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Lawsuit moot, but fees still paid

Published on November 15, 2012 3:01AM

Last changed on December 13, 2012 7:30AM

Federal government to pay $10,500 in compensation


Capital Press

The federal government has agreed to pay attorney fees to an environmental group for a lawsuit over irrigation facilities that was declared moot earlier this year.

In August, a federal judge dismissed a legal complaint filed by Oregon Wild that accused the U.S. Bureau of Reclamation of violating the Endangered Species Act.

The environmental group claimed that irrigation dams, diversions and canals -- part of the Rogue River Project operated by the agency in Oregon -- harm the threatened coho salmon.

After the lawsuit was filed, a biological opinion by the National Marine Fisheries Service found that the operations don't jeopardize the protected species.

The agency did find that incidental "take" of salmon would probably occur, but set out measures to minimize the negative impact. Based on those findings, U.S. District Judge Ann Aiken declared the Oregon Wild lawsuit moot.

The judge noted that Oregon Wild accused the Bureau of Reclamation of failing to implement its plans to mitigate harms to salmon, but it would have to file another case to pursue those claims.

The federal government has agreed to pay the environmental group $10,500 in compensation for litigation costs under a settlement that was recently approved by the court, according to court records.

Under the terms of the deal, Oregon Wild agreed to forgo its appeal of the ruling that dismissed the case.

However, the settlement preserves the environmental group's right to file future lawsuits over the irrigation project and against the NMFS biological opinion.

Capital Press was unable to reach an attorney for the federal government for comment.

Sean Stevens, executive director of Oregon Wild, said the fee award "doesn't represent the outlay of time and resources" expended by the group's attorney on the case.

The lawsuit is one part of litigation dating back more than a decade in which the environmental group had been "prodding" the agency to devise a plan to protect the fish, he said.

Though the case was declared moot and dismissed, Oregon Wild compelled the agency to take action, Stevens said. "The result is what we had been seeking."

Linda Larson, an attorney for affected irrigation districts, said her clients are in a "wait-and-see mode" regarding potential future litigation over the facilities.

"It's not within our control," she said.

Oregon Wild would have been able to sue over the project's operations and the biological opinion regardless of the settlement, Larson said.

Stevens said the group doesn't believe the biological opinion is perfect but doesn't plan to sue over it at this time.

The U.S. Department of Justice, which defends federal agencies in such lawsuits, has generally been more willing to pay attorney fees to environmental groups under the Obama administration, said Karen Budd-Falen, a natural resource attorney who tracks federal spending on environmental litigation.

Settlements in Endangered Species Act cases have annually netted environmental groups an average $6 million to $7 million in recent years under Obama, compared to $2 million or less under the Bush administration, she said.

"I think these numbers speak volumes about how easy it is to get money from this Justice Department," Budd-Falen said.

The federal government currently has no accountability for how much it's spending on compensation for attorney fees to environmental groups, so the process should be subject to more scrutiny, she said.

"There needs to be more transparency about these payments," Budd-Falen said.


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