FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CITIZENS FOR BETTER FORESTRY; 

THE ECOLOGY CENTER; GIFFORD

PINCHOT TASK FORCE; KETTLE

RANGE CONSERVATION GROUP;

IDAHO SPORTING CONGRESS; FRIENDS

OF THE CLEARWATER; UTAH

ENVIRONMENTAL CONGRESS;

No. 07-16077 CASCADIA WILDLANDS PROJECT;

KLAMATH D.C. No. SISKIYOU WILDLANDS  CENTER; SOUTHERN APPALACHIAN CV-01-00728-MJJ

BIODIVERSITY PROJECT; OPINION

HEADWATERS; THE LANDS COUNCIL,

Plaintiffs-Appellees,

v.

U.S. DEPARTMENT OF AGRICULTURE;

UNITED STATES FOREST SERVICE,

Defendants-Appellants. 

Appeal from the United States District Court

for the Northern District of California

Martin J. Jenkins, District Judge, Presiding

Argued and Submitted

October 22, 2008—San Francisco, California

Filed June 9, 2009

Before: Procter Hug, Jr., Melvin Brunetti and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton;

Dissent by Judge Hug

6841
COUNSEL

Ronald J. Tenpas, Assistant Attorney General; Andrew A.

Smith, Andrew C. Mergen, and Robert J. Lundman (argued),

United States Department of Justice, Washington, DC, for the

defendants-appellants.

Peter M.K. Frost, Western Environmental Law Center,

Eugene, Oregon, for the plaintiffs-appellees.

BETTER FORESTRY v. USDA 6843
OPINION

CLIFTON, Circuit Judge:

The United States Department of Agriculture (“USDA”),

which includes the Forest Service, appeals the district court’s

award of attorneys’ fees to Citizens for Better Forestry and

eleven other environmental groups (collectively, “Citizens”)

under the Equal Access to Justice Act (“EAJA”), 28 U.S.C.

§ 2412(d)(1)(A). In the underlying action, Citizens sought

declaratory and injunctive relief against the USDA for its promulgation of a new national forest management rule. We

reversed the district court’s dismissal of Citizens’ suit on

standing and ripeness grounds and remanded for a ruling on

Citizens’ motion for injunctive relief. Before the district court

could reconsider the motion, the USDA withdrew the contested rule. Citizens then stipulated to dismiss its case and

moved for attorneys’ fees. Because Citizens received no relief

from any court, it does not qualify as a “prevailing party”

under the EAJA and, therefore, is not entitled to fees. 

I. Background

On February 16, 2001, Citizens brought suit in the Northern District of California, alleging that the USDA had committed procedural violations of the National Environmental

Policy Act (“NEPA”) and the Endangered Species Act

(“ESA”) and substantive violations of the National Forest

Management Act in promulgating a new rule (the “2000 Final

Rule”) governing the Forest Service’s administration and

management of National Forest System lands. Citizens sought

declaratory and injunctive relief. After Citizens filed suit, the

USDA reviewed the 2000 Final Rule and announced in

December 2001 that a new rule would replace it. Citizens

agreed, in turn, to stay its substantive claims, but moved for

partial summary judgment on its procedural claims. The

USDA filed a cross-motion for partial summary judgment,

alleging that Citizens lacked standing to challenge the 2000

6844 BETTER FORESTRY v. USDA
Final Rule and that its claims were not ripe for adjudication.

The district court granted the USDA’s motion on both

grounds and denied Citizens’ motions for partial summary

judgment and injunctive relief. Citizens brought an immediate

appeal of the district court’s denial of its motion for injunctive

relief. 

This court reversed, holding that Citizens had standing to

assert the NEPA and ESA claims and that the case was ripe

for review. Citizens for Better Forestry v. U.S. Dep’t of Agriculture, 341 F.3d 961, 965 (9th Cir. 2003). In our standing

analysis, we held that the USDA had violated NEPA by

depriving Citizens of its right to comment on the relevant

environmental documents. Id. at 970. The opinion concluded:

“We do not reach the merits of Citizens’ appeal on their

motion for injunctive relief, however, because the district

court did not reach the merits of the motion.” Id. at 978. Ultimately, we reversed and remanded the case to the district

court “to determine whether injunctive relief is appropriate.”

