Opinion
3:06-cv-00527-LRH-RAM.
August 25, 2009
ORDER
Presently before the court is plaintiff Western Watersheds Project's ("WWP") motion for attorney's fees filed December 9, 2008. Doc. #77. Defendants, the United States Department of the Interior's Bureau of Land Management ("BLM") and the United States Fish and Wildlife Service ("FWS"), filed an opposition on January 9, 2009. Doc. #83. On January 23, 2009, WWP filed its reply. Doc. #84.
Refers to the court's docket entry number.
I. Facts and Procedural History
In October 2003, BLM determined that two resource management plans ("RMPs") governing the management of 7.5 million acres of public land near Elko, Nevada did not provide adequate fire management for the area. See Doc. #64. BLM amended its RMPs and drafted environmental assessments ("EA") of the environmental impact surrounding the amendments. Id. The amended policies, the 2004 Elko and Wells Resource Management Plans Management Amendment ("Elko") and the 2005 Spruce Mountain Restoration Project ("Spruce Mountain"), provided for numerous pro-active vegetation treatments including burning, chaining, logging and other eradication methods of substantial undergrowth across more than 18,000 acres. See Doc. #77.
On October 4, 2006, WWP filed a complaint for injunctive relief alleging that BLM and FWS violated the National Environmental Policy Act ("NEPA") by failing to allow public review and comment on the amended RMPs and draft EAs. Doc. #1. WWP alleged three separate causes of action: (1) violation of NEPA in drafting the Elko amendment; (2) violation of the Environmental Species Act ("ESA") in drafting the Elko amendment; and (3) violation of NEPA in drafting the Spruce Mountain amendment. Doc. #1. WWP subsequently moved for a preliminary injunction to prevent BLM from executing on the Spruce Mountain amended RMP. Doc. #6.
On October 20, 2006, this court granted WWP's preliminary injunction finding that "BLM did not give the public an opportunity to comment on the draft [environmental assessment] prior to issuing its final decision" as required by NEPA regulations. Doc. #14.
WWP's claims regarding the Elko amended RMP were ultimately dismissed on April 18, 2008, when this court granted BLM's cross-motion for summary judgment (Doc. #55) and denied WWP's partial motion for summary judgment (Doc. #44). Doc. #64.
Subsequently, WWP voluntarily dismissed the remaining claim concerning Spruce Mountain because the BLM postponed the project, withdrew the challenged EA, and stated it would prepare a new EA if the amended plan was to move forward at a later date. Doc. ##71, 75. Final judgment was entered on November 7, 2008. Doc. #76.
WWP now seeks attorney's fees pursuant to 28 U.S.C. § 2412. Doc. #77.
II. Discussion
The Equal Access to Justice Act ("EAJA") authorizes the payment of fees and costs to a prevailing party in an action against the United States. 28 U.S.C. § 2412. Specifically, "a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in a civil action, including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action." 28 U.S.C. § 2412(d)(1)(A). Such fees shall be awarded "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." Id.
A motion for attorney's fees and costs pursuant to § 2412(d)(1)(A) must be filed within thirty (30) days after final judgment and include: (1) a showing that the applicant is a prevailing party; (2) that it is financially eligible under § 2412(d)(2)(b) to receive an award of fees and costs; (3) an itemized accounting of fees sought; and (4) an allegation that the government's position was not substantially justified. See 28 U.S.C. § 2412(d)(1)(B); Scarborough v. Principi, 541 U.S. 401, 408 (2004).
Here, WWP's motion for fees is untimely and must be denied. "An application for attorney fees under 28 U.S.C. § 2412(d) is timely only if the applicant files no more than 30 days after final judgment." Auke Bay Concerned Citizen's Advisory Council v. Marsh, 779 F.2d 1391, 1393 (9th Cir. 1986). Final judgment was entered on November 7, 2008, (Doc. #76) and the present motion was not filed until December 9, 2008, thirty-two (32) days later (Doc. #77).
Section 2412(d)(1)(B) "establishes a clear date after which application for attorney fees must be rejected as untimely." Auke Bay, 779 F.2d at 1393 (emphasis in original). This deadline is strictly interpreted and enforced. See e.g., Arulampalam v. Gonzalez, 399 F.3d 1087, 1099 (9th Cir. 2005) (denying a motion for attorney's fees that was mailed to the court on the thirtieth day but filed a few days later); Al-Harbi v. INS, 284 F.3d 1080, 1082 (9th Cir. 2002) (holding that applications under the EAJA must be filed "within [thirty] days of final judgment"); Columbia Mfg. Corp. v. NLRB, 715 F.2d 1409, 1410 (9th Cir. 1983) (denying a fees application filed thirty-three days after final disposition). Accordingly, WWP's motion is untimely under 28 U.S.C. § 2412(d)(1)(B).
IT IS THEREFORE ORDERED that Western Watersheds Project's motion for attorney's fees (Doc. #77) is DENIED.
IT IS SO ORDERED.