ELR Citation: ELR 20629
No(s). 82-504-RE (D. Or. Oct 4, 1985)

The court holds that environmental groups that challenged the adequacy of an environmental impact statement (EIS) for gypsy moth eradication programs are prevailing parties under the Equal Access to Justice Act (EAJA), but they are not entitled to attorney fees because the government's position was substantially justified. The court first holds that plaintiffs are not prevailing parties for the litigation phase that began with plaintiffs' motion for a preliminary injunction and ended with the dismissal of the action for lack of final agency action. The government had prepared an EIS it believed complied with the requirements established by the National Environmental Policy Act. It withdrew the EIS after receiving new information on cancer potential and recommended exposure levels from two federal agencies and comment letters filed after the close of the original comment period. Although the litigation had some effect on the government's decision to supplement the original EIS, it was not the direct cause. The court holds that plaintiffs are prevailing parties for the purposes of the subsequent trial on the adequacy of the supplemental EIS. Although plaintiffs succeeded on only one out of 10 claims, the readability of the worst-case analysis, this is sufficient to be a prevailing party under EAJA. Plaintiffs obtained a declaration that the EIS was inadequate and an injunction prohibiting reliance on the EIS for the gypsy moth program; this was precisely the relief they sought. The court holds, however, that the government's position in the litigation was substantially justified, and therefore awards no attorney fees. The question of readability of a worst-case analysis was an issue of first impression; prior to this court's ruling, no court had invalidated an EIS on these grounds and only rarely had a court even mentioned the readability requirement. Moreover, the government's experts testified that the document was readable and that decisionmakers could understand it.

[Related cases in this litigation appear at 12 ELR 20766, 20769, 20769; 13 ELR 20901; 14 ELR 20762; 15 ELR 20499, 20503.]

Counsel for Plaintiffs
Larry N. Sokol
Jolles, Sokol & Bernstein
721 S.W. Oak St., Portland OR 97205
(503) 228-6474

John E. Bonine, Michael D. Axline
Pacific Northwest Resources Clinic
University of Oregon Law Ctr., Eugene OR 97403
(503) 686-3823

Ralph Bradley
Bradley & Gordon
1397 Willamette St., Eugene OR 97401
(503) 343-8247

Counsel for Defendants
Charles H. Turner, U.S. Attorney; Thomas C. Lee, Ass't U.S. Attorney
312 U.S. Cthse., 620 SW Main St., Portland OR 97205
(503) 221-2101

Dorothy Burakreis, R.W. Rodrigues, Elizabeth Ann Peterson
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5390

John DiLorenzo Jr., Brendan Stocklin-Enright
DiLorenzo & Dietz
900 SW Fifth, #1700, Portland OR 97204
(503) 225-0010