portland OR 97204
(503) 228-3148

Counsel for Defendants
Christopher S. Vaden, Steve O'Dell
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000