Oro Vaca, Inc. v. Norton

BERZON, Circuit Judge,

concurring.

I would hold that Oro Vaca was a prevailing party. The June 30 and July 24 stipulations were entered as court orders and therefore have any necessary judicial imprimatur.1 See Labotest, Inc. v. Bonta, 297 F.3d 892, 895 (9th Cir.2002). The orders provided substantial relief to Oro *438Vaca, as they permitted grazing in the Little Humboldt land allotment for essentially the remainder of the 2000 grazing season. In contrast, the Bureau of Land Management(BLM)’s order permitted no grazing during that season unless certain fences were built; one of the fences was not going to be built, and the other was built incorrectly.

Under our case law, preliminary relief that does not resolve the dispute between the parties can satisfy the prevailing party test if the preliminary relief accomplishes “one of the main purposes of [the] lawsuit” and there is no judgment against that party on the merits at the conclusion of the case. Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir.2002). Here, the interim relief allowed a season of grazing that would not otherwise have been permitted (as well as requiring the BLM to relocate the incorrectly positioned fence), and, in the end, the case was dismissed without prejudice as moot because the 2001 BLM decision provided Oro Vaca with most of the relief it had sought. Under these circumstances, Watson requires that we recognize Oro Vaca as a prevailing party.

I concur, however, because I agree that the district court did not abuse its discretion in determining that the BLM’s 2000 Full Force and Effect decision was substantially justified.

. Even if they had not been so entered, the stipulation would still have altered the legal relationship of the parties and would suffice for prevailing party status. See Barrios v. Calif. Interscholastic Fed'n, 277 F.3d 1128 (9th Cir.2002); Perez-Arellano v. Smith, 279 F.3d 791, 795 (9th Cir.2002).