FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WESTERN WATERSHEDS PROJECT, 

Plaintiff-Appellant,

No. 11-35464 v.

D.C. No. STEVE ELLIS, Director, Idaho State 

Office, Bureau of Land 1:04-cv-00181-BLW

Management; RICK VANDER VOET; OPINION

BUREAU OF LAND MANAGEMENT,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted

August 27, 2012—Seattle, Washington

Filed October 9, 2012

Before: Mary M. Schroeder and Ronald M. Gould,

Circuit Judges, and Jed S. Rakoff, Senior District Judge.*

Opinion by Judge Schroeder

*The Honorable Jed S. Rakoff, Senior United States District Judge for

the Southern District of New York, sitting by designation. 

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COUNSEL

Todd C. Tucci, Boise, Idaho, for plaintiff-appellant Western

Watersheds Project.

Syrena C. Hargrove, Assistant United States Attorney, Boise,

Idaho, for defendants-appellees Steve Ellis, Director of Idaho

Bureau of Land Management, et al.

OPINION

SCHROEDER, Circuit Judge:

This appeal involves an attorneys’ fee dispute that added a

rancorous coda to long-running grazing permit litigation in

Idaho that was all ably overseen by the district court. The

plaintiff, Western Watersheds Project (“WWP”), originally

filed this action in 2004 challenging the Bureau of Land Management’s (“BLM”) renewal of grazing permits in the Jarbidge Resource Area (“JRA”), covering a large expanse of

Southern Idaho. In 2005, the district court ruled in a published

opinion that WWP’s challenge had merit and that the BLM

had violated federal statutes by inadequately protecting habitat of threatened, endangered, or sensitive species. See WestWESTERN WATERSHEDS PROJECT v. ELLIS 12221
ern Watersheds Project v. Bennett (WWP I), 392 F. Supp. 2d

1217, 1227-29 (D. Idaho 2005).

The parties in 2006 entered into what they thought was a

settlement of the entire dispute, but in July of 2007 a massive

fire changed the situation dramatically. The BLM then

allowed grazing on unburned areas to continue, and after taking several months to regroup, began issuing new grazing

authorizations. WWP successfully challenged the post-fire

grazing decisions and authorizations as inadequately protecting wildlife habitat, but the district court denied WWP’s claim

for fees, and this appeal followed. The issue before us is thus

whether the district court erred in denying plaintiff WWP fees

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

§ 2412(d)(1)(A). 

WWP’s position is that the district court considered only

the reasonableness of the underlying agency decision to issue

grazing authorizations after the fire, and did not adequately

consider the reasonableness of the litigation strategy defending that decision. Our review of the record convinces us that

the district court did consider both factors, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The background of the dispute is more fully explained in

the district court’s 2005 opinion. WWP I, 392 F. Supp. 2d at

1220-1222. The BLM has divided the public lands it manages

into administrative segments it calls Resource Areas. See 43

C.F.R. § 1601.0-5. Each Resource Area is required to have a

Resource Management Plan (“RMP”). See 43 U.S.C.

§§ 1701-84; see also 43 C.F.R. § 1610.1(b). The BLM has

managed the Jarbidge Resource Area, an area of approximately 1.7 million acres of land in Southern Idaho, pursuant

to the RMP completed in 1987. A key issue in managing the

JRA has been preventing further environmental deterioration

caused by excessive grazing. A related concern has been damage to the habitat for listed species and candidates for listing

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under environmental statutes like the Endangered Species

Act. Of particular concern have been the habitats for the sage

grouse and pygmy rabbit, species whose numbers have dramatically declined during the last century. 

In 2004, WWP challenged the BLM’s renewal of grazing

permits for 28 of the allotments managed under the 1987 plan.

WWP contended that the permits conflicted with the RMP’s

provisions to protect wildlife habitat. The BLM responded

that such provisions were aspirational rather than mandatory.

The district court ruled otherwise, holding that the provisions

spoke “in terms of requirements, not suggestions.” WWP I,

392 F. Supp. 2d at 1227. The district court enjoined grazing

on the challenged allotments pending the BLM’s completion

of a new environmental analysis. These rulings are not at

issue here. 

The 2005 rulings resulted in the parties forming their Settlement Agreement. It established interim grazing restrictions

that were to apply during the time frame the Agreement set

for the BLM to complete a new RMP for the Jarbidge Area,

together with a supporting Environmental Impact Statement.

The Settlement Agreement also contemplated that the new

RMP would be completed in 2009. The Settlement Agreement resolved all of the issues concerning attorneys’ fees and

costs up through that stage of the litigation. 

All these well-laid plans were frustrated, however, when a

massive wildfire, termed by the district court “catastrophic,”

swept through the area in 2007. The fire, known as the Murphy Complex Fire, burned more than 400,000 acres, destroying most of the known pygmy rabbit habitat and sage grouse

nesting habitat. It also destroyed much of the grazing land. 

