The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
The Court has before it WWP's motion for attorney fees and costs. The motion is fully briefed and at issue. For the reasons explained below, the Court will grant the motion.
In 2003, the BLM issued grazing permits on the Nickel Creek allotments. Although the allotments had suffered grazing damage over the years, the BLM decided that grazing could continue under a two-part strategy that combined grazing utilization limits with a detailed grazing rotation schedule. See WWP responded by filing an administrative challenge, alleging that the BLM issued the permits in violation of various environmental laws. An Administrative Law Judge (ALJ) held a 15-day evidentiary hearing on WWP's allegations, and issued a 125-page decision finding that the BLM violated the Fundamentals of Rangeland Health (FRH) regulations and NEPA in issuing the grazing permits. The Interior Board of Land Appeals (IBLA) reversed that decision, and WWP appealed to this Court.
Relying heavily on the record created before the ALJ, this Court reversed the decision of the IBLA. The Court found that the BLM had improperly designated the grazing utilization limits as voluntary guidelines rather than mandatory terms of the permits. WWP also sought reversal of the second prong of the BLM's strategy -- the detailed grazing rotation schedule. The Court rejected that argument, relying on expert testimony (developed before the ALJ) that mandatory utilization limits in combination with the rotation schedule would make significant progress toward improving conditions on the allotments. The Court further (1) affirmed the IBLA finding that the BLM adequately discussed the "light-use" alternative; (2) reversed the IBLA's implied holding that the Nickel Creek FFR allotment did not violate FRH regulations; (3) agreed with WWP that the BLM experts appeared to be biased toward grazing interests, but was compelled by the standard of review to accept the ALJ's decision that the appearance of bias had no actual effect on the BLM's decision.
WWP seeks (1) $183,160 in attorney fees it incurred in litigation at the administrative level; (2) $75,895 in fees it incurred in litigation before this Court; and (3) $1,297 in costs. WWP seeks these fees under the Equal Access to Justice Act (EAJA), which contains two provisions relevant here. The first addresses fee requests for administrative hearings, and is appropriately found in Title 5 of the United States Code (5 U.S.C. § 504(a)(1)), governing administrative matters:
An agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust. Whether or not the position of the agency was substantially justified shall be determined on the basis of the administrative record, as a whole, which is made in the adversary adjudication for which fees and other expenses are sought.
The phrase "adversary adjudication" means that the United States is represented by counsel, "but excludes an adjudication for the purpose of... granting or renewing a license." Id. at § 504(b)(1)(C). This exclusionary language was previously cited by the Court in affirming a ruling by the Interior Board of Land Appeals rejecting WWP's request for fees incurred in an administrative challenge to a grazing permit renewal. See Memorandum Decision filed June 22, 2009 in WWP v. Interior Board of Land Appeals, Civ. No. 07-498-EBLW (docket no. 31).
In addition to this administrative fee provision, the EAJA includes a provision for fees in judicial proceedings, appropriately found in Title 28, which governs the courts. See 28 U.S.C. § 2412(d)(1)(A). Under that statute, a court "shall award to a prevailing party" fees and other expenses incurred "in any civil action... including proceedings for judicial review of agency action... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." There is no exclusion, as there was in § 504, for fees incurred in litigating license issues.
The BLM takes issue first with the administrative portion of WWP's request, totaling $183,160 for fees incurred in the agency hearings. The BLM argues that our prior case -- WWP v Interior Board of Land Appeals, supra, discussed above -- rejected a similar request and should be followed here.
However, that case involved only § 504(a)(1); the sole issue was whether WWP was entitled to fees for its work before the agency. In the present case, however, WWP is also seeking fees under § 2412(d)(3). That statute was held in Sullivan v. Hudson, 490 U.S. 877, 892 (1989) to authorize an award of fees incurred not only in judicial proceedings but also in administrative proceedings held following a court-ordered remand. While the facts of Sullivan involved a remand, its language covered broader terrain -- it interpreted § 2412(d)(3) to authorize fees incurred at the agency level "where administrative proceedings are intimately tied to the resolution of the judicial action and necessary to the attainment of the results Congress sought to promote by providing for fees." Id. at 888. Having found those requirements satisfied, Sullivan awarded fees incurred at the agency level even though those proceedings were not an "adversary adjudication" that would pass muster under § 504. Id. at 891 (stating that agency hearing was "not 'adversarial' within the meaning of § 504(b)(1)(C)").
While the agency hearings here were an "adversarial adjudication," they end up similarly excluded for another reason: They involved a license renewal. Thus, this case shares with Sullivan a party seeking fees under § 2412 incurred in agency ...