FILED
NOT FOR PUBLICATION SEP 16 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH A. PAKOOTAS, an individual No. 10-35045
and enrolled member of the Confederated
Tribes of the Colville Reservation; et al., D.C. No. 2:04-cv-00256-LRS
Plaintiffs - Appellees,
MEMORANDUM*
STATE OF WASHINGTON,
Plaintiff-intervenor -
Appellee,
v.
TECK COMINCO METALS, LTD., a
Canadian corporation,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Submitted August 9, 2011**
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: ALARCÓN, KLEINFELD, and CLIFTON, Circuit Judges.
We previously published two opinions in the underlying case, Pakootas v.
Teck Cominco Metals, Ltd., 452 F.3d 1066 (9th Cir. 2006), and Pakootas v. Teck
Cominco Metals, Ltd, 646 F.3d 1214 (9th Cir. 2011). We now address a separate
appeal, from an award of attorney’s fees in the underlying case.1
Teck Cominco Metals Ltd. appeals the district court’s grant of attorney’s
fees to Pakootas, Michel, and the State of Washington under the Comprehensive
Environmental Response, Compensation, and Liability Act (“CERCLA”).
The district court awarded attorney’s fees based on 42 U.S.C. § 9659(f),
which applies specifically to CERCLA citizen suits. Section 9659(f) provides:
The court, in issuing any final order in any action brought pursuant to this
section, may award costs or litigation (including reasonable attorney and
expert witness fees) to the prevailing or the substantially prevailing party
whenever the court determines such an award is appropriate.
1
This panel assumed jurisdiction of this appeal November 19, 2010, but the
briefs preceded our decision on the merits of the underlying case. We ordered
supplemental briefing to address the effect of our decision on the merits. The
supplemental briefs were filed August 8 and 9, 2011.
2
Id. (emphasis added). “We review a district court’s determination regarding
‘prevailing party’ status de novo, as ‘[t]he question of whether a judgment has
materially altered the legal relationship of the parties is a legal one.’” La
Asociacion de Trabajadores v. City of Lake Forest, 624 F.3d 1083, 1089 (9th Cir.
2010).
“[F]or a litigant to be a ‘prevailing party’ for the purpose of awarding
attorneys’ fees, he must meet two criteria: he must achieve a material alteration of
the legal relationship of the parties, and that alteration must be judicially
sanctioned.” P.N. v. Seattle Sch. Dist. No. 1, 474 F.3d 1165, 1172 (9th Cir. 2007)
(internal quotation marks omitted). In Saint John’s Organic Farm v. Gem County
Mosquito, we articulated “three conditions necessary” for prevailing party status
based on a settlement agreement between the parties to the litigation: “(1) judicial
enforcement; (2) material alteration of the legal relationship between the parties;
and (3) actual relief on the merits of [plaintiff’s] claim.” 574 F.3d 1054, 1059,
1061 (9th Cir. 2009).
Here, the district court concluded that a settlement agreement between Teck
Cominco and the Environmental Protection Agency “materially altered the legal
3
relationship between Defendant and Plaintiffs Pakootas and Michel.” But none of
the plaintiffs in this case were parties to the settlement agreement between Teck
Cominco and the EPA. The settlement agreement was extrajudicial and was not
incorporated into a court order. We have held that “a plaintiff ‘prevails,’ and thus
is entitled to attorney’s fees and costs, when he or she enters into a legally
enforceable settlement agreement with the defendant.” Richard S. v. Dep’t of
Developmental Servs., 317 F.3d 1080, 1086 (9th Cir. 2003) (emphasis added). We
have explained that “[i]n these situations, the legal relationship is altered because
the plaintiff can force the defendant to do something he otherwise would not have
to do.” Id. (emphasis added) (quoting Barrios v. Cal. Interscholastic Fed’n, 227
F.3d 1128, 1134 (9th Cir. 2002)).
The district court acknowledged that it and parties were “unable to find any
case awarding fees to an individual or entity that, although a party to the litigation,
is not a party to the settlement agreement.” The settlement agreement between the
defendant and a third party did not materially alter the legal relationship between
the defendant and the plaintiffs, even if it may have produced a benefit to the non-
settling plaintiffs. Unlike Barrios v. California Interscholastic Federation, 277
F.3d 1128 (9th Cir. 2002), plaintiffs were not parties to the settlement agreement.
4
The settlement agreement expressly provides that it creates no rights for “any
person not a Party to this Agreement.” Nor was the EPA, which settled with Teck
Cominco, a party to the litigation. Plaintiffs abandoned their claims for declaratory
and injunctive relief, and lost on their claims for civil penalties. The district court
erred in granting attorney’s fees to Pakootas, Michel, and the State of Washington
because they did not achieve a material alteration of their legal relationship with
Teck Cominco through litigation. Plaintiffs obtained no judicial or judicially
sanctioned relief on any of their claims, so they are not “prevailing parties” for
purposes of an attorney’s fees award.
We reverse and remand so that the attorney’s fees award may be vacated,
and for such other relief as may be appropriate.
REVERSED and REMANDED.
5