Opinion
No. CIV 02-717 BB/WDS.
November 1, 2005
ORDER DENYING APPLICATION FOR ATTORNEYS' FEES AND COSTS
THIS MATTER is before the Court on Plaintiff's Application for Attorneys' Fees and Expenses [Doc. 165], and the Court having considered the submissions of counsel, finds the motion should be Denied.
Discussion
This has been a bitterly contested suit over the ownership of, and therefore the rights to fish, a portion of the Pecos River in northern New Mexico. After this dispute had manifested itself in various ways, Defendant, the United States Forest Service, informed Dallas Shannon, Plaintiff, he was trespassing by fencing that segment of the River and he could no longer interfere with the public's joint use. Mr. Shannon sued alleging ownership of both banks, and therefore unfettered access to and use of the River, which he had already leased out for fishing purposes. The Forest Service filed a counterclaim for trespass and sought quiet title to the middle (thread) of the River. Following several contentious discovery and pretrial disputes, partially explaining the extent of the attorneys' fees at issue, the case was tried. This Court found the Forest Service held title to the western bank of the Pecos River, that the Forest Service's predecessors in interest did not acquiesce in Plaintiff using both banks of the river, but that Plaintiff lacked the requisite intent to trespass. The Court therefore determined each side should bear their own costs.
Plaintiff now seeks $169,260.00 in attorneys' fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412 ("the Act"). This legislation is a limited waiver of sovereign immunity and should therefore be strictly constructed. Estate of Smith v. O'Halloran, 930 F.2d 1496 (10th Cir. 1991). Under the Act, when a party fails to achieve a primary purpose of the suit, he cannot be considered the prevailing party. Thomas v. National Science Foundation, 330 F.3d 486 (D.C. Cir. 2003); Limongelli v. Postmaster General, 707 F.2d 368 (9th Cir. 1983). It is true once Plaintiff filed suit seeking to have his boundary established to encompass both sides of the Pecos River, the Government counterclaimed seeking its boundary be recognized to the middle of the River and seeking trespass damages. Plaintiff did fend off these later claims, but did not achieve his primary purpose. Each side should bear its own attorneys' fees as well as costs and expenses.
Even if Plaintiff were to be considered a prevailing party, however, the Act would not support an award attorney's fees. Although the Court ultimately ruled against the United States on the issue of ownership to the center of the river, the position of the United States as to such ownership was substantially justified. As the Court pointed out in a prior opinion, there are a number of cases from various jurisdictions holding that a call along the bank of a river actually grants ownership to the center of the river. It was therefore reasonable for the United States to raise this argument and attempt to establish its ownership of the river to the centerline. See Koch v. United States Dep't of the Interior, 47 F.3d 1015, 1021 (10th Cir. 1995) (where law on point was not settled, position of United States was substantially justified and plaintiffs were not entitled to attorney's fees under the Act). Concomitantly, the trespass counterclaim, maintaining that Plaintiff used the portion of the river owned by the United States without permission, was also reasonable, though it also was ultimately rejected by the Court. Since the position of the United States as to both claims was substantially justified, the Court declines to order attorney's fees on this ground as well.
ORDER
For the afore-stated reasons, Plaintiff's Application for Attorneys' Fees and Expenses is DENIED.