1990 WL (D.Hawai'i) activity in certain designated areas utilized by humpback whales and green sea turtles.

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1 1990 WL (D.Hawai'i) GREENPEACE FOUNDATION, Sierra Club, Whale Center, Maui Hotel Association, West Maui Taxpayers Assoc., Davis Drown, Richard Roshon, Ron Dela Cruz, Cecil Killgore, Wayne Nishiki, Plaintiffs, v. DEPARTMENT OF TRANSPORTATION, STATE of HAWAII, and Edward Y. Hirata, in his capacity as Director of the Department of Transportation. State of Hawaii, Defendants, Ufo Chuting of Hawaii, Inc., Parasailing Hawaii, Inc., and West Maui Para-Sail, Inc., Defendants In Intervention. Civ. No ACK. United States District Court, D. Hawai'i. July 30, Arnold L. Lum, Michael R. Sherwood, Sierra Club Legal Defense Fund, Inc., Honolulu, Hawaii, for plaintiffs. Warren Price, Lane T. Ishida, Deputy Attorney General, Honolulu, Hawaii, Paul Johnson Alston & Hunt, Dennis Niles, William M. McKeon, Angela Vaninetti, Wailuku, Maui, for defendants. ORDER DENYING PLAINTIFFS' MOTION FOR AWARD OF ATTORNEY'S FEES AND COSTS KAY, District Judge. I. BACKGROUND *1 Pursuant to State legislation mandating the regulation of thrillcraft and parasail business operations in State waters, the State Department of Transportation ("DOT") promulgated administrative regulations entitled "Ocean Recreation Management Rules and Areas" ("ORMRA") designating areas where these businesses would be allowed to operate. These ORMRA rules became effective on September 30, By letter dated September 27, 1988, the National Marine Fisheries Service ("NMFS"), the federal agency charged with administering the Endangered Species Act ("ESA") with respect to protected marine species, commented on the newly-adopted ORMRA rules and made several specific recommendations for their improvement, including a five-month seasonal ban (December 15 through May 15) on any thrill-craft/parasailing activity in certain designated areas utilized by humpback whales and green sea turtles. On October 5, 1988, Plaintiffs sent Defendants a 60-day Notice of Violation, as required under 11(g) of the ESA, 16 U.S.C. 1540(g)(2), informing Defendants that a lawsuit would be commenced 60 days thereafter to enjoin alleged violations of the ESA unless the ORMRA rules were withdrawn and thrillcraft/parasail activity was banned in areas utilized by humpback whales and green sea turtles. At the same time, Plaintiffs filed a complaint in State court challenging the adoption of the ORMRA rules. After the expiration of the 60-day notice period, Plaintiffs filed on December 20, 1988 the complaint in the case at bar, alleging that Defendants because of the ORMRA rules were in violation of the ESA, 16 U.S.C et seq. Plaintiffs asked this Court for declaratory and injunctive relief to invalidate and set aside the ORMRA rules. Plaintiffs also stipulated with Defendants to stay the proceedings in the state court action pending the outcome of the federal action. On January 10, 1989, Defendants answered the complaint with a denial that the ORMRA rules violated the ESA. Defendants subsequently informed Plaintiffs that they were in fact considering amendments to the rules. Meanwhile, three parasail businesses successfully intervened as Parties-Defendants. On June 16, 1989, the State legislature passed Act 342 which directed the DOT to adopt rules that, besides designating areas, specified time periods during which thrillcraft/parasailing activity would be allowed in State waters. Pursuant to this legislation, the DOT proposed new rules incorporating the December 15 through May 15 yearly five-month ban suggested by the NMFS. These new rules were adopted on December 18, Following adoption of these amended ORMRA rules, on January 30, 1990, all parties to the instant action stipulated to dismiss Plaintiffs' complaint as moot, reserving for this Court the issue of Plaintiffs' entitlement to attorney's fees under the ESA. Also following adoption of the amended rules, several thrillcraft and parasail operators, including Defendant Intervenors, sued the DOT, claiming that the amended rules violated the Hawaii Administrative Procedure Act because State Defendants had failed to fully consider testimony submitted during public hearings on the amended rules. *2 On January 18, 1990, the State Second Circuit Court on Maui invalidated the amended ORMRA rules, holding that the DOT had violated statutory rule- making procedures in its adoption of the rules.

