dissenting:
I respectfully dissent.
Citizens filed a suit that, among other things, sought a ruling that USDA had violated the provisions of NEPA by failing to give appropriate notice of the promulgation of a new rule to replace the 2000 Plan Development Rule. The district court ruled that Citizens lacked standing to sue and that the procedural challenges were not ripe for review. Citizens appealed, contending that it did have standing and that the matter was ripe for review.
The USDA invited our court also to rule on the merits of the NEPA claim. In its reply brief, the USDA stated: “Even if the Court finds that [Citizens] has standing and that its NEPA and ESA claims are ripe, it should affirm the district court’s grant of summary judgment and denial of injunctive relief on the alternative ground that [Citizen]’s claims fail on the merits.” We held that Citizens had standing and the case was ripe for review, and also held that the USDA violated NEPA in promulgating the new rule. Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 965, 970 (9th Cir.2003). The holding on the NEPA violation was, in effect, the equivalent of a declaratory ruling made at the invitation of the USDA.
Because Citizens had requested an injunction in addition to declaratory relief, it is significant that our remand to the district court was only to consider the additional relief of an injunction. Citizens for Better Forestry, 341 F.3d at 978. The declaratory judgment was taken care of in our ruling, in which we held that the USDA had violated NEPA. This was not dicta, as the USDA contends, but our holding on an issue that the USDA specifically asked us to address. Once judgment was entered, this holding was binding on the district court as the law of the case and was binding precedent in our circuit. Until the USDA complied with NEPA, proceeding with enforcement of the new rule was unlawful. This is exactly the relief Citizens sought in its suit.
The district court properly awarded attorneys’ fees because our ruling in Citizens for Better Forestry was “functionally *1135equivalent to a declaratory judgment.” Citizens for Better v. U.S. Dep’t of Agric., 497 F.Supp.2d 1062, 1073 (N.D.Cal.2007). The majority rejects the equivalency doctrine by relying on precedents that do not control the case at bar. Although the Supreme Court in Buckhannon began its analysis by consulting Black’s Law Dictionary, the Court distilled the dictionary definition of “prevailing party” into two essential requirements. A litigant prevails by: (1) obtaining a “material alteration of the legal relationship of the parties”; and (2) getting a stamp of “judicial imprimatur on the change.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604-05, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (internal quotation marks omitted); see also Carbonell v. INS, 429 F.3d 894, 898 (9th Cir.2005) (applying the test).
In the course of reconciling prior holdings with its two-part test, the Buckhannon Court began drawing a line between “examples” of relief that entitle a party to recover attorneys’ fees, and relief that does not. 532 U.S. at 605, 121 S.Ct. 1835. Enforceable judgments on the merits and court-ordered consent decrees clearly qualified. Id. at 604, 121 S.Ct. 1835. Recovery of fees under the “catalyst theory” did not.1 Id. at 605, 121 S.Ct. 1835. As none of these clear examples control this case, we must venture into the gray area of Buckhannon2
Two cases cited in Buckhannon are relevant here. The majority only mentions Hewitt v. Helms, 482 U.S. 755, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987). In that case, the plaintiff (Helms) “obtained no relief,” only “a favorable judicial statement of law in the course of litigation that resulted] in judgment against the plaintiff." Id. at 760, 763, 107 S.Ct. 2672 (emphasis added). As the Buckhannon Court recognized, Helms could not recover because the “judicial pronouncement that the defendant has violated the Constitution[was] unaccompanied by ‘judicial relief.’ ” 532 U.S. at 606, 121 S.Ct. 1835 (quoting Hewitt, 482 U.S. at 760, 107 S.Ct. 2672). The defendant prevailed on the ground of qualified immunity. The majority’s declaration that a “favorable judicial statement of law ... cannot substitute for a form of judicial relief’ is therefore misleading. As Justice Scalia noted in Hewitt, the positive statement of law at issue was irrelevant to the case because the plaintiff lost. Unlike Helms, Citizens did not lose.
The Buckhannon Court’s discussion of a second case, Parham v. Sw. Bell Tel. Co., 433 F.2d 421 (8th Cir.1970), is more on point. In Parham, the plaintiff (Parham) sued a potential employer for racially discriminatory employment practices in violation of Title VII. The court ruled in Par-ham’s favor, “hold[ing] as a matter of law that[Parham’s evidence] established a violation of Title VII.” Id. at 426. However, because the employer had successfully initiated an affirmative action program in the wake of Parham’s lawsuit, the court did not grant “injunctive relief to enjoin the [employer] from unlawful employment discrimination.” Id. at 429. Instead, the court remanded the case with an instruction that the district court retain jurisdiction over the matter to ensure that the *1136employer maintained its salutary employment practices. Id. at 429. Despite the lack of formal relief, the court awarded Parham attorneys’ fees because his “lawsuit acted as a catalyst” for the onset of the employer’s affirmative action program — a “valuable public service.” Id. at 430.
The Buckhannon Court distinguished Parham from other catalyst theory cases as follows:
Although the Court of Appeals in Par-ham awarded attorney’s fees to the plaintiff because his lawsuit acted as a catalyst which prompted the defendant to take action seeking compliance with the requirements of Title VII, it did so only after finding that the defendant had acted unlawfully. [Therefore,] Parham stands for the proposition that an enforceable judgment permits an award of attorney’s fees.
