Western Watersheds Project v. United States Department of the Interior

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

WESTERN WATERSHEDS PROJECT, 
Plaintiff-Appellee,
v.
UNITED STATES DEPARTMENT OF THE
INTERIOR, No. 10-35836
Defendant-Appellant,
 D.C. No.
4:08-cv-00506-BLW
and
GLENNS FERRY GRAZING OPINION
ASSOCIATION, INC.; JUNIPER
MOUNTAIN GRAZING ASSOCIATION,
L.L.C.,
Intervenor-Defendants.

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted
February 7, 2012—Seattle, Washington

Filed April 25, 2012

Before: Mary M. Schroeder and Ronald M. Gould,
Circuit Judges, and Ralph R. Beistline,
Chief District Judge.*

Opinion by Judge Schroeder

*The Honorable Ralph R. Beistline, Chief United States District Judge
for the District of Alaska, sitting by designation.

4379
 WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR 4381

COUNSEL

Laurence J. Lucas, Boise, Idaho, for plaintiff-appellee West-
ern Watersheds Project.

Syrena C. Hargrove, AUSA, Boise, Idaho, for defendant-
appellant United States Department of the Interior.
4382 WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR

OPINION

SCHROEDER, Circuit Judge:

The Government appeals from an award of attorneys’ fees
to a plaintiff conservation group in a long-running dispute
involving federal grazing permits in Idaho. Plaintiff-Appellee
conservation group is Western Watersheds Project (“WWP”)
and the permits were issued by Defendant-Appellant U.S.
Department of the Interior. The issue is whether the district
court properly awarded fees to WWP for legal work done in
the administrative proceedings conducted before the civil liti-
gation in which the district court held that the Interior Board
of Land Appeals (“IBLA”) had acted arbitrarily and capri-
ciously in upholding the Government’s award of some of the
grazing permits.

The precise legal issue concerns the interpretation of the
U.S. Supreme Court’s decision in Sullivan v. Hudson, 490
U.S. 877 (1989), and whether it permits an award of fees
under 28 U.S.C. § 2412(d)(1)(A) to a prevailing party in dis-
trict court for the work done in the administrative proceedings
that preceded the district court action. Here, the district court
awarded the fees because it concluded that the administrative
proceedings were closely tied to its own resolution of the
issues. Although the Government did not extensively argue its
position on statutory interpretation before the district court, it
contends more fully and persuasively to us that the fees
awarded under § 2412(d)(1)(A) should not have included fees
for the administrative proceedings. This is because fees for
administrative proceedings can be awarded under
§ 2412(d)(1)(A) only when the proceedings have been
ordered in a district court action that remains pending until the
conclusion of the administrative proceedings. Hudson, 490
U.S. at 892. That was the situation in Hudson, but that is not
the situation here, where the district court action was not filed
until after the administrative proceedings had concluded.
 WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR 4383
We therefore must vacate the fee award and remand for the
district court to reduce the award by the amount that repre-
sents fees incurred in the administrative proceedings.

BACKGROUND

The chronology of the underlying dispute over grazing per-
mits is important to understanding the relationship between
the administrative permit proceedings and the civil litigation
in district court that followed them, and in which the fees at
issue were awarded. The seeds of this fee dispute were sown
in 1997, when WWP filed an action in Idaho district court
challenging the Bureau of Land Management’s (“BLM”) issu-
ance of grazing permits to cattle ranchers for 68 public land
allotments in 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. Nat. Res. Def. Council, Inc., 555 U.S. 7, 29-31 (2008).

In that case, the district court held in February 2000 that the
BLM had violated the National Environmental Policy Act
(“NEPA”), Pub. L. 91-190, 83 Stat. 852 (1969) (codified as
amended in 42 U.S.C.), and the court granted WWP’s request
for a permanent injunction. Id. at 820, 823. The injunction
required the BLM to conduct, within a set schedule, a new
NEPA analysis. Id. at 823. In conducting the new analysis, the
BLM found that its grazing management policies in the
Nickel Creek allotments, a portion of the 68 allotments in the
Owyhee Resource Area, failed to meet any of the applicable
rangeland health standards. The BLM sought to address this
problem (and meet its obligation under the injunction) in its
2003 Final Decision for the Nickel Creek allotments. The
BLM supported the Final Decision with an Environmental
Assessment (“EA”) and a Finding of No Significant Impact
(“FONSI”), pursuant to NEPA, see 42 U.S.C. §§ 4321-4347.
The Final Decision provided for ten-year grazing permits that
would incorporate a grazing rotation schedule and eight man-
agement guidelines necessary to improve rangeland health
4384 WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR

conditions. The management guidelines, however, were not
mandatory.

