Wilderness Society v. Babbitt
5 F.3d 383 (9th Cir. 1993)
The Fish and Wildlife Service
(FWS) was allowing grazing in the Hart Mountain Wildlife Refuge even
though there was evidence that the grazing was harming wild animals in the
FWS had been considering a
management plan for how to use the Refuge's resources for a while, but
hadn't come up with a complete plan. In the meanwhile they kept renewing
They had not even written
an Environmental Impact Statement (EIS)
Environmental groups (led by
the Wilderness Society) sued for an injunction.
Wilderness Society argued
that FWS was required by the National Environmental Policy Act (NEPA) and other Statutes to write an EIS and develop a management
The FWS and Wilderness Society
settled the case.
As part of the settlement,
FWS agreed to prepare an EIS and a compatibility determination, and to
refrain from issuing any grazing permits until thirty days after the
adoption of a management plan.
Wilderness Society asked for
attorney's fees. The Trial Court denied the motion. Wilderness Society
The Trial Court found that the
Equal Access to Justice Act (EAJA) (28 U.S.C. § 2412(d)(1)(A)) provides that a court shall award attorneys'
fees to a "prevailing party" in a civil action brought against
the United States "unless the court finds that the position of the
United States was substantially justified or that special circumstances
make the award unjust."
FWS argued that even though
they were non-compliant with NEPA
they had been working towards compliance, so they were substantially
The Appellate Court reversed
and awarded attorney's fees.
The Appellate Court found
that Wilderness Society was the prevailing party.
The Court found that FWS's
actions were not substantially justified.
The Court found that there
was an affirmative duty to go out and determine if the refuge was being