Buckhannon, 532 U.S. at 607 n. 9, 121 S.Ct. 1835 (internal quotation marks, citations, and alterations omitted; emphasis added). Under the majority’s analysis, Parham would not have been entitled to attorney’s fees.
When read together, Buckhannon, Par-ham, and Hewitt suggest that a plaintiff may recover attorneys’ fees under a functional equivalence theory, provided that the judgment is enforceable. Cf. Smalbein v. City of Daytona Beach, 353 F.3d 901, 905 (11th Cir.2003) (explaining that attorneys’ fees may be recoverable when a court retains jurisdiction over the terms of a private settlement agreement or when a court order incorporates such an agreement into a dismissal order because either action is the “functional equivalent” of an entry of a consent decree); Buckhannon, 532 U.S. at 618, 121 S.Ct. 1835 (Scalia, J„ concurring) (“[I]n the case of court-approved settlements ..., even if there has been no judicial determination of the merits, the outcome is at least the product of, and bears the sanction of, judicial action in the lawsuit.”).
Although our 2003 judgment did not formally grant Citizens’ prayer for declaratory relief, our statement that the USDA violated NEPA was the functional equivalent of a declaratory judgment. On remand, the district court would have been bound by this determination regardless of whether it chose to grant injunctive relief. If the district court had acted otherwise and reconsidered the issue, we would have been able to enforce our statement of law pursuant to the law of the case and law of the circuit doctrines. See Citizens for Better, 497 F.Supp.2d at 1073 (citing United States v. Johnson, 256 F.3d 895, 914 (9th Cir.2001) (“[Wjhere a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit. ...”); Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 715 (9th Cir.1990) (explaining that the law of the case precludes a district court from revisiting an issue that has been decided by a higher court in the same case unless one of three exceptional circumstances, none of which are relevant here, applies)). Citizens asked for declaratory relief, and Citizens got it in substance, if not form.
Our judgment altered the legal relationship of the parties. Citizens’ position was upheld. The USDA could not lawfully proceed under its new rule. Moreover, like Parham, Citizens obtained relief that achieved a broad public good. Plaintiffs seeking to protect our environment now routinely use our statement of law to hold federal agencies accountable for circulating EAs for public review, thereby furthering NEPA’s goal of protecting the environment through public participation. See, e.g., Ocean Mammal Inst. v. Gates, 546 F.Supp.2d 960, 972 (D.Haw.2008); W. Wa*1137tersheds Project v. Bennett, 392 F.Supp.2d 1217, 1222 (D.Idaho 2005); Mont. Wilderness Ass’n v. Fry, 310 F.Supp.2d 1127, 1144 (D.Mont.2004). Thus, Citizens prevailed.
None of the cases cited by the majority changes this fact. The statement of law at issue in Hewitt provided only conditional relief. 482 U.S. at 758, 107 S.Ct. 2672. Once the district court determined that the prison officials were protected by qualified immunity, the conditional relief evaporated. Id. at 760, 107 S.Ct. 2672. Our ruling that the USDA violated NEPA was not conditional. It provided relief because the USDA could not lawfully proceed under the new rule.
The other two cases on which the majority relies, Benton v. Oregon Student Assistance Commission, 421 F.3d 901 (9th Cir. 2005), and Poland v. Chertoff, 494 F.3d 1174 (9th Cir.2007), are also distinguishable. Benton dealt with a damages judgment only, and “nothing in the language of the [district court’s] judgment ... suggested] that[the] plaintiff was awarded declaratory relief.” 421 F.3d at 908; see also id. at 903 (“Although plaintiff contends that she received a declaratory judgment that her rights were violated, a review of the judgment reveals that the judgment is a damages judgment only.”) The district court’s statement that plaintiffs constitutional rights had been violated served no other purpose than to support its imposition of a nominal damages award. Id. at 908.
Poland is distinguishable from the instant case because of its procedural posture. In that case, the district court found that the plaintiff had been constructively discharged and unlawfully retaliated against; however, the court only awarded attorney’s fees under the former claim. Poland, 494 F.3d at 1179. On appeal, we reversed on the discharge claim and affirmed on the retaliation claim. Id. at 1184-86. Because the district court awarded damages solely on the reversed claim, we vacated the award of attorneys’ fees, noting that the plaintiff would again be entitled to them if he “obtained] any form of relief on remand.” Id. at 1187. Poland does not stand for the proposition that a favorable statement of law never qualifies as relief. We could not have affirmed an award of attorneys’ fees while simultaneously reversing the basis of the award.
Our ruling that the USDA had violated NEPA was equivalent to a declaratory judgment and did provide the relief Citizens had sought. The USDA could no longer lawfully proceed under the new rule. The award of attorneys’ fees was therefore proper, and we should affirm the district court.
. Prior to Buckhannon, most courts of appeals allowed a plaintiff to ''prevail” under the “catalyst theory.” 532 U.S. at 602, 602 n. 3. This theory permitted attorneys' fees to be awarded in the absence of a "judicially sanctioned change in the legal relationship of the parties” if the plaintiff “achieve[d] the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct.” Id. at 601, 605, 121 S.Ct. 1835.
, As the majority recognizes, Buckhannon is broad enough to encompass other forms of relief. See supra p. 1132 (noting that legally enforceable settlement agreements and preliminary-injunctions can qualify as relief).