WWP promptly, and not surprisingly, filed an administra-
tive appeal in December 2003 with the Department of Interior
Office of Hearings and Appeals, challenging the BLM’s Final
Decision. The administrative law judge (“ALJ”) held a
fifteen-day evidentiary hearing, at which the parties presented
over a dozen witnesses and hundreds of exhibits. On Septem-
ber 28, 2007, the ALJ issued a lengthy opinion in WWP’s
favor. The ALJ found that the BLM “failed to comply with
the grazing regulations on the fundamentals of rangeland
health, and failed to comply with [NEPA].” The Government
appealed the ALJ’s decision to the IBLA, and in December
2008, the IBLA reversed the ALJ’s rulings. The IBLA held
that the 2003 Final Decision did not violate NEPA, and,
because it would make significant progress in improving
allotment conditions, it did not violate the Fundamentals of
Rangeland Health Regulations, see 43 C.F.R. § 4180.

WWP then sought judicial review in district court under the
Administrative Procedure Act (“APA”), 60 Stat. 237 (1946)
(codified as amended at 5 U.S.C.), arguing that the IBLA’s
decision was arbitrary and capricious. The district court in
December 2009 granted partial summary judgment for WWP,
finding that the IBLA’s decision was arbitrary and capricious
because it had, without any explanation, reversed the ALJ’s
determination that the BLM’s 2003 Final Decision violated
the Fundamentals of Rangeland Health Regulations. The dis-
trict court remanded the matter to the BLM with instructions
to include the management guidelines as mandatory terms and
conditions of the permits and to render a new decision on the
Nickel Creek allotments. The Government did not appeal to
this court.

The controversy then shifted to fees. WWP timely moved
for an award of attorneys’ fees and expenses under the Equal
Access to Justice Act (“EAJA”), Pub. L. 96-481, 94 Stat.
 WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR 4385
2325 (1980) (codified in scattered sections of 5, 15, 28, and
42 U.S.C.). WWP requested fees pursuant to 5 U.S.C. § 504
and 28 U.S.C. § 2412(d) for the administrative appeals and
district court proceedings, in which it had challenged the
BLM’s 2003 Final Decision for the Nickel Creek allotments.
The Government conceded that WWP was the prevailing
party and under § 2412(d)(1)(A) was entitled to reasonable
fees and costs incurred in district court, but argued that WWP
was not entitled to fees under either § 504 or § 2412(d) for the
administrative proceedings. The district court agreed that fees
for the administrative proceedings were excluded under
§ 504, but concluded that WWP was entitled to $183,160 in
fees under § 2412(d)(1)(A) for the administrative proceed-
ings. That award is the subject of this appeal, with the Gov-
ernment contending that fees for the administrative
proceedings here are not awardable under the EAJA because
the administrative proceedings were not tied to any then-
pending district court litigation.

DISCUSSION

I. There was no waiver by the Government.

WWP contends that the Government has waived its right to
challenge the award on appeal because it did not explain to
the district court why § 2412(d)(1)(A) and Hudson do not
allow for an award of fees for administrative proceedings in
this case. WWP characterizes the Government’s position on
appeal as a new argument that the district court did not
address. The question with respect to waiver, however, is
whether the issue was sufficiently raised for the trial court to
rule on it. In re E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir.
1989).

Here, the Government argued before the district court that
§ 2412(d) and the Supreme Court’s leading case, Hudson, do
not allow an attorneys’ fee award for administrative fees. It
distinguished Hudson on its facts, because it was a social
4386 WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR

security remand. The issue of fees for administrative proceed-
ings thus was squarely before the district court, and the dis-
trict court ruled on it. The Government did not give the
district court its legal basis for distinguishing Hudson, and
this gives rise to WWP’s argument that the Government has
waived any right to challenge fees. Yet, we do not require a
party to file comprehensive trial briefs on every argument that
might support a position on an issue. There is no waiver if the
issue was raised, the party took a position, and the district
court ruled on it. See In re E.R. Fegert, Inc., 887 F.2d at 957
(“There is no bright-line rule to determine whether a matter
has been properly raised,” only “[a] workable standard” that
it “must be raised sufficiently for the trial court to rule on it”);
Felix v. McCarthy, 939 F.2d 699, 701 (9th Cir. 1991) (finding
no waiver where the appellant’s trial brief referenced the issue
on appeal, the appellee responded to that issue, and the district
court ruled on it), cert. denied 502 U.S. 1093 (1992); see also
Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1260 n.8
(9th Cir. 2010) (reasoning that the waiver rule “does not apply
‘where the district court nevertheless addressed the merits of
the issue’ not explicitly raised by the party” (quoting
Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699,
707 (D.C. Cir. 2009))).