Id. at 965. 

After we issued our decision, the USDA withdrew the 2000

Final Rule and issued a new final rule. Citizens then dismissed its case and moved for attorneys’ fees and costs pursuant to the ESA and the EAJA. A magistrate judge issued a

Report and Recommendation concluding that Citizens’

motion should be granted under the EAJA, but denied under

the ESA. After the USDA objected, the district court

reviewed the record de novo and issued an order adopting the

Report and Recommendation without change. Citizens for

Better v. U.S. Dep’t of Agriculture, 497 F. Supp. 2d 1062,

1065 (N.D. Cal 2007). The district court awarded attorneys’

fees to Citizens under the EAJA because it held that Citizens

was a “prevailing party” on its NEPA claim, as required for

an award of fees. Id. at 1072. The court reasoned: “Given the

dispositive and binding nature of the Ninth Circuit’s finding,

leaving no discretion to the District Court, the panel’s ruling

was functionally equivalent to a declaratory judgment,” a

BETTER FORESTRY v. USDA 6845
form of relief sufficient to confer prevailing party status under

the EAJA. Id. at 1073. The USDA timely filed a notice of

appeal. 

II. Discussion

The USDA argues that the district court incorrectly held

that Citizens was a prevailing party in its lawsuit against the

USDA and, as a result, erred in awarding Citizens attorneys’

fees under the EAJA. The USDA contends that Citizens cannot be a prevailing party because the latter “did not secure any

relief” from either the district court or this court. Citizens

responds by disputing the USDA’s assertion that we did not

afford declaratory relief to Citizens; it argues that this court

went beyond a mere jurisdictional ruling to reach the merits

of Citizens’ NEPA claim. Our favorable ruling on the merits

in conjunction with a remand with instructions to the district

court indicate, Citizens contends, that it was a prevailing party

under the EAJA.

We review for abuse of discretion the district court’s decision to award fees under the EAJA. United States v. 2659

Roundhill Dr., 283 F.3d 1146, 1151 n.6 (9th Cir. 2002). The

decision as to whether a party has prevailed is a finding of

fact “that will be set aside if clearly erroneous or if based on

an incorrect legal standard.” Oregon Environmental Council

v. Kunzman, 817 F.2d 484, 496 (9th Cir. 1987). We review de

novo the legal analysis underlying the district court’s finding

that Citizens was a prevailing party. See V.S. ex rel. A.O. v.

Los Gatos-Saratoga Joint Union High Sch. Dist., 484 F.3d

1230, 1232 (9th Cir. 2007). 

[1] The EAJA directs courts to award attorneys’ fees to “a

prevailing party” in qualifying civil actions against the United

States. 28 U.S.C. § 2412 (d)(1)(A).1 In Buckhannon Board &

1The statute reads in relevant part: 

6846 BETTER FORESTRY v. USDA
Care Home, Inc. v. West Virginia Department of Health &

Human Resources, the Supreme Court looked to Black’s Law

Dictionary to define “prevailing party” as “[a] party in whose

favor a judgment is rendered, regardless of the amount of

damages awarded.” 532 U.S. 598, 603 (2001) (alteration in

original) (quoting Black’s Law Dictionary 1145 (7th ed. 1999)).2

Of particular relevance to the present case is the definition of

“render,” given the dispute between the USDA and Citizens

over whether this court entered a declaratory judgment for

Citizens. When referring to an action taken by a judge, “render” is defined by the authority relied upon by the Court in

Buckhannon as “to deliver formally.” Black’s Law Dictionary

1322 (8th ed. 2004). Taken together, the definitions of “prevailing party” and “render” suggest that a party must have a

judgment or something similar formally delivered in its favor

to be considered “prevailing.” 

While the Buckhannon Court did not have reason to

address how formal a judgment must be, it made clear that,

in any event, a party must receive “some relief” from a court

to be considered “prevailing.” 532 U.S. at 603. “Our

‘[r]espect for ordinary language requires that a plaintiff

receive at least some relief on the merits of his claim before

Except as otherwise specifically provided by statute, a court shall

award to a prevailing party other than the United States fees . . .

incurred by that party in any 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). 

