FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WESTERN WATERSHEDS PROJECT,
Plaintiff-Appellant,
v. No. 09-35708
INTERIOR BOARD OF LAND APPEALS, D.C. No.
4:07-cv-00498-BLW
BUREAU OF LAND MANAGEMENT,
AND UNITED STATES OPINION
DEPARTMENT OF THE INTERIOR,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted
September 1, 2010—Seattle, Washington
Filed October 12, 2010
Before: Michael Daly Hawkins and M. Margaret McKeown,
Circuit Judges, and Thomas J. Whelan,
Senior District Judge.*
Opinion by Judge Hawkins
*The Honorable Thomas J. Whelan, Senior United States District Judge
for the Southern District of California, sitting by designation.
17027
WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS 17029
COUNSEL
Todd C. Tucci, Advocates for the West, Boise, Idaho, for the
plaintiff-appellant.
17030 WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS
Syrena C. Hargrove, Assistant United States Attorney, Boise,
Idaho, for the defendants-appellees.
OPINION
HAWKINS, Senior Circuit Judge:
In this appeal, which involves the interplay between the
issuance or renewal of Bureau of Land Management (“BLM”)
grazing permits and the fee-shifting provisions of the Equal
Access to Justice Act (“EAJA”), Western Watersheds Project
(“Western Watersheds”) appeals the summary judgment
determination that EAJA fees were not available to Western
Watersheds because its environmental claims were brought in
a grazing permit renewal proceeding. We agree with the dis-
trict court’s reasoning and affirm.
I. Background
A. Statutory and Regulatory Framework
1. The Taylor Grazing Act of 1934
The Taylor Grazing Act of 1934 authorizes the Secretary of
the Interior to issue federal grazing leases to qualified appli-
cants. 43 U.S.C. § 315m. BLM, an agency within the Depart-
ment of Interior, implements the Act and, since 1995, has
required ranchers grazing cattle on federal land to obtain a
grazing permit. 43 C.F.R. § 4140.1(b)(1). BLM also monitors
rangeland health (i.e., environmental issues within a given
grazing allotment) and, based on its evaluation of a particular
allotment, may determine that corrective actions are neces-
sary. See 43 C.F.R. § 4180.2(c). These permitting and moni-
toring functions overlap because permittee actions may affect
rangeland health. Accordingly, when a party seeks a new or
renewed grazing permit, BLM considers what terms, if any,
WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS 17031
are necessary to include in the permit to improve rangeland
health. 43 C.F.R. § 4160.1.
To determine the necessary terms, BLM considers the per-
mit against the standards and guidelines for the relevant geo-
graphical area, which in turn requires consideration of issues
such as water quality and habitat for endangered or threatened
species. 43 C.F.R. § 4180.2(d). Once BLM has identified
terms for the permit, it issues a Proposed Grazing Decision.
43 C.F.R. § 4160.1. An applicant, permittee, or other inter-
ested party may protest this decision. 43 C.F.R. § 4160.2.
Absent a protest and reconsideration, the proposed decision
becomes a Final Grazing Decision, which an interested party
may then appeal. 43 C.F.R. §§ 4160.3, 4.470. If no appeal is
taken, or if a decision on appeal affirms an agency decision,
the Final Grazing Decision’s terms become the terms of the
new grazing permit or renewal. 43 C.F.R. § 4130.3-1(a).
Thus, agency action results in either the grant or denial of a
permit—or its renewal or non-renewal—which includes con-
sideration of rangeland health and provides opportunity for
interested parties to object.
2. The Equal Access to Justice Act
The EAJA partially waives the sovereign immunity of the
United States, allowing an award of attorneys’ fees in certain
circumstances. In general, “[a]n agency that conducts an
adversary adjudication shall award, to a prevailing party other
than the United States, fees and other expenses incurred by
that party in connection with that proceeding,” though there
are exceptions if “the adjudicative officer of the agency finds
that the position of the agency was substantially justified or
that special circumstances make an award unjust.” 5 U.S.C.
§ 504(a)(1).
Central to this appeal is whether the underlying proceeding
falls within the EAJA’s definition of “adversary adjudica-
tion.” In relevant part, “adversary adjudication” means “an
17032 WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS
adjudication under section 554 of the Administrative Proce-
dure Act (“APA”) in which the position of the United States
is represented by counsel or otherwise, but excludes an adju-
dication for the purpose of establishing or fixing a rate or for
the purpose of granting or renewing a license.” 5 U.S.C.