In this case, WWP requested administrative fees pursuant
to § 2412(d)(1)(A) and Hudson, the Government opposed the
request, and the district court ruled on it. Accordingly, we
conclude that the Government’s challenge to the fee award is
properly before us on appeal.

II. The district court erred in awarding WWP attorneys’
fees pursuant to § 2412(d)(1)(A) and Hudson for the
administrative proceedings.

[1] The EAJA partially waives the sovereign immunity of
the United States and allows a prevailing party to obtain an
award of attorneys’ fees against the Government. Section
2412(d)(1)(A) specifically allows for the award of fees to a
 WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR 4387
prevailing party “in any civil action,” including judicial
review of agency actions. The statute provides in pertinent
part:

[A] court shall award to a prevailing party other than
the United States fees and other expenses, in addi-
tion to any costs awarded pursuant to subsection (a),
incurred by that party in any civil action (other than
cases sounding in tort), including proceedings for
judicial review of agency action, brought by or
against the United States in any court having juris-
diction of that action, unless the court finds that the
position of the United States was substantially justi-
fied or that special circumstances make an award
unjust.

§ 2412(d)(1)(A) (emphasis added). A “civil action,” however,
is a proceeding in a judicial court, not an administrative court.
See Hudson, 490 U.S. at 894-95 (White, J., dissenting). Sec-
tion 2412(d)(1)(A), therefore, generally does not allow for the
award of fees for administrative proceedings.

[2] The Supreme Court has created only a narrow excep-
tion to this general rule. See Hudson, 490 U.S. at 891-93. Fees
for administrative proceedings may be awarded under
§ 2412(d)(1)(A) so long as the administrative proceedings are
“intimately tied to the resolution of the judicial action,” and
“necessary to the attainment of the results Congress sought to
promote by providing for fees.” Id. at 888. Relying upon this
language, the district court here awarded fees incurred in the
administrative proceedings. It reasoned that the administrative
proceedings were “intimately tied” to its resolution of the dis-
trict court action because the court was called upon to review
the administrative proceedings and relied upon the record
compiled by WWP before the ALJ. It concluded that WWP
should be compensated for that work as well as the work done
in district court. Under its reasoning, fees would be recover-
4388 WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR

able for most administrative proceedings in which the district
court relies on the administrative record.

In Hudson, the Supreme Court awarded fees under
§ 2412(d)(1)(A) for administrative proceedings in a very
unusual type of social security case. 490 U.S. at 884-88. The
Secretary of Health and Human Services in Hudson initially
denied the claimant’s application for social security disability
and income benefits. Id. at 879-80. The claimant appealed to
the district court, and the district court ultimately remanded
her case pursuant to 42 U.S.C. § 405(g) of the Social Security
Act (“SSA”) for further administrative proceedings. Id. at
880-82. In so doing, the district court retained jurisdiction
over the civil action. Id. at 882. The claimant then obtained
relief in the administrative courts and returned to district
court, requesting attorneys’ fees under § 2412(d)(1)(A) for the
administrative proceedings that followed the court-ordered
remand. Id. at 882. The district court denied her fee request,
the Eleventh Circuit reversed, and the Supreme Court granted
certiorari to determine whether the claimant was entitled to an
award of attorneys’ fees under the EAJA for the administra-
tive proceedings on remand. Id. at 879, 882-83.