In early 2008 the BLM began issuing authorizations for

grazing on the unburned areas. The fire’s habitat destruction

and the new grazing authorizations caused WWP to file a

motion to reopen the litigation in order to seek an injunction

WESTERN WATERSHEDS PROJECT v. ELLIS 12223
against grazing on many of the remaining unburned allotments. Although the district court declined to alter the permits

covered by the Agreement, it ruled in favor of WWP with

respect to the remaining allotments. The district court held

that the government had to reduce the grazing in the unburned

areas to provide needed wildlife habitat. The court observed,

however, that the government would act in good faith to

reduce grazing and therefore denied as unnecessary WWP’s

request for a formal injunction against all grazing pending the

required reexamination of the grazing authorizations. 

None of those 2009 district court rulings are at issue in this

appeal. What is at issue is WWP’s subsequent motion for

attorneys’ fees as the prevailing party. Under the EAJA, a prevailing party is generally entitled to fees against the government unless the position of the government was substantially

justified. 28 U.S.C. § 2412(d)(1)(A); see Gonzales v. Free

Speech Coalition, 408 F.3d 613, 618 (9th Cir. 2005). The district court denied WWP attorneys’ fees and WWP appeals,

contending the district court ignored one of the factors it was

required to consider in determining whether the government’s

position in this case was substantially justified.

DISCUSSION

[1] In an action brought by or against the United States, the

EAJA requires the court to award fees and costs to the “prevailing party other than the United States . . . unless the court

finds that the position of the United States was substantially

justified or that special circumstances make an award unjust.”

28 U.S.C. § 2412(d)(1)(A). In determining whether the position of the United States was substantially justified under the

EAJA, a court must look “both to the government’s position

during litigation and to ‘the action or failure to act by the

agency upon which the civil action is based.’ ” United States

v. Marolf, 277 F.3d 1156, 1161 (9th Cir. 2002) (quoting 28

U.S.C. § 2412(d)(1)(B)). A position is substantially justified

if it has a “reasonable basis in both law and fact.” Id. The

12224 WESTERN WATERSHEDS PROJECT v. ELLIS
government has the burden to show that its position was substantially justified. Id. (citing Gutierrez v. Barnhart, 274 F.3d

1255, 1258 (9th Cir. 2001)). In this case, the underlying

action is the post-fire decision to allow grazing in the

unburned areas. WWP argued that in taking this action, the

BLM ignored the district court’s earlier ruling that habitat

preservation was mandatory.

In denying fees for the post-fire litigation, the district court

gave the following explanation: 

BLM was doing the best it could in this dire situation. While the BLM was committing the same error

in interpretation after the fire as it did before, its

post-fire error was the result of managers scrambling

to salvage something from a disaster, and was not a

blatant disregard of the [c]ourt’s prior decision. . . .

The landscape had so changed that a reasonable

argument could be made to support the BLM’s management, even if that argument ultimately proved

unsuccessful.

WWP now argues that the district court did not evaluate the

reasonableness of BLM’s litigation position, defending the

grazing authorizations, when the court denied WWP’s motion

for fees. WWP points to the district court’s description of the

changed landscape and asserts that the district court considered only the underlying decision of the BLM to authorize

grazing in the unburned areas, but not its subsequent litigation

position defending that strategy.

[2] The district court’s opinion, however, refers not only to

the unexpected events that led to the agency grazing decision,

but also the reasonableness of defending that decision. In the

briefing to the district court on the fee issue, both parties

acknowledged the need for the court to consider the underlying agency decision as well as its position in the litigation.

The district court stated that “a reasonable argument could be

WESTERN WATERSHEDS PROJECT v. ELLIS 12225
made to support the BLM’s management, even if that argument ultimately proved unsuccessful.” The “unsuccessful”

argument was the one made during the post-fire litigation. 

The district court’s explanation addressed WWP’s principal

argument that the BLM was attempting to defend an interpretation of the RMP that the district court had rejected in its

2005 opinion. In the district court, WWP’s attack on both the

underlying agency decision and its litigation strategy had the

same focus. WWP’s argument did not separate the litigation

strategy from the grazing decision. We therefore cannot fault

the district court for not parsing WWP’s argument in the way

that WWP asks us to do in this appeal.

[3] WWP stated before the district court that neither the

underlying actions nor the litigation position could be substantially justified because the BLM was “again misreading

the RMP,” just as it had in the 2005 litigation. The district

court, in rejecting the BLM’s post-fire position, explained in

meticulous detail how conditions had changed dramatically

due to the fire. Its 2009 decision made 255 total findings of

fact, including 21 separate findings of fact on the effects of

the Murphy Complex Fire. The district court agreed with

WWP that the BLM had made the same error in interpretation, but said BLM was not “blatant[ly] disregard[ing] [ ] the

[c]ourt’s prior decision.” Rather it was “scrambling to salvage

something from a disaster.” The record supports this evaluation. There was no abuse of discretion in denying fees.

AFFIRMED.

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