ELR Citation: ELR 20245
No(s). 91-35325 (9th Cir. Dec 9, 1992)

The court holds that a district court improperly denied attorney fees to prevailing environmental groups in their challenge to U.S. Forest Service timber sales. The environmental groups brought this action claiming a sale of beetle-killed spruce in the Hells Canyon National Recreation Area violated the National Environmental Policy Act (NEPA), the Federal Water Pollution Control Act (FWPCA), and the Hells Canyon National Recreation Area (HCNRA) Act. The district court found for the federal defendants and on appeal the Ninth Circuit Court of Appeals affirmed on NEPA and FWPCA claims, but reversed on the HCNRA Act claim, holding that the Secretary of Agriculture was required to promulgate regulations for timber cutting before going forward with the timber harvesting.

The court holds that it is bound, on the merits, by the previous Ninth Circuit panel's holding and rationale that the statutory language clearly set forth a mandatory duty to issue the regulations. The previous panel rejected the government's position that it could reasonably interpret the HCNRA Act to allow it to go forward with the timber harvesting prior to promulgating timber sale regulations. Thus, the underlying position of the government to proceed with harvesting prior to issuing regulations was not substantially justified because the statutory language and legislative history were clear. Finally, the court holds that the government's litigation position here is not justified, since the government only repeats its arguments and criticism of the previous panel's decision on the merits. The government has the burden of showing that its decision to proceed to trial on the HCNRA Act claim was reasonable, and without evidence otherwise explaining its position, the court cannot find its position substantially justified sufficient to deny the environmental groups' attorney fees. Although the district court found for the government on remand from the previous Ninth Circuit panel, it misunderstood its task and held fast to its position that the government's interpretation of the HCNRA Act was reasonable. Merely continuing debate on the merits does not constitute a demonstration of the reasonableness of the government's position.

[Previous decisions in this litigation are published at 18 ELR 21503, 19 ELR 21154, and 21 ELR 20930.]

Counsel for Plaintiffs-Appellants
Gary K. Kahn
Reeves & Kahn
610 S.W. Alder, Ste. 910, Portland OR 97205
(503) 227-5144

Counsel for Defendants-Appellees
M. Alice Thurston
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Tang and Thompson, JJ.