[3] The Supreme Court held that the claimant was entitled
to fees under § 2412(d)(1)(A) for the post-litigation, adminis-
trative proceedings. Id. at 892. The Court, however, did not
purport to authorize fees for all administrative proceedings
that are conducted after a district court remand and that are
subject to district court review on the basis of the administra-
tive record. The Court distinguished the unique SSA remand
in Hudson from standard remands issued after judicial review
of agency action. Id. at 884-88. The Court found that the
detailed provisions in the SSA governing the back-and-forth
transfer to and from the district court and administrative
agency “suggest[ed] a degree of direct interaction” between
the two that was “alien to traditional review of agency action
under the Administrative Procedure Act.” Id. at 885.
 WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR 4389
The Court stressed that it awarded fees for the administra-
tive proceedings in that case because the district court action
remained pending throughout the administrative proceedings,
and the district court could not enter a final judgment in the
claimant’s social security case until the administrative pro-
ceedings were completed. Id. at 886-87. The Court therefore
concluded that the administrative proceedings on remand and
the district court action were so “intimately” linked that “they
should be considered part and parcel of the action for which
fees may be awarded.” Id. at 888. The Court thus held:

[W]here a court orders a remand to the Secretary in
a benefits litigation and retains continuing jurisdic-
tion over the case pending a decision from the Secre-
tary which will determine the claimant’s entitlement
to benefits, the proceedings on remand are an inte-
gral part of the “civil action” for judicial review, and
thus attorney’s fees for representation on remand are
available [under § 2412(d)(1)(A)].

Id. at 892.

[4] Since Hudson, the Supreme Court has further clarified
its narrow scope. The Court, within two years after Hudson,
emphasized that because EAJA is a partial waiver of sover-
eign immunity it “must be strictly construed in favor of the
United States.” Ardestani v. INS, 502 U.S. 129, 137 (1991).
Following this principle, the Court has stated consistently that
fees for administrative proceedings can only be awarded
under § 2412(d)(1)(A) if the district court ordered the further
proceedings, and the district court action remained pending
until the conclusion of the administrative proceedings. See
Melkonyan v. Sullivan, 501 U.S. 89, 96-97 (1991) (reasoning
that Hudson “stands for the proposition that in those cases
where the district court retains jurisdiction of the civil action
and contemplates entering a final judgment following the
completion of administrative proceedings, a claimant may
collect EAJA fees for work done at the administrative level”);
4390 WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR

Shalala v. Schaefer, 509 U.S. 292, 299-300 (1993) (holding
that because the district court does not retain jurisdiction,
sentence-four social security remands do not fall within the
scope of Hudson, and noting that the Court had limited Hud-
son “to a narrow class of qualifying administrative proceed-
ings where the district court retains jurisdiction of the civil
action pending the completion of the administrative proceed-
ings” (internal quotation marks and citation omitted)).

[5] Our circuit has followed these decisions, applying Hud-
son to deny fees in other administrative contexts. See Nadara-
jah v. Holder, 569 F.3d 906, 920 (9th Cir. 2009) (immigration
and habeas corpus); Mendenhall v. Nat’l Trans. Safety Bd.,
213 F.3d 464, 467-69 (9th Cir. 2000) (aviation). Nadarajah
was a habeas case, in which the prevailing petitioner
requested fees for administrative immigration proceedings
that preceded the habeas litigation. 569 F.3d at 919. The peti-
tioner argued that the administrative proceedings were “inti-
mately connected” to the habeas corpus litigation upon which
he prevailed, because the district court relied on the evidenti-
ary record created in the administrative proceedings, thereby
avoiding a duplicative evidentiary hearing in district court. Id.
at 919-20. We held that the fees for the administrative pro-
ceedings were not recoverable, because Hudson applies only
when the attorneys’ work in the administrative proceedings is
necessary to carrying out a court-ordered remand for further
proceedings. Id. at 919.

Similarly, in Mendenhall, we rejected a claim for an award
of attorneys’ fees calculated under § 2412(d)(1)(A) for pre-
litigation administrative proceedings that were conducted
before the National Transportation Safety Board. 213 F.3d at
467-69. We emphasized that Hudson only applied to a “nar-
row class of administrative proceedings . . . where a suit has
been brought in a court, and where a formal complaint within
the jurisdiction of a court of law remains pending and
depends for its resolution upon the outcome of the administra-
tive proceedings.” Id. at 468 (internal quotation marks and
 WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR 4391
citation omitted) (emphasis in original). Our decisions are
consistent with the decisions of the other circuits that have
considered whether § 2412(d)(1)(A) authorizes fees for
administrative proceedings that either preceded or followed
district court litigation. See Maritime Mgmt., Inc. v. United
States, 242 F.3d 1326, 1336 (11th Cir. 2001) (denying pre-
litigation fees incurred during administrative proceedings
before the General Accounting Office); Friends of the Bound-
ary Waters Wilderness v. Thomas, 53 F.3d 881, 887 (8th Cir.
1995) (declining to award fees for pre-litigation expenses
incurred during the Forest Service’s administrative appeals
process because there was “no basis for extending Hudson[ ]”
to cases “where the administrative proceedings precede the
civil action”); Full Gospel Portland Church v. Thornburgh,
927 F.2d 628, 629, 631-33 (D.C. Cir. 1991) (holding that the
plaintiffs could not recover fees for post-litigation, adminis-
trative proceedings before the Immigration and Naturalization
Service because the “[p]roceedings under the [Immigration
and Nationality Act] lack[ed] the specific features of the SSA
proceedings that, in Hudson, demonstrated the ‘intimate tie’
between administrative and judicial proceedings”), cert.
denied 502 U.S. 1030 (1992); Pollgreen v. Morris, 911 F.2d
527, 535-36 (11th Cir. 1990) (awarding fees for the adminis-
trative proceedings in a case involving deprivation of prop-
erty, because the proceedings were directed by the district
court and the district court could not enter a final judgment
until after the completion of the administrative proceedings).

