Citizens for Better Forestry v. Usda

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITIZENS FOR BETTER FORESTRY; 
THE ECOLOGY CENTER; GIFFORD
PINCHOT TASK FORCE; KETTLE
RANGE CONSERVATION GROUP;
IDAHO SPORTING CONGRESS; FRIENDS
OF THE CLEARWATER; UTAH
ENVIRONMENTAL CONGRESS;
No. 07-16077
CASCADIA WILDLANDS PROJECT;
KLAMATH SISKIYOU WILDLANDS
CENTER; SOUTHERN APPALACHIAN
 D.C. No.
CV-01-00728-MJJ
BIODIVERSITY PROJECT; OPINION
HEADWATERS; THE LANDS COUNCIL,
Plaintiffs-Appellees,
v.
U.S. DEPARTMENT OF AGRICULTURE;
UNITED STATES FOREST SERVICE,
Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of California
Martin J. Jenkins, District Judge, Presiding
Argued and Submitted
October 22, 2008—San Francisco, California
Filed June 9, 2009
Before: Procter Hug, Jr., Melvin Brunetti and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton;
Dissent by Judge Hug
6841
BETTER FORESTRY v. USDA 6843
COUNSEL
Ronald J. Tenpas, Assistant Attorney General; Andrew A.
Smith, Andrew C. Mergen, and Robert J. Lundman (argued),
United States Department of Justice, Washington, DC, for the
defendants-appellants.
Peter M.K. Frost, Western Environmental Law Center,
Eugene, Oregon, for the plaintiffs-appellees.
6844 BETTER FORESTRY v. USDA
OPINION
CLIFTON, Circuit Judge:
The United States Department of Agriculture (“USDA”),
which includes the Forest Service, appeals the district court’s
award of attorneys’ fees to Citizens for Better Forestry and
eleven other environmental groups (collectively, “Citizens”)
under the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412(d)(1)(A). In the underlying action, Citizens sought
declaratory and injunctive relief against the USDA for its pro-
mulgation of a new national forest management rule. We
reversed the district court’s dismissal of Citizens’ suit on
standing and ripeness grounds and remanded for a ruling on
Citizens’ motion for injunctive relief. Before the district court
could reconsider the motion, the USDA withdrew the con-
tested rule. Citizens then stipulated to dismiss its case and
moved for attorneys’ fees. Because Citizens received no relief
from any court, it does not qualify as a “prevailing party”
under the EAJA and, therefore, is not entitled to fees.
I. Background
On February 16, 2001, Citizens brought suit in the North-
ern District of California, alleging that the USDA had com-
mitted procedural violations of the National Environmental
Policy Act (“NEPA”) and the Endangered Species Act
(“ESA”) and substantive violations of the National Forest
Management Act in promulgating a new rule (the “2000 Final
Rule”) governing the Forest Service’s administration and
management of National Forest System lands. Citizens sought
declaratory and injunctive relief. After Citizens filed suit, the
USDA reviewed the 2000 Final Rule and announced in
December 2001 that a new rule would replace it. Citizens
agreed, in turn, to stay its substantive claims, but moved for
partial summary judgment on its procedural claims. The
USDA filed a cross-motion for partial summary judgment,
alleging that Citizens lacked standing to challenge the 2000
BETTER FORESTRY v. USDA 6845
Final Rule and that its claims were not ripe for adjudication.
The district court granted the USDA’s motion on both
grounds and denied Citizens’ motions for partial summary
judgment and injunctive relief. Citizens brought an immediate
appeal of the district court’s denial of its motion for injunctive
relief.
This court reversed, holding that Citizens had standing to
assert the NEPA and ESA claims and that the case was ripe
for review. Citizens for Better Forestry v. U.S. Dep’t of Agri-
culture, 341 F.3d 961, 965 (9th Cir. 2003). In our standing
analysis, we held that the USDA had violated NEPA by
depriving Citizens of its right to comment on the relevant
environmental documents. Id. at 970. The opinion concluded:
“We do not reach the merits of Citizens’ appeal on their
motion for injunctive relief, however, because the district
court did not reach the merits of the motion.” Id. at 978. Ulti-
mately, we reversed and remanded the case to the district
court “to determine whether injunctive relief is appropriate.”
Id. at 965.
