Award of Attorney Fees is Improper Where Litigation Sought Renewal of Grazing Permits Rather than the Grant or Renewal of a License

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In Western Watersheds v. Interior Board of Land Appeals, 2010 DJDAR 15784 (9th Cir. 2010), the Ninth Circuit decided a case involving the interplay between the renewal of Bureau of Land Management (BLM) grazing permits and the fee shifting provisions of the Equal Access to Justice Act (“EAJA”).

After the BLM issued decisions renewing grazing permits in Idaho, the Western Watersheds Project, (“Western”) a conservation group, filed administrative appeals of those decisions. In essence, Western alleged that the permits were improperly granted in violation of federal regulations and the National Environmental Policy Act (“NEPA”).

An administrative law judge consolidated the appeals and issued a partial stay. This was a substantial victory for Western and, subsequently, the parties entered into a settlement agreement. Western moved for fees and costs under the Equal Access to Justice Act (EAJA). The EAJA partially waives the sovereign immunity of the United States allowing an award of attorneys’ fees in limited circumstances.

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