ELR Citation: ELR 20380
No(s). 92-6291-TC (D. Or. Jul 6, 1994)

The court adopts a magistrate judge's recommendation that it should not award attorney fees to an environmental group and an individual in connection with their suit to compel the U.S. Department of the Interior (DOI) to prepare an Endangered Species Act (ESA) recovery plan for Bradshaw's Desert Parsley (BDP), an endangered plant. Applying the catalyst theory for awarding attorney fees, the magistrate judge found that plaintiffs failed to establish a sufficient causal relationship between their lawsuit and the completion of the recovery plan for BDP. The magistrate judge noted that the relief plaintiffs sought and the relief they obtained were of the same general type: The relief for which plaintiffs are seeking fees was establishment of a recovery plan for BDP, which DOI completed. The magistrate judge found, however, that plaintiff's lawsuit does not appear to be a material factor in causing DOI's actions, because DOI was working on a plan one year before plaintiffs filed suit and had a final plan approximately 14 months after the litigation began. The magistrate judge also noted that plaintiffs' failure to establish a causal connection is especially evident when it is considered that other factors such as a limitation of funds and the need and ability to prioritize projects may be the overriding factors controlling the timing of the development of recovery plans.

Applying the second part of the test for obtaining fees under the catalyst theory, the magistrate judge found that plaintiffs failed to demonstrate a legal basis for their claim. The evaluation of whether a legal basis exists for plaintiffs' claim is limited to determining whether the claim is frivolous, unreasonable, or groundless, or whether plaintiffs continued to litigate after it became so. Applying this standard, the magistrate judge noted that no statutory time limit exists within which DOI must develop and publish a recovery plan. To prevail in their action, plaintiffs were required to show that DOI had determined affirmatively not to develop a recovery plan or possibly that the time lapse after listing and before development and publication of a recovery plan was so great and so unreasonable as to amount to a complete failure to fulfill a duty. The magistrate judge found that plaintiffs have not, and could not have, made such a showing. Even if DOI had hastened its development of the recovery plan after commencement of the lawsuit, it was under no legal obligation to so advance the promulgation of the plan. In that sense, plaintiffs' lawsuit was unreasonable and groundless. This is especially true when it is considered that DOI had started developing the plan before plaintiffs acted and that BDP was already protected under the ESA.

The magistrate judge further found that plaintiffs failed to meet their burden of demonstrating that DOI did not act within a reasonable time or unreasonably delayed the recovery plan. There was at most a two-and-one-half-year delay between the time DOI came under a duty to develop a recovery plan and the time it began actively to fulfill that duty, and in the absence of the plan, the BDP was already afforded the full protection of the ESA. In addition, the ESA omits any time limits for the preparation of a recovery plan. Had Congress felt that the development and implementation of a recovery plan was an immediate necessity, it could have set a time limit as it did for the designation of critical habitat. Also, Congress expressly recognized in the ESA that it is appropriate to consider administrative concerns such as the need to prioritize in the face of limited resources. DOI noted that some delay is attributable to such prioritization. Finally, the magistrate judge found that plaintiffs were not entitled to attorney fees because they have not made a substantial contribution to the ESA.

Counsel for Plaintiffs
C. Peter Sorenson
Sorenson Law Firm
P.O. Box 10836, Eugene OR 97440
(503) 683-1378

Counsel for Defendants
Thomas C. Lee, Ass't U.S. Attorney
U.S. Attorney's Office
888 SW Fifth Ave., Ste. 1000, Portland OR 97204
(503) 326-2101

Elinor Colbourn
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000