After we issued our decision, the USDA withdrew the 2000
Final Rule and issued a new final rule. Citizens then dis-
missed its case and moved for attorneys’ fees and costs pursu-
ant to the ESA and the EAJA. A magistrate judge issued a
Report and Recommendation concluding that Citizens’
motion should be granted under the EAJA, but denied under
the ESA. After the USDA objected, the district court
reviewed the record de novo and issued an order adopting the
Report and Recommendation without change. Citizens for
Better v. U.S. Dep’t of Agriculture, 497 F. Supp. 2d 1062,
1065 (N.D. Cal 2007). The district court awarded attorneys’
fees to Citizens under the EAJA because it held that Citizens
was a “prevailing party” on its NEPA claim, as required for
an award of fees. Id. at 1072. The court reasoned: “Given the
dispositive and binding nature of the Ninth Circuit’s finding,
leaving no discretion to the District Court, the panel’s ruling
was functionally equivalent to a declaratory judgment,” a
6846 BETTER FORESTRY v. USDA
form of relief sufficient to confer prevailing party status under
the EAJA. Id. at 1073. The USDA timely filed a notice of
appeal.
II. Discussion
The USDA argues that the district court incorrectly held
that Citizens was a prevailing party in its lawsuit against the
USDA and, as a result, erred in awarding Citizens attorneys’
fees under the EAJA. The USDA contends that Citizens can-
not be a prevailing party because the latter “did not secure any
relief” from either the district court or this court. Citizens
responds by disputing the USDA’s assertion that we did not
afford declaratory relief to Citizens; it argues that this court
went beyond a mere jurisdictional ruling to reach the merits
of Citizens’ NEPA claim. Our favorable ruling on the merits
in conjunction with a remand with instructions to the district
court indicate, Citizens contends, that it was a prevailing party
under the EAJA.
We review for abuse of discretion the district court’s deci-
sion to award fees under the EAJA. United States v. 2659
Roundhill Dr., 283 F.3d 1146, 1151 n.6 (9th Cir. 2002). The
decision as to whether a party has prevailed is a finding of
fact “that will be set aside if clearly erroneous or if based on
an incorrect legal standard.” Oregon Environmental Council
v. Kunzman, 817 F.2d 484, 496 (9th Cir. 1987). We review de
novo the legal analysis underlying the district court’s finding
that Citizens was a prevailing party. See V.S. ex rel. A.O. v.
Los Gatos-Saratoga Joint Union High Sch. Dist., 484 F.3d
1230, 1232 (9th Cir. 2007).
[1] The EAJA directs courts to award attorneys’ fees to “a
prevailing party” in qualifying civil actions against the United
States. 28 U.S.C. § 2412 (d)(1)(A).1 In Buckhannon Board &
1
The statute reads in relevant part:
BETTER FORESTRY v. USDA 6847
Care Home, Inc. v. West Virginia Department of Health &
Human Resources, the Supreme Court looked to Black’s Law
Dictionary to define “prevailing party” as “[a] party in whose
favor a judgment is rendered, regardless of the amount of
damages awarded.” 532 U.S. 598, 603 (2001) (alteration in
original) (quoting Black’s Law Dictionary 1145 (7th ed. 1999)).2
Of particular relevance to the present case is the definition of
“render,” given the dispute between the USDA and Citizens
over whether this court entered a declaratory judgment for
Citizens. When referring to an action taken by a judge, “ren-
der” is defined by the authority relied upon by the Court in
Buckhannon as “to deliver formally.” Black’s Law Dictionary
1322 (8th ed. 2004). Taken together, the definitions of “pre-
vailing party” and “render” suggest that a party must have a
judgment or something similar formally delivered in its favor
to be considered “prevailing.”
While the Buckhannon Court did not have reason to
address how formal a judgment must be, it made clear that,
in any event, a party must receive “some relief” from a court
to be considered “prevailing.” 532 U.S. at 603. “Our
‘[r]espect for ordinary language requires that a plaintiff
receive at least some relief on the merits of his claim before
Except as otherwise specifically provided by statute, a court shall
award to a prevailing party other than the United States fees . . .
incurred by that party in any civil action . . . , including proceed-
ings for judicial review of agency action, brought by or against
the United States in any court having jurisdiction of that action
....