2The Court has recognized that numerous attorneys’ fees statutes award

fees to a “prevailing party” and has elected to “interpret[ ] these feeshifting provisions consistently.” Buckhannon, 532 U.S. at 602, 603 n.4;

see also Perez-Arellano v. Smith, 279 F.3d 791, 794 (9th Cir. 2002)

(“[W]e discern no reason to interpret the EAJA inconsistently with the

Supreme Court’s interpretation of ‘prevailing party’ [in other federal statutes] as explained in Buckhannon.”). 

BETTER FORESTRY v. USDA 6847
he can be said to prevail.’ ” Id. (alteration in original) (quoting Hewitt v. Helms, 482 U.S. 755, 760 (1987)). An award of

attorneys’ fees must be preceded by a “ ‘material alteration of

the legal relationship of the parties.’ ” Id. at 604 (quoting

Texas State Teachers Ass’n v. Garland Independent Sch.

Dist., 489 U.S. 782, 792-93 (1989)). Only such alterations

that obtain “the necessary judicial imprimatur on the change”

will suffice to confer “prevailing party” status upon the plaintiff. Id. at 605. 

In a previous decision, the Supreme Court held that a plaintiff was not a prevailing party when he “obtained no relief,”

only a “favorable judicial statement of law in the course of litigation that result[ed] in judgment against the plaintiff.”

Hewitt, 482 U.S. at 760, 763. In Hewitt v. Helms, the Third

Circuit had instructed the district court to enter summary

judgment for the plaintiff, a state prisoner, on the grounds that

the defendant prison officials had violated the Constitution,

“unless the defendants could establish an immunity defense.”

Id. at 758 (emphasis added). In subsequent proceedings, the

defendants succeeded in establishing qualified immunity and

were granted summary judgment themselves. Id. The Court

found that the Third Circuit’s favorable instruction did not

constitute “a form of judicial relief,” such as a declaratory

judgment, and therefore was insufficient to confer prevailing

party status on the plaintiff. Id. at 760. Consequently, though

the plaintiff had obtained a favorable determination on the

issue of whether there had been a constitutional violation, he

ultimately received no relief from the district court and therefore was not entitled to attorneys’ fees. Id. 

The Supreme Court provided two “examples” of forms of

relief that justify a fee award: enforceable judgments on the

merits and settlement agreements enforced through a consent

decree. Buckhannon, 532 U.S. at 604-5.While we have identified additional situations in which a plaintiff can qualify as a

prevailing party, see, e.g., Richard S. v. Dep’t of Developmental Services of Cal., 317 F.3d 1080, 1086 (9th Cir. 2003)

6848 BETTER FORESTRY v. USDA
(legally enforceable settlement agreement between the plaintiff and defendant); Watson v. County of Riverside, 300 F.3d

1092, 1096 (9th Cir. 2002) (preliminary injunction as sole

form of relief), we never have undermined the Court’s basic

requirement that “some relief” be granted. In Benton v. Oregon Student Assistance Commission, for instance, we reversed

a district court’s award of attorneys’ fees, finding that the

court’s prior award of nominal damages and its conclusion

that the “plaintiff had proven that her constitutional rights had

been violated” were not alone sufficient to justify a fee award.

421 F.3d 901, 908 (9th Cir. 2005). We held that the plaintiff

had not obtained a declaratory judgment, notwithstanding this

favorable judicial language. Id.; see also, e.g., Poland v.

Chertoff, 494 F.3d 1174, 1187 (9th Cir. 2007) (denying prevailing party status to a plaintiff who had not yet obtained

“any relief on the merits of his claims,” despite holding that

the plaintiff had established one of his claims (emphasis

added)).

[2] In the present case, Citizens asserts that it should be

considered a prevailing party because it received a ruling

from this court that the USDA had violated Citizens’ rights

under NEPA. Citizens, however, never received a formal

declaratory judgment or other relief from this or any other

court. The district court entered no such judgment, and we

merely remanded to the district court to consider injunctive

relief without discussing declaratory relief. See Citizens, 341

F.3d at 965. 