§ 504(b)(1)(C)(i) (emphasis added). A grazing “permit,” such
as here, is a “license” for the purpose of this statute. See 5
U.S.C. §§ 504(b)(2); 551(8).
B. Factual History
Western Watersheds is a non-profit, conservation group
with a history of litigation success. In 2001, Western Water-
sheds obtained an injunction against BLM (“the Hahn injunc-
tion”), requiring BLM to correct environmental degradation
caused through BLM’s management of public lands in Idaho,
including its issuance of grazing permits to cattle ranchers on
the Hardtrigger allotment of the Owyhee Resource Area in
southwestern Idaho. See Idaho Watersheds Project v. Hahn,
307 F.3d 815, 820-21 (9th Cir. 2002), abrogated on other
grounds by Winter v. Natural Res. Def. Council, Inc., 129 S.
Ct. 365, 380-82 (2008), as recognized in Monsanto Co. v.
Geertson Seed Farms, 130 S. Ct. 2743, 2756-57 (2010).
In response to the Hahn injunction, BLM reviewed its graz-
ing management in the Hardtrigger allotment, concluding that
livestock grazing was causing violations of applicable mini-
mum rangeland health standards. In April 2005, BLM sought
to address this problem by issuing five final decisions renew-
ing amended 10-year grazing permits that included new
requirements for rangeland improvements, such as construc-
tion of new fences, pipelines, troughs, cattle guards, and other
range improvements. BLM supported these decisions with an
Environmental Assessment and a Finding of No Significant
Impact, pursuant to the National Environmental Protection
Act (“NEPA”), see 42 U.S.C. §§ 4321-4347.
In May 2005, Western Watersheds filed administrative
appeals of each permit, alleging numerous violations of
WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS 17033
NEPA and other federal regulations, including claims that
BLM failed to examine environmental impacts on sensitive
plants and wildlife that would result from the construction of
the rangeland improvements prescribed in the renewed per-
mits. An administrative law judge (“ALJ”) consolidated the
appeals and granted a partial stay. The parties then entered
into a Stipulated Settlement Agreement that, once approved,
reversed BLM’s decisions renewing the permits and enjoined
construction of all range developments.
Having succeeded, Western Watersheds moved for fees and
costs under the EAJA. The ALJ denied the motion, finding
Western Watersheds was not a “prevailing party,” an issue
disputed in the administrative proceedings but uncontested by
the government before the district court.
Western Watersheds appealed to the Interior Board of Land
Appeals (“Appeals Board”). The Appeals Board affirmed the
ALJ’s decision denying fees, though it declined to affirm the
reasoning that Western Watersheds was not a prevailing
party. Instead, the Appeals Board found the appeal challenged
“renewals of five 10-year grazing permits on the [Hardtrig-
ger] Allotment” and that it therefore fell “within one of the
exceptions to the class of adversary adjudications for which
fees are awarded.” The Appeals Board deemed the case con-
trolled by William J. Thoman, 157 IBLA 95 (2002), in which
it had noted that, while not every case involving a license nec-
essarily falls within the EAJA’s exception, those adjudica-
tions “for the purpose of granting or renewing a license”
clearly do. While the Appeals Board accepted that Western
Watersheds’ motive behind its appeal was to force environ-
mental compliance rather than to dispute a permit it sought for
itself, the Appeals Board explained that “appellants’ subjec-
tive motivation for pursuing an appeal cannot change” the
objective character of the underlying proceeding being chal-
lenged, which in this case was a grazing permit renewal.
After the Appeals Board denied reconsideration, Western
Watersheds filed in the district court pursuant to the APA and
17034 WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS
moved for summary judgment, seeking reversal of the
Appeals Board’s decision. Characterizing the issue as
“whether the adjudication was for the purpose of granting or
renewing a license so as to preclude attorney fees,” the district
court found “that the nature of the initial proceedings”—
rather than the intent of the party seeking fees—“defines the
purpose of the adjudication.” Consequently, the district court
denied Western Watersheds’ motion for summary judgment
and affirmed the Appeals Board’s decision. This appeal fol-
lowed.