28 U.S.C. § 2412 (d)(1)(A).
2
The Court has recognized that numerous attorneys’ fees statutes award
fees to a “prevailing party” and has elected to “interpret[ ] these fee-
shifting provisions consistently.” Buckhannon, 532 U.S. at 602, 603 n.4;
see also Perez-Arellano v. Smith, 279 F.3d 791, 794 (9th Cir. 2002)
(“[W]e discern no reason to interpret the EAJA inconsistently with the
Supreme Court’s interpretation of ‘prevailing party’ [in other federal stat-
utes] as explained in Buckhannon.”).
6848 BETTER FORESTRY v. USDA
he can be said to prevail.’ ” Id. (alteration in original) (quot-
ing Hewitt v. Helms, 482 U.S. 755, 760 (1987)). An award of
attorneys’ fees must be preceded by a “ ‘material alteration of
the legal relationship of the parties.’ ” Id. at 604 (quoting
Texas State Teachers Ass’n v. Garland Independent Sch.
Dist., 489 U.S. 782, 792-93 (1989)). Only such alterations
that obtain “the necessary judicial imprimatur on the change”
will suffice to confer “prevailing party” status upon the plain-
tiff. Id. at 605.
In a previous decision, the Supreme Court held that a plain-
tiff was not a prevailing party when he “obtained no relief,”
only a “favorable judicial statement of law in the course of lit-
igation that result[ed] in judgment against the plaintiff.”
Hewitt, 482 U.S. at 760, 763. In Hewitt v. Helms, the Third
Circuit had instructed the district court to enter summary
judgment for the plaintiff, a state prisoner, on the grounds that
the defendant prison officials had violated the Constitution,
“unless the defendants could establish an immunity defense.”
Id. at 758 (emphasis added). In subsequent proceedings, the
defendants succeeded in establishing qualified immunity and
were granted summary judgment themselves. Id. The Court
found that the Third Circuit’s favorable instruction did not
constitute “a form of judicial relief,” such as a declaratory
judgment, and therefore was insufficient to confer prevailing
party status on the plaintiff. Id. at 760. Consequently, though
the plaintiff had obtained a favorable determination on the
issue of whether there had been a constitutional violation, he
ultimately received no relief from the district court and there-
fore was not entitled to attorneys’ fees. Id.The Supreme Court provided two “examples” of forms of
relief that justify a fee award: enforceable judgments on the
merits and settlement agreements enforced through a consent
decree. Buckhannon, 532 U.S. at 604-5.While we have identi-
fied additional situations in which a plaintiff can qualify as a
prevailing party, see, e.g., Richard S. v. Dep’t of Developmen-
tal Services of Cal., 317 F.3d 1080, 1086 (9th Cir. 2003)
BETTER FORESTRY v. USDA 6849
(legally enforceable settlement agreement between the plain-
tiff and defendant); Watson v. County of Riverside, 300 F.3d
1092, 1096 (9th Cir. 2002) (preliminary injunction as sole
form of relief), we never have undermined the Court’s basic
requirement that “some relief” be granted. In Benton v. Ore-
gon Student Assistance Commission, for instance, we reversed
a district court’s award of attorneys’ fees, finding that the
court’s prior award of nominal damages and its conclusion
that the “plaintiff had proven that her constitutional rights had
been violated” were not alone sufficient to justify a fee award.
421 F.3d 901, 908 (9th Cir. 2005). We held that the plaintiff
had not obtained a declaratory judgment, notwithstanding this
favorable judicial language. Id.; see also, e.g., Poland v.
Chertoff, 494 F.3d 1174, 1187 (9th Cir. 2007) (denying pre-
vailing party status to a plaintiff who had not yet obtained
“any relief on the merits of his claims,” despite holding that
the plaintiff had established one of his claims (emphasis
added)).
[2] In the present case, Citizens asserts that it should be
considered a prevailing party because it received a ruling
from this court that the USDA had violated Citizens’ rights
under NEPA. Citizens, however, never received a formal
declaratory judgment or other relief from this or any other
court. The district court entered no such judgment, and we
merely remanded to the district court to consider injunctive
relief without discussing declaratory relief. See Citizens, 341
F.3d at 965.
[3] No Supreme Court or Ninth Circuit precedent supports
Citizens’ claim. To the contrary, the cases reviewed here uni-
formly require that a plaintiff receive some form of judicially-
sanctioned relief, as a “judicial imprimatur” is necessary to
achieve the “corresponding alteration in the legal relationship
of the parties” that the Supreme Court has identified as a pre-
requisite for prevailing party status. See Buckhannon, 532
U.S. at 605.