[3] No Supreme Court or Ninth Circuit precedent supports

Citizens’ claim. To the contrary, the cases reviewed here uniformly require that a plaintiff receive some form of judiciallysanctioned relief, as a “judicial imprimatur” is necessary to

achieve the “corresponding alteration in the legal relationship

of the parties” that the Supreme Court has identified as a prerequisite for prevailing party status. See Buckhannon, 532

U.S. at 605. 

BETTER FORESTRY v. USDA 6849
The dissent attempts to read Supreme Court precedent in

light of the Buckhannon Court’s approval of Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970). See

Buckhannon, 532 U.S. at 607 n.9. In Parham, the Eighth Circuit granted attorneys’ fees to a plaintiff after holding that the

company to which he had applied for employment had

engaged in racial discrimination in violation of Title VII. 433

F.2d at 429. While agreeing with the district court that an

injunction was neither “necessary or appropriate . . . at the

present time,” due to the company’s subsequent progress in

minority hiring, the Eighth Circuit nevertheless directed the

district court to “retain jurisdiction over the matter for a reasonable period of time to insure the continued implementation

of the appellee’s policy of equal employment opportunities.”

Id. In Buckhannon, the Supreme Court quoted the latter passage and analogized that directive to a consent decree before

concluding that “[c]learly Parham does not support a theory

of fee shifting untethered to a material alteration in the legal

relationship of the parties.” 532 U.S. at 607 n.9. In the present

case, our court issued no comparable order to the district court

and instead remanded to allow the district court “to determine

whether injunctive relief is appropriate.” Citizens, 341 F.3d at

965. Buckhannon’s citation to Parham does not support a fee

award here. 

For its part, Citizens points to a single decision of our

court, Animal Lovers Volunteer Ass’n, Inc. v. Carlucci, 867

F.2d 1224 (9th Cir. 1989), that, Citizens argues, “should control the resolution of this appeal.” In Animal Lovers, we

awarded attorneys’ fees to the plaintiffs after a previous Ninth

Circuit decision had granted the plaintiffs declaratory relief

and had remanded to the district court to determine whether

an injunction should be granted. Id. at 1225. While Citizens

relies heavily on Animal Lovers—and the district court cites

it, Citizens, 497 F. Supp. 2d at 1072, 1073—its procedural

background differs significantly from the facts here: Our court

granted declaratory relief to the plaintiffs in Animal Lovers,

but did not do likewise with Citizens. Compare Animal Lov6850 BETTER FORESTRY v. USDA
ers, 867 F.2d at 1225, with Citizens, 341 F.3d at 965, 978.

Thus, even Citizens’ preferred precedent offers no support for

its proposition that it was transformed into a prevailing party

once we stated that the USDA had violated Citizens’ rights.

[4] Citizens asserts that we went beyond a jurisdictional

ruling to reach the merits of its claim when we held that the

USDA had violated NEPA by depriving Citizens of its right

to comment on environmental documents. But a favorable

determination on a legal issue, even if it might have put the

handwriting on the wall, is not enough by itself. A “favorable

judicial statement of law,” as Citizens obtained here, cannot

substitute for “a form of judicial relief,” such as declaratory

judgment. Hewitt, 482 U.S. at 760, 763. 

One reason the Supreme Court drew that distinction is that

a court is not bound to enter a declaratory judgment when it

finds unlawful action. See, e.g., Wilton v. Seven Falls Co., 515

U.S. 277, 282 (1995) (“[D]istrict courts possess discretion in

determining whether and when to entertain an action under

the Declaratory Judgment Act, even when the suit otherwise

satisfies subject matter jurisdictional prerequisites.”). In

reaching its decision, the Hewitt Court cited a “practical

objection to equating statements of law . . . with declaratory

judgments: The equation deprives the defendant of valid

defenses to a declaratory judgment to which he is entitled[,]”

such as mootness or equitable grounds. 482 U.S. at 762.The

Court added: “The fact that a court can enter a declaratory

judgment does not mean that it should.” Id. 