II. Standard of Review
The district court’s interpretation of the EAJA as well as its
denial of summary judgment in an administrative action are
reviewed de novo. See Zambrano v. I.N.S., 282 F.3d 1145,
1149 (9th Cir. 2002), amended by 302 F.3d 909 (9th Cir.
2002); Gifford Pinchot Task Force v. U.S. Fish & Wildlife
Serv., 378 F.3d 1059, 1065 (9th Cir. 2004). A final decision
of the Appeals Board shall be set aside only if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accor-
dance with law.” 5 U.S.C. § 706(2)(A); Gilmore v. Lujan, 947
F.2d 1409, 1411 (9th Cir. 1991).
III. Discussion
[1] The sole issue here is whether Western Watersheds’
administrative appeal was an adjudication “for the purpose of
granting or renewing a license” and thus excepted from the
definition of “adversary adjudication” for which fees are oth-
erwise recoverable under the EAJA.1
1
In its brief, Western Watersheds separately argues that BLM was not
only renewing a permit, but also modifying and amending an existing per-
mit. However, Western Watersheds abandoned this argument before the
district court and failed to explain any unique circumstances that would
warrant hearing the claim for the first time on appeal. See F.T.C. v. Neovi,
Inc., No. 09-55093, 2010 WL 2365956, at *7 n.7 (9th Cir. June 15, 2010)
WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS 17035
The parties offer competing views on how to determine the
“purpose” of an adjudication and, correspondingly, the avail-
ability of attorneys’ fees under the EAJA. The Appeals Board
argues that the purpose of an administrative appeal is con-
trolled by the nature of the underlying agency action—in this
case, the renewal of grazing permits. Western Watersheds
contends that the purpose of its appeal was to enforce federal
environmental laws, not to obtain or renew a license for itself.
No doubt this was Western Watersheds’ motive, and it suc-
ceeded in its effort, but this appeal turns on whether the “pur-
pose” described in the license exception to the EAJA reflects
the nature of the underlying proceeding, or if it can instead
reflect a party’s reason for appealing a permit renewal. Both
parties claim that the plain text of the statute is sufficient to
resolve the case. We agree, and conclude that the language of
the EAJA supports the Appeals Board’s interpretation.
Language and Context
[2] The statutory language at issue reads as follows:
“ ‘[A]dversary adjudication’ means (i) an adjudica-
tion under section 554 of th[e APA] in which the
position of the United States is represented by coun-
sel or otherwise, but excludes an adjudication for the
purpose of establishing or fixing a rate or for the
purpose of granting or renewing a license.” 5 U.S.C.
§ 504(b)(1)(C)(i) (emphasis added).
The “first step in interpreting a statute is to determine
whether the language at issue has a plain and unambiguous
(noting that “appellate courts will not consider an argument unless it has
been raised sufficiently for the trial court to rule on it” (internal citation
and quotation marks omitted)). The argument is thus deemed waived, and
we refrain from considering whether EAJA fees would be available if the
underlying grazing decisions were deemed permit modifications rather
than permit renewals.
17036 WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS
meaning with regard to the particular dispute in the case,” and
the “inquiry must cease if the statutory language is unambigu-
ous and the statutory scheme is coherent and consistent.” Rob-
inson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (internal
quotation marks omitted). Whether statutory language is suffi-
ciently plain or not is “determined by reference to the lan-
guage itself, the specific context in which the language is
used, and the broader context of the statute as a whole.” Id.
at 341 (internal citations omitted).
[3] The most natural reading of the EAJA text favors inter-
preting the “purpose” of an adjudication to be defined by the
objective nature of the agency action in question, rather than
the subjective motives of the challenging party. In the absence
of statutory language directing otherwise, the purpose of an
adjudicative proceeding is presumed to remain the same
throughout the duration of its administrative life, regardless of
the motives of an interested party challenging the decision on
appeal. This presumption is supported by both the plain mean-
ing of the text and its statutory context.