6850 BETTER FORESTRY v. USDA
The dissent attempts to read Supreme Court precedent in
light of the Buckhannon Court’s approval of Parham v. South-
western Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970). See
Buckhannon, 532 U.S. at 607 n.9. In Parham, the Eighth Cir-
cuit granted attorneys’ fees to a plaintiff after holding that the
company to which he had applied for employment had
engaged in racial discrimination in violation of Title VII. 433
F.2d at 429. While agreeing with the district court that an
injunction was neither “necessary or appropriate . . . at the
present time,” due to the company’s subsequent progress in
minority hiring, the Eighth Circuit nevertheless directed the
district court to “retain jurisdiction over the matter for a rea-
sonable period of time to insure the continued implementation
of the appellee’s policy of equal employment opportunities.”
Id. In Buckhannon, the Supreme Court quoted the latter pas-
sage and analogized that directive to a consent decree before
concluding that “[c]learly Parham does not support a theory
of fee shifting untethered to a material alteration in the legal
relationship of the parties.” 532 U.S. at 607 n.9. In the present
case, our court issued no comparable order to the district court
and instead remanded to allow the district court “to determine
whether injunctive relief is appropriate.” Citizens, 341 F.3d at
965. Buckhannon’s citation to Parham does not support a fee
award here.
For its part, Citizens points to a single decision of our
court, Animal Lovers Volunteer Ass’n, Inc. v. Carlucci, 867
F.2d 1224 (9th Cir. 1989), that, Citizens argues, “should con-
trol the resolution of this appeal.” In Animal Lovers, we
awarded attorneys’ fees to the plaintiffs after a previous Ninth
Circuit decision had granted the plaintiffs declaratory relief
and had remanded to the district court to determine whether
an injunction should be granted. Id. at 1225. While Citizens
relies heavily on Animal Lovers—and the district court cites
it, Citizens, 497 F. Supp. 2d at 1072, 1073—its procedural
background differs significantly from the facts here: Our court
granted declaratory relief to the plaintiffs in Animal Lovers,
but did not do likewise with Citizens. Compare Animal Lov-
BETTER FORESTRY v. USDA 6851
ers, 867 F.2d at 1225, with Citizens, 341 F.3d at 965, 978.
Thus, even Citizens’ preferred precedent offers no support for
its proposition that it was transformed into a prevailing party
once we stated that the USDA had violated Citizens’ rights.
[4] Citizens asserts that we went beyond a jurisdictional
ruling to reach the merits of its claim when we held that the
USDA had violated NEPA by depriving Citizens of its right
to comment on environmental documents. But a favorable
determination on a legal issue, even if it might have put the
handwriting on the wall, is not enough by itself. A “favorable
judicial statement of law,” as Citizens obtained here, cannot
substitute for “a form of judicial relief,” such as declaratory
judgment. Hewitt, 482 U.S. at 760, 763.
One reason the Supreme Court drew that distinction is that
a court is not bound to enter a declaratory judgment when it
finds unlawful action. See, e.g., Wilton v. Seven Falls Co., 515
U.S. 277, 282 (1995) (“[D]istrict courts possess discretion in
determining whether and when to entertain an action under
the Declaratory Judgment Act, even when the suit otherwise
satisfies subject matter jurisdictional prerequisites.”). In
reaching its decision, the Hewitt Court cited a “practical
objection to equating statements of law . . . with declaratory
judgments: The equation deprives the defendant of valid
defenses to a declaratory judgment to which he is entitled[,]”
such as mootness or equitable grounds. 482 U.S. at 762.The
Court added: “The fact that a court can enter a declaratory
judgment does not mean that it should.” Id.[5] We recognize that our previous ruling in this case may
have put Citizens well down the road to victory. It is possible
that Citizens’ lawsuit even contributed to the decision by the
USDA to withdraw the disputed rule. But the Supreme Court
has made clear that being a catalyst for such change is not
enough to support a claim for attorneys’ fees under the EAJA.
Buckhannon, 532 U.S. at 600. Relief from the court in some
formal fashion is required. This case, however, was dismissed
6852 BETTER FORESTRY v. USDA
before it reached that stage. Accordingly, because neither the
district court nor our court entered relief for Citizens, the dis-
trict court did not have the power to award Citizens attorneys’
fees.