[5] We recognize that our previous ruling in this case may

have put Citizens well down the road to victory. It is possible

that Citizens’ lawsuit even contributed to the decision by the

USDA to withdraw the disputed rule. But the Supreme Court

has made clear that being a catalyst for such change is not

enough to support a claim for attorneys’ fees under the EAJA.

Buckhannon, 532 U.S. at 600. Relief from the court in some

formal fashion is required. This case, however, was dismissed

BETTER FORESTRY v. USDA 6851
before it reached that stage. Accordingly, because neither the

district court nor our court entered relief for Citizens, the district court did not have the power to award Citizens attorneys’

fees. 

III. Conclusion

There was not a material alteration in the parties’ legal relationship sufficient to make Citizens a “prevailing party” under

the EAJA. Accordingly, we reverse the award of attorneys’

fees. 

REVERSED.

HUG, Circuit Judge, dissenting: 

I respectfully dissent. 

Citizens filed a suit that, among other things, sought a ruling that USDA had violated the provisions of NEPA by failing to give appropriate notice of the promulgation of a new

rule to replace the 2000 Plan Development Rule. The district

court ruled that Citizens lacked standing to sue and that the

procedural challenges were not ripe for review. Citizens

appealed, contending that it did have standing and that the

matter was ripe for review. 

The USDA invited our court also to rule on the merits of

the NEPA claim. In its reply brief, the USDA stated: “Even

if the Court finds that [Citizens] has standing and that its

NEPA and ESA claims are ripe, it should affirm the district

court’s grant of summary judgment and denial of injunctive

relief on the alternative ground that [Citizen]’s claims fail on

the merits.” We held that Citizens had standing and the case

was ripe for review, and also held that the USDA violated

NEPA in promulgating the new rule. Citizens for Better For6852 BETTER FORESTRY v. USDA
estry v. U.S. Dep’t of Agric., 341 F.3d 961, 965, 970 (9th Cir.

2003). The holding on the NEPA violation was, in effect, the

equivalent of a declaratory ruling made at the invitation of the

USDA. 

Because Citizens had requested an injunction in addition to

declaratory relief, it is significant that our remand to the district court was only to consider the additional relief of an

injunction. Citizens for Better Forestry, 341 F.3d at 978. The

declaratory judgment was taken care of in our ruling, in which

we held that the USDA had violated NEPA. This was not

dicta, as the USDA contends, but our holding on an issue that

the USDA specifically asked us to address. Once judgment

was entered, this holding was binding on the district court as

the law of the case and was binding precedent in our circuit.

Until the USDA complied with NEPA, proceeding with

enforcement of the new rule was unlawful. This is exactly the

relief Citizens sought in its suit. 

The district court properly awarded attorneys’ fees because

our ruling in Citizens for Better Forestry was “functionally

equivalent to a declaratory judgment.” Citizens for Better v.

U.S. Dep’t of Agric., 497 F. Supp. 2d 1062, 1073 (N.D. Cal.

2007). The majority rejects the equivalency doctrine by relying on precedents that do not control the case at bar. 

Although the Supreme Court in Buckhannon began its analysis by consulting Black’s Law Dictionary, the Court distilled

the dictionary definition of “prevailing party” into two essential requirements. A litigant prevails by: (1) obtaining a “material alteration of the legal relationship of the parties”; and

(2) getting a stamp of “judicial imprimatur on the change.”

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health

& Human Res., 532 U.S. 598, 604-05 (2001) (internal quotation marks omitted); see also Carbonell v. INS, 429 F.3d 894,

898 (9th Cir. 2005) (applying the test). 

BETTER FORESTRY v. USDA 6853
In the course of reconciling prior holdings with its two-part

test, the Buckhannon Court began drawing a line between

“examples” of relief that entitle a party to recover attorneys’

fees, and relief that does not. 532 U.S. at 605. Enforceable

judgments on the merits and court-ordered consent decrees

clearly qualified. Id. at 604. Recovery of fees under the “catalyst theory” did not.1

Id. at 605. As none of these clear examples control this case, we must venture into the gray area of

Buckhannon.