[4] Merriam-Webster defines “purpose” as “something set
up as an object or end to be attained.” Merriam-Webster’s
Collegiate Dictionary 1011 (11th ed. 2004). The more natural
reading of whether an adjudication is “for the purpose of
granting or renewing a license” looks to what the end result
of the adjudication ultimately will be, which in this case is the
renewal or non-renewal of a grazing permit. While Western
Watersheds may have been inspired to challenge BLM’s graz-
ing permit decisions by its interest in enforcing environmental
protection laws, it nonetheless pursued its goals within the
context of permitting renewal proceedings. Furthermore,
because consideration of environmental factors is embedded
in BLM’s permitting process, a challenge to a grazing permit
on environmental grounds still falls naturally within the
parameters of an adjudication whose purpose is to grant or
deny a permit or permit renewal. See 43 C.F.R. §§ 4160.2,
4180.2.
WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS 17037
[5] Although Western Watersheds insists its objective in
bringing the appeal was not to obtain or renew a license for
itself, the EAJA nowhere speaks in terms of whether a party
is seeking to “obtain” a license, but rather whether the agency
is considering a “grant” of a license. 5 U.S.C.
§ 504(b)(1)(C)(i). Western Watersheds attempts to bolster its
argument by inserting a word in the EAJA license exception
that is simply not there: “only those administrative adjudica-
tions brought ‘for the purpose of granting or renewing a
license.’ ” That Western Watersheds must insert the term
“brought” in order to effect its desired construction of the text
illustrates that the plain meaning of the language does not
support reading the adjudicative “purpose” from the perspec-
tive of the challenging party. The language chosen by Con-
gress to describe the “purpose” of an adjudication refers to the
nature of the agency action rather than the individual party’s
reasons for bringing the appeal.
The specific context of the statute also supports the
Appeals Board’s reading. When Congress limited the kinds of
adjudications for which attorneys’ fees are recoverable under
the EAJA, it relied on a well-recognized distinction under the
APA between applications for a license and adjudications in
which an agency seeks “the withdrawal, suspension, revoca-
tion, or annulment of a license.” 5 U.S.C. § 558(c). Thus, by
the time the EAJA was passed, renewals fell into the “licens-
ing” category and not the “modification” category. This long-
standing distinction is reflected in the model regulations
developed by the Administrative Conference of the United
States, tasked by Congress with advising all federal agencies
in consistently interpreting and applying the EAJA, and in the
Department of the Interior’s regulations. See Implementation
of the Equal Access to Justice Act (“Implementation Guide-
lines”), 46 Fed. Reg. 15,895, 15,896 (Mar. 10, 1981); 43
C.F.R. § 4.603.
The distinction also finds support in the cases cited by the
Appeals Board and lends support to the claim that the struc-
17038 WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS
ture of the EAJA excludes attorneys’ fees recovery when the
underlying proceeding is one whose purpose is renewal,
rather than modification, of a license. See Bankers Life &
Cas. Co. v. Callaway, 530 F.2d 625, 634-35 (5th Cir. 1976);
Hamlin Testing Labs., Inc. v. U.S. Atomic Energy Comm’n,
357 F.2d 632, 638 (6th Cir. 1966). Finally, while we are under
no obligation to defer to the Appeals Board’s interpretation of
the EAJA, see Amer. Pac. Concrete Pipe Co. v. NLRB, 788
F.2d 586, 590 (9th Cir. 1986), we note that its conclusion is
consistent with the Appeals Board’s previous administrative
decisions, which similarly rely on this distinction in determin-
ing when fees are available.2
Western Watersheds, on the other hand, offers no persua-
sive authority compelling its preferred conclusion. The two
cases it cites that interpret the EAJA license exception stand
only for the proposition that when a party challenges a
2
In William J. Thoman, the Appeals Board rejected the claim that a
party’s reason for challenging a BLM grant or renewal of a license
affected the “purpose” of the underlying proceeding. 157 IBLA 95, 98-99
(2002). The case involved an appeal by a grazing permit holder, Thoman,
from BLM’s grant of a crossing permit to his neighbor. Thoman’s theory
in challenging his neighbor’s permit was that BLM’s grant of the permit
to the neighbor served as a modification of Thoman’s own grazing permit
because the crossing would damage the available forage on the allotment
over which Thoman held a grazing preference. Id. at 96. In concluding
that fees were unavailable because the underlying proceeding was “for the
purpose of granting or renewing a license,” irrespective of Thoman’s own
personal objectives, the Appeals Board explained why a grant or renewal
of a permit was excepted from the EAJA, while the “suspension, annul-
ment, withdrawal, limitation, amendment, modification, or conditioning”
was not, as follows:
“The dividing line seems to be between those activities in which
the Government is acting in a purely proprietary capacity in
deciding whether or not to grant or renew a license affording
rights to individuals (in this case denominated as a grazing per-
mit), and those actions subsequently undertaken within the con-
fines of an issued license which may adversely impact upon the
enjoyment of rights already conferred by the Government.” Id. at
105.
WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS 17039
renewal or grant of a permit for himself, such a challenge is
excepted from EAJA fee shifting. See Bullwinkel v. U.S.
Dep’t of Transp., 787 F.2d 254, 256-57 (7th Cir. 1986); Naka-
mura v. Heinrich, 17 Ct. Int’l Trade 119, 121 (1993). These
cases hardly help Western Watersheds. Demonstrating that a
court will find the license exception applicable in these cases
does not lead to the conclusion that a court would have ruled
differently had a party not seeking the permit for itself (like
Western Watersheds, here) been the one to challenge the deci-
sion. In fact, it seems the decisions Western Watersheds cites
actually looked to the nature of the license or permit itself, not
the challenging party’s intent. See Bullwinkel, 787 F.2d at
256-57; Nakamura, 17 Ct. Int’l Trade at 120-21. In other
words, Western Watersheds’ cases offer little, if any, support
for its argument.
Purpose and Intent
It is true that Congress adopted the EAJA “to eliminate
financial disincentives for those who would defend against
unjustified governmental action and thereby to deter the
unreasonable exercise of Government authority.” Ardestani v.
I.N.S., 502 U.S. 129, 138 (1991). Western Watersheds also
correctly points out that the Administrative Conference has
interpreted the exceptions to the EAJA narrowly. See Imple-
mentation Guidelines, 46 Fed. Reg. 15,895, 15,896 (Mar. 10,
1981).3 Nonetheless, these concerns are not so compelling that
they outweigh a competing presumption in favor of constru-
ing waivers of sovereign immunity narrowly, particularly
when the plain meaning of the statutory text is so clear. See
Ardestani, 502 U.S. at 137-38.
3
As Western Watersheds points out, the Administrative Conference
finalized these model rules in May 1986, and the final rules largely
adopted the Administrative Conference’s broad interpretation of the
EAJA. See Equal Access to Justice Act: Agency Implementation, 46 Fed.
Reg. 32,900, 32,900-32,915 (June 25, 1981).
17040 WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS
[6] The EAJA partially waives the sovereign immunity of
the United States by creating a limited, precisely-defined class
of adjudications in which an award of attorneys’ fees is
allowed, see 5 U.S.C. §§ 504(a)(1), 504(b)(1)(C)(i), 554, and,
as with all waivers of sovereign immunity, the EAJA’s waiver
must be strictly construed. Accepting Western Watersheds’
interpretation of the EAJA would not only complicate the
implementation of the EAJA from a practical standpoint, in
that it would require a reviewing court to examine the subjec-
tive intent of each individual party in filing its appeal rather
than simply looking to the type of proceeding at issue to
determine whether the proceeding is an “adversary adjudica-
tion,” it could, moreover, open a fairly straightforward loop-
hole in the EAJA’s waiver of the sovereign immunity of the
United States.
[7] Though no one disputes Western Watersheds’ environ-
mental motives in the present case, one could easily imagine
a scenario in which a permittee uses a third party as a proxy
for making his own arguments before the Appeals Board and
then seeks fees for that third party—exactly the scenario that
the EAJA’s license exception seeks to avoid. In affirming the
lower court’s interpretation of the license exception, we
ensure that we do not enlarge Congress’ waiver of sovereign
immunity beyond what it clearly intended. Because Western
Watersheds conceded before the district court that the under-
lying agency action at issue was a permit renewal proceeding,
we also run no risk of expanding the narrow license exception
of the EAJA.
Legislative History
Because the text of the statute is clear in light of its plain
meaning and context, we refrain from examining the legisla-
tive history of the EAJA.
IV. Conclusion
Because Western Watersheds’ commendable efforts to
insure environmental compliance occurred within a proceed-
WESTERN WATERSHEDS v. INTERIOR BD. LAND APPEALS 17041
ing Congress excepted from EAJA recovery, we affirm the
district court’s determination in that regard.
AFFIRMED.