Opinion
Nos. 06-55006, 06-55225, 06-55960.
Argued and Submitted March 19, 2007.
Filed March 29, 2007.
Michael Strumwasser, Esq., Strumwasser Woocher, Santa Monica, CA, Amy E. Morgan, Esq., Timothy H. Irons, Burke Williams Sorensen, LLP, Los Angeles, CA, for Plaintiffs-Appellants.
Katherine M. Hikida, Esq., Suzette Clover, Esq., USLA-Office of the U.S. Attorney, Civil Tax Divisions, Debra A. Yang, Esq., USLA-Office of the U.S. Attorney, Criminal Division, Los Angeles, CA, Jason T. Cohen, Esq., David C. Shilton, Esq., Guillermo Montero, Esq. DOJ-U.S. Department of Justice, Environment Natural Resources Division, Washington, DC, for Defendants-Appellees.
Patricia S. Brody, Esq., Kerry Shapiro, Esq., Jeffer Mangels Butler Marmaro, LLP, San Francisco, CA, Defendant-intervenor-Appellee.
Appeal from the United States District Court for the Central District of California, Dickran M. Tevrizian, District Judge, Presiding. D.C. Nos. CV-02-00697-DT, CV-04-01572-DT.
Before: KOZINSKI, TROTT and BEA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
1. We review plaintiffs' claims under the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA) under the "arbitrary or capricious" standard of review. See 5 U.S.C. § 706(2)(A); Ariz. Cattle Growers' Ass'n v. U.S. Fish Wildlife Serv., 273 F.3d 1229, 1235-36 (9th Cir. 2001); Half Moon Bay Fishermans' Marketing Ass'n v. Carlucci 857 F.2d 505, 508 (9th Cir. 1988). After careful consideration of the record, we agree with the district court that the agency actions in these cases were neither arbitrary nor capricious. See Joint Findings of Fact and Conclusions of Law, City of Santa Clarita v. U.S. Dep't of Interior, Case No. CV02-00697 (C.D.Cal. 2006) (ESA Case); City of Santa Clarita v. U.S. Dep't of Interior, Case No. CV04-1572 (C.D.Cal. 2006) (NEPA Case).
2. Plaintiffs did not present their claim under section 401 of the Clean Water Act (CWA), 33 U.S.C. § 1341(a), to the agency. Even though the CWA's citizen suit provision, 33 U.S.C. § 1365, does not require exhaustion of administrative remedies, we find that the claim is nonetheless barred by the prudential exhaustion doctrine. See Marathon Oil Co. v. United States, 807 F.2d 759, 767-68 (9th Cir. 1986) ("As a general rule, we will not consider issues not presented before an administrative proceeding at the appropriate time.").
3. Plaintiffs' claim under the Federal Land Policy and Management Act, 43 U.S.C. § 1732(b), arises out of the same "transactional nucleus of facts" as the prior consent decree action, Cemex, Inc. v. Los Angeles County, 166 Fed.Appx. 306 (9th Cir. 2006), and is thus barred by res judicata, as the district court held. Burlington N. Santa Fe R.R. v. Assiniboine Sioux Tribes of Fort Peck Reservation, 323 F.3d 767, 770 (9th Cir. 2003) (internal quotation marks and citation omitted).
4. We need not address whether the district court had authority to award attorneys' fees to defendants under the Equal Access to Justice Act, 28 U.S.C. § 2412(b), because the district court also acted pursuant to its inherent authority to award fees. See Int'l Union of Petroleum Indus. Workers v. Western Indus. Maint, Inc., 707 F.2d 425, 428 (9th Cir. 1983). The district court correctly identified the common law standard for awarding fees. See Order Granting Defendant-in-Intervention Cemex, Inc.'s Motion for Attorney Fees in an Amount to be Determined, City of Santa Clarita v. U.S. Dep't of Interior, Case No. CV04-1572 (C.D.Cal. 2006) (NEPA Fee Order), at 6 (quoting Alyeska Pipeline Serv. v. Wilderness Soc'y, 421 U.S. 240, 258-59, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975)). On this record, we cannot find that the district court abused its discretion in concluding that plaintiffs acted in bad faith.