2

Two cases cited in Buckhannon are relevant here. The

majority only mentions Hewitt v. Helms, 482 U.S. 755 (1987).

In that case, the plaintiff (Helms) “obtained no relief,” only “a

favorable judicial statement of law in the course of litigation

that result[ed] in judgment against the plaintiff.” Id. at 760,

763 (emphasis added). As the Buckhannon Court recognized,

Helms could not recover because the “judicial pronouncement

that the defendant has violated the Constitution [was] unaccompanied by ‘judicial relief.’ ” 532 U.S. at 606 (quoting

Hewitt, 482 U.S. at 760). The defendant prevailed on the

ground of qualified immunity. The majority’s declaration that

a “favorable judicial statement of law . . . cannot substitute for

a form of judicial relief” is therefore misleading. As Justice

Scalia noted in Hewitt, the positive statement of law at issue

was irrelevant to the case because the plaintiff lost. Unlike

Helms, Citizens did not lose. 

The Buckhannon Court’s discussion of a second case,

Parham v. Sw. Bell Tel. Co., 433 F.2d 421 (8th Cir. 1970), is

1Prior to Buckhannon, most courts of appeals allowed a plaintiff to “prevail” under the “catalyst theory.” 532 U.S. at 602, 602 n.3. This theory

permitted attorneys’ fees to be awarded in the absence of a “judicially

sanctioned change in the legal relationship of the parties” if the plaintiff

“achieve[d] the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct.” Id. at 601, 605. 

2As the majority recognizes, Buckhannon is broad enough to encompass

other forms of relief. See supra p. 6848 (noting that legally enforceable

settlement agreements and preliminary injunctions can qualify as relief).

6854 BETTER FORESTRY v. USDA
more on point. In Parham, the plaintiff (Parham) sued a

potential employer for racially discriminatory employment

practices in violation of Title VII. The court ruled in Parham’s

favor, “hold[ing] as a matter of law that [Parham’s evidence]

established a violation of Title VII.” Id. at 426. However,

because the employer had successfully initiated an affirmative

action program in the wake of Parham’s lawsuit, the court did

not grant “injunctive relief to enjoin the [employer] from

unlawful employment discrimination.” Id. at 429. Instead, the

court remanded the case with an instruction that the district

court retain jurisdiction over the matter to ensure that the

employer maintained its salutary employment practices. Id. at

429. Despite the lack of formal relief, the court awarded

Parham attorneys’ fees because his “lawsuit acted as a catalyst” for the onset of the employer’s affirmative action

program—a “valuable public service.” Id. at 430. 

The Buckhannon Court distinguished Parham from other

catalyst theory cases as follows: 

Although the Court of Appeals in Parham

awarded attorney’s fees to the plaintiff because his

lawsuit acted as a catalyst which prompted the

defendant to take action seeking compliance with the

requirements of Title VII, it did so only after finding

that the defendant had acted unlawfully. [Therefore,]

Parham stands for the proposition that an enforceable judgment permits an award of attorney’s fees. 

Buckhannon, 532 U.S. at 607 n. 9 (internal quotation marks,

citations, and alterations omitted; emphasis added). Under the

majority’s analysis, Parham would not have been entitled to

attorney’s fees. 

When read together, Buckhannon, Parham, and Hewitt suggest that a plaintiff may recover attorneys’ fees under a functional equivalence theory, provided that the judgment is

enforceable. Cf. Smalbein v. City of Daytona Beach, 353 F.3d

BETTER FORESTRY v. USDA 6855
901, 905 (11th Cir. 2003) (explaining that attorneys’ fees may

be recoverable when a court retains jurisdiction over the terms

of a private settlement agreement or when a court order incorporates such an agreement into a dismissal order because

either action is the “functional equivalent” of an entry of a

consent decree); Buckhannon, 532 U.S. at 618 (Scalia, J., concurring) (“[I]n the case of court-approved settlements . . . ,

even if there has been no judicial determination of the merits,

the outcome is at least the product of, and bears the sanction

of, judicial action in the lawsuit.”). 

