ELR Citation: ELR 20899
No(s). 84-2231 (10th Cir. Jun 3, 1986)

The court holds that an environmental group that entered into a settlement agreement is entitled to attorney fees and costs under the Equal Access to Justice Act (EAJA). Under the terms of the agreement, the group achieved most of its objectives in its callenge to the Forest Service's grant of an easement to a public utilities board for a water project. The court first holds that the group was a prevailing party under the EAJA. Although the government argues that the utilities board was the entity that made concessions in the settlement agreement, a comparison of the complaint and the agreement supports the district court's finding that the group achieved most of the objectives of the four causes of action it asserted in its suit. First, the group's goal that the government comply with §504 of the Federal Land Policy and Management Act (FLPMA) requiring a finding that the easement do no unnecessary damage to the environment was furthered by the government's agreement to enforce all mitigation measures previously agreed to by the board and to follow FLPMA procedures in modifying the mitigation requirements. Second, the group's position that the easement would violate Executive Order No. 11990 by failing to adequately protect wetlands was furthered by the government's duty, which arose when it signed the settlement agreement, to enforce the board's promise to replace the wetlands that would be destroyed by the project. Third, the group's goal of preventing the construction of roads in the easement area was furthered by the government's agreement to close the roads to public traffic. Finally, the group's goal to protect minimum stream flows through the area was furthered by the government's promise in the settlement agreement to enforce the minimum stream flow mitigation measure for 30 years.

The court next holds that the government's litigation position was not substantially justified. The Forest Service's position on its duty to protect wetlands under Executive Order No. 11990 was unreasonable. It was clearly unreasonable for the Forest Service to rely on an agreement between the Corps of Engineers and the utilities board that contained no minimum standard for wetlands mitigation. The Forest Service's position that minimum stream flow requirements were not necessary to comply with FLPMA's mandate that the easement do no unnecessary damage to the environment was also not substantially justified since the Forest Service's own environmental impact statement states that the minimum stream flow requirements are necessary to mitigate damage to wildlife habitat. Finally, the court holds that the government's position that immediate closure of the roads was not necessary to meet FLPMA's mitigation requirement was not substantially justified.

Counsel for Plaintiffs-Appellees
Mark R. Haag
2000 Pennsylvania Ave., Suite 6500, Washington DC 20006
(202) 463-2000

Counsel for Defendants-Appellants
John A. Bryson
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2740

Before HOLLOWAY, Chief Judge, TIMBERS, Senior Circuit Judge,^* and BALDOCK, Circuit Judge.