III. Conclusion
There was not a material alteration in the parties’ legal rela-
tionship sufficient to make Citizens a “prevailing party” under
the EAJA. Accordingly, we reverse the award of attorneys’
fees.
REVERSED.
HUG, Circuit Judge, dissenting:
I respectfully dissent.
Citizens filed a suit that, among other things, sought a rul-
ing that USDA had violated the provisions of NEPA by fail-
ing 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 For-
BETTER FORESTRY v. USDA 6853
estry 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 dis-
trict 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
equivalent 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 rely-
ing on precedents that do not control the case at bar.
Although the Supreme Court in Buckhannon began its anal-
ysis by consulting Black’s Law Dictionary, the Court distilled
the dictionary definition of “prevailing party” into two essen-
tial requirements. A litigant prevails by: (1) obtaining a “ma-
terial 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 (2001) (internal quota-
tion marks omitted); see also Carbonell v. INS, 429 F.3d 894,
898 (9th Cir. 2005) (applying the test).
6854 BETTER FORESTRY v. USDA
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. Enforceable
judgments on the merits and court-ordered consent decrees
clearly qualified. Id. at 604. Recovery of fees under the “cata-
lyst theory” did not.1 Id. at 605. As none of these clear exam-
ples control this case, we must venture into the gray area of
Buckhannon.2
Two cases cited in Buckhannon are relevant here. The
majority only mentions Hewitt v. Helms, 482 U.S. 755 (1987).
In that case, the plaintiff (Helms) “obtained no relief,” only “a
favorable judicial statement of law in the course of litigation
that result[ed] in judgment against the plaintiff.” Id. at 760,
763 (emphasis added). As the Buckhannon Court recognized,
Helms could not recover because the “judicial pronouncement
that the defendant has violated the Constitution [was] unac-
companied by ‘judicial relief.’ ” 532 U.S. at 606 (quoting
Hewitt, 482 U.S. at 760). 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
1
Prior to Buckhannon, most courts of appeals allowed a plaintiff to “pre-
vail” 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 volun-
tary change in the defendant’s conduct.” Id. at 601, 605.
2
As the majority recognizes, Buckhannon is broad enough to encompass
other forms of relief. See supra p. 6848 (noting that legally enforceable
settlement agreements and preliminary injunctions can qualify as relief).
BETTER FORESTRY v. USDA 6855
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 Parham’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
employer 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 cata-
lyst” 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 Parham
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 enforce-
able judgment permits an award of attorney’s fees.
Buckhannon, 532 U.S. at 607 n. 9 (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, Parham, and Hewitt sug-
gest that a plaintiff may recover attorneys’ fees under a func-
tional equivalence theory, provided that the judgment is
enforceable. Cf. Smalbein v. City of Daytona Beach, 353 F.3d
6856 BETTER FORESTRY v. USDA
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 incor-
porates 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 (Scalia, J., con-
curring) (“[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 Citi-
zens’ 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. John-
son, 256 F.3d 895, 914 (9th Cir. 2001) (“[W]here a panel con-
fronts 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 pre-
cludes 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
BETTER FORESTRY v. USDA 6857
statement of law to hold federal agencies accountable for cir-
culating EAs for public review, thereby furthering NEPA’s
goal of protecting the environment through public participa-
tion. See, e.g., Ocean Mammal Inst. v. Gates, 546 F. Supp. 2d
960, 972 (D. Haw. 2008); W. Watersheds Project v. Bennett,
392 F. Supp. 2d 1217, 1222 (D. Idaho 2005); Mont. Wilder-
ness 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 condi-
tional relief. 482 U.S. at 758. Once the district court deter-
mined that the prison officials were protected by qualified
immunity, the conditional relief evaporated. Id. at 760. 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 . . . suggest[ed] that [the] plaintiff was
awarded declaratory relief.” 421 F.3d at 908; see also id. at
903 (“Although plaintiff contends that she received a declara-
tory 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 plaintiff’s constitu-
tional 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
6858 BETTER FORESTRY v. USDA
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 “obtain[ed] 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 equiva-
lent to a declaratory judgment and did provide the relief Citi-
zens had sought. The USDA could no longer lawfully proceed
under the new rule. The award of attorneys’ fees was there-
fore proper, and we should affirm the district court.