Although our 2003 judgment did not formally grant Citizens’ prayer for declaratory relief, our statement that the

USDA violated NEPA was the functional equivalent of a

declaratory judgment. On remand, the district court would

have been bound by this determination regardless of whether

it chose to grant injunctive relief. If the district court had

acted otherwise and reconsidered the issue, we would have

been able to enforce our statement of law pursuant to the law

of the case and law of the circuit doctrines. See Citizens for

Better, 497 F. Supp. 2d at 1073 (citing United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (“[W]here a panel confronts an issue germane to the eventual resolution of the case,

and resolves it after reasoned consideration in a published

opinion, that ruling becomes the law of the circuit . . . .” );

Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703,

715 (9th Cir. 1990) (explaining that the law of the case precludes a district court from revisiting an issue that has been

decided by a higher court in the same case unless one of three

exceptional circumstances, none of which are relevant here,

applies)). Citizens asked for declaratory relief, and Citizens

got it in substance, if not form. 

Our judgment altered the legal relationship of the parties.

Citizens’ position was upheld. The USDA could not lawfully

proceed under its new rule. Moreover, like Parham, Citizens

obtained relief that achieved a broad public good. Plaintiffs

seeking to protect our environment now routinely use our

6856 BETTER FORESTRY v. USDA
statement of law to hold federal agencies accountable for circulating EAs for public review, thereby furthering NEPA’s

goal of protecting the environment through public participation. See, e.g., Ocean Mammal Inst. v. Gates, 546 F. Supp. 2d

960, 972 (D. Haw. 2008); W. Watersheds Project v. Bennett,

392 F. Supp. 2d 1217, 1222 (D. Idaho 2005); Mont. Wilderness Ass’n v. Fry, 310 F. Supp. 2d 1127, 1144 (D. Mont.

2004). Thus, Citizens prevailed. 

None of the cases cited by the majority changes this fact.

The statement of law at issue in Hewitt provided only conditional relief. 482 U.S. at 758. Once the district court determined that the prison officials were protected by qualified

immunity, the conditional relief evaporated. Id. at 760. Our

ruling that the USDA violated NEPA was not conditional. It

provided relief because the USDA could not lawfully proceed

under the new rule.

The other two cases on which the majority relies, Benton

v. Oregon Student Assistance Commission, 421 F.3d 901 (9th

Cir. 2005), and Poland v. Chertoff, 494 F.3d 1174 (9th Cir.

2007), are also distinguishable. Benton dealt with a damages

judgment only, and “nothing in the language of the [district

court’s] judgment . . . suggest[ed] that [the] plaintiff was

awarded declaratory relief.” 421 F.3d at 908; see also id. at

903 (“Although plaintiff contends that she received a declaratory judgment that her rights were violated, a review of the

judgment reveals that the judgment is a damages judgment

only.”) The district court’s statement that plaintiff’s constitutional rights had been violated served no other purpose than

to support its imposition of a nominal damages award. Id. at

908. 

Poland is distinguishable from the instant case because of

its procedural posture. In that case, the district court found

that the plaintiff had been constructively discharged and

unlawfully retaliated against; however, the court only

awarded attorney’s fees under the former claim. Poland, 494

BETTER FORESTRY v. USDA 6857
F. 3d at 1179. On appeal, we reversed on the discharge claim

and affirmed on the retaliation claim. Id. at 1184-86. Because

the district court awarded damages solely on the reversed

claim, we vacated the award of attorneys’ fees, noting that the

plaintiff would again be entitled to them if he “obtain[ed] any

form of relief on remand.” Id. at 1187. Poland does not stand

for the proposition that a favorable statement of law never

qualifies as relief. We could not have affirmed an award of

attorneys’ fees while simultaneously reversing the basis of the

award. 

Our ruling that the USDA had violated NEPA was equivalent to a declaratory judgment and did provide the relief Citizens had sought. The USDA could no longer lawfully proceed

under the new rule. The award of attorneys’ fees was therefore proper, and we should affirm the district court. 

6858 BETTER FORESTRY v. USDA