To support its position that the district court properly
awarded administrative fees under the EAJA in this case,
WWP relies on Native Village of Quinhagak v. United States,
307 F.3d 1075, 1083 (2002). But the issue in Quinhagak con-
cerned whether the district court had discretion to award fees
for pre-litigation administrative proceedings under the Alaska
National Interest Lands Conservation Act (“ANICLA”), Pub.
L. 96-487, 94 Stat. 2371 (1980) (codified at scattered sections
of 15 and 43 U.S.C.). As we observed in that case, ANILCA
was intended by Congress to enable rural residents in Alaska
4392 WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR

to play a material role in the management of Alaska’s
resources, and participation in the administrative proceedings
was essential to that goal. Id. at 1082-83. We thus held that
the district court had discretion to award fees for the adminis-
trative proceedings. Id. at 1083. This decision, however, was
premised on particular congressional concerns about the sub-
sistence needs of rural Alaskans. Id.; see generally 16 U.S.C.
§ 3111 (providing that an “administrative structure” should be
established “for the purpose of enabling rural residents . . . to
have a meaningful role in the management of fish and wildlife
and of subsistence uses on the public lands in Alaska”); 126
Cong. Rec. 31109 (daily ed. Dec. 1, 1980) (stating that “local
residents and other aggrieved persons and organizations who
are prevailing parties . . . shall be awarded their full costs and
reasonable attorney’s fees,” because it “is important to ensure
that the residents of Native villages, many of which are
among the poorest communities in the Nation, will be able to
secure adequate representation”). The case does not support a
holding that administrative fees are broadly available under
the EAJA.

[6] Indeed, Congress has spoken directly to the subject of
fees for administrative grazing-permit proceedings and has
rejected them. Section 504(a) allows administrative fee
awards to prevailing parties in administrative proceedings that
involve “adversary adjudications,” but goes on to exclude
licensing proceedings. See § 504(b)(1)(C) (“’[A]dversary
adjudication’ means (i) an adjudication . . . in which the posi-
tion of the United States is represented by counsel or other-
wise, but excludes an adjudication for the purpose of . . .
granting or renewing a license . . . .”); see also § 2412(d)(3)
(allowing a federal court to award attorneys’ fees “to a pre-
vailing party in any action for judicial review of an adversary
action, as defined in [5 U.S.C. § 504(b)(1)(C)],” and to
include fees incurred in administrative proceedings “to the
same extent authorized in subsection (a)” of § 504). The par-
ties agree that the administrative grazing-permit proceedings
here are “licensing proceedings” outside the scope of § 504.
 WESTERN WATERSHEDS v. U.S. DEP’T OF THE INTERIOR 4393
See Western Watersheds Project v. Interior Bd. of Land
Appeals, 624 F.3d 983, 987-90 (9th Cir. 2010) (holding that
Western Watersheds, in related litigation, was not eligible for
attorneys’ fees in adjudication for the purpose of granting or
renewing grazing permits). Thus, unlike the fee award in
Quinhagak, which furthered “Congress’s expressed purpose
in enacting the statute” and did not hinder any other statutory
purpose, 307 F.3d at 1083, an award of fees in this case would
conflict with Congress’s express limitation on fee awards for
pre-litigation administrative grazing-permit proceedings.

[7] For all of these reasons, we must vacate the district
court’s award of fees and remand for it to enter an award that
excludes the $183,160 representing fees for the administrative
proceedings.

VACATED and REMANDED.