2 At the same time, the court was careful to note that its decision had nothing to do with the substance of the amended rules. Defendants thereafter withdrew the amended rules provisions which imposed a five-month seasonal ban on thrillcraft/parasail operations. The DOT is currently in the process of re-proposing amendments to the ORMRA rules to protect the humpback whale and turtle habitat affected by thrillcraft/parasail activity. Moreover, on July 3, 1990, the Governor signed into law Act 313 which bans any thrillcraft/parasailing activity off the west and south shores of Maui from December 15 through May 15 of each year. II. JURISDICTION Since Plaintiffs are seeking attorney's fees in this action pursuant to 16 U.S.C. 1540(g)(4), this Court has federal question jurisdiction pursuant to 18 U.S.C III. DISCUSSION Plaintiffs are claiming attorney's fees pursuant to 11(g)(4) of the ESA, 16 U.S.C. 1540(g)(4) which provides as follows: The court, in issuing any final order in any suit brought pursuant to paragraph (1) of this subsection, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. Plaintiffs contend that the Supreme Court's decision in Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983) requires that only a "prevailing party" which has achieved some success on the merits of its case may appropriately be awarded attorney's fees under the statute. In Ruckelshaus, the Supreme Court reviewed a lower court decision to award attorney's fees under 307(f) of the Clean Air Act, 42 U.S.C. 7607(f), whose language is identical to that of 16 U.S.C. 1540(g)(4). [FN1] Id. at 682. The appellate court had awarded attorney's fees to the respondent Sierra Club despite the Club's failure to obtain any of the relief it had requested. Id. The Supreme Court reversed the appellate court's award and stated: The question presented by this case is whether it is "appropriate," within the meaning of 307(f) of the Clean Air Act, to award attorney's fees to a party that achieved no success on the merits of its claims. We conclude that the language of the section, read in the light of the historic principles of fee- shifting in this and other countries, requires the conclusion that some success on the merits be obtained before a party becomes eligible for a fee award under 307(f)... we believe that the term "appropriate" modifies but does not completely reject the traditional rule that a fee claimant must "prevail" before it may recover attorney's fees. Id. at 682, 686. Plaintiffs next cite several Ninth Circuit decisions in which the court held that a case need not proceed to a trial and a final judgment on the merits in order for a party to have "prevailed" for attorney's fees purposes. See Lads Trucking Co. v. Board of Trustees, 777 F.2d 1371, 1375 (9th Cir.1985) (attorney's fees not precluded when dispute has become moot because relief otherwise obtained); Greater Los Angeles Council on Deafness v. Community Television of So. Calif., 813 F.2d 217, 220 (9th Cir.1987) (favorable administrative reform undertaken as the result of lawsuit enough to confer prevailing party status). *3 Plaintiffs assert that the Ninth Circuit has distilled the teaching of these and other earlier cases in Andrew v. Bowen, 837 F.2d 875 (9th Cir.1988). In Andrew, the Ninth Circuit stated: This court has adopted a two-part test for determining prevailing party status when a case has not gone to final judgment... Under this test, the party seeking to establish "prevailing party" status must demonstrate that: (1) as a factual matter, the relief sought by the lawsuit was in fact obtained as a result of having brought the action, and (2) there was a legal basis for the plaintiff's claim. Under the first level of inquiry, the court must identify what the lawsuit originally sought to accomplish and what relief actually was obtained. It must then determine whether there exists a "clear causal relationship between the litigation brought and the practical outcome realized." Id. at 877. Plaintiffs argue that they qualify as prevailing parties according to the Andrew test because their lawsuit "acted as a catalyst, prompting Defendants to amend the Rules." Plaintiffs' Memo in Support of Motion at 10. Plaintiffs assert that "the chronological sequence of events supports, by circumstantial evidence, a nexus between the filing of the lawsuit and the Defendants' amendment of the ORMRA Rules." Id. at 11. Plaintiffs thus contend that their lawsuit in fact "triggered the promulgation of the amended ORMRA Rules." Id. at 12. Plaintiffs also argue that the recently passed legislation (Act 313) prohibiting thrillcraft/parasailing activity in Maui

3 waters during the humpback whale season is further evidence of their success in the present case. Plaintiffs' Reply Memo at 2. Plaintiffs contend that because the State Second Circuit Court on Maui invalidated the amended rules on purely procedural grounds, they still qualify as the prevailing party in the instant case. Memo in Support of Motion at 5-6. Defendants, on the other hand, contend that a party's prevailing party status is insufficient to warrant the award of attorney's fees under 1540(g)(4). Defendants argue that the Ninth Circuit in Carson-Truckee Water Conservancy District v. Secretary of the Interior, 748 F.2d 523 (9th Cir.1984), cert. denied, 471 U.S (1985) held that a prevailing party must also show that it has substantially contributed to the goals of the ESA in order to be entitled to an award of attorney's fees. The Ninth Circuit in Carson- Truckee stated that: Ruckelshaus decided that it is not "appropriate" to award attorney fees to a party that achieved no success on the merits of its claims. The Court held that Congress intended the "when appropriate" standard to permit awards to partially as well as fully prevailing parties... But Ruckelshaus dealt only with eligibility for, not with entitlement to, a statutory award. Nothing in Ruckelshaus suggests that the Court meant to reject the rule that, under the "when appropriate" standard, an eligible party must make a substantial contribution to the goals of a statute to be entitled to attorney fees. *4 Id. at 526. Defendants' contention regarding the issue of entitlement to attorney's fees under the ESA is correct. In Abramowitz v. U.S. E.P.A., 832 F.2d 1071 (9th Cir.1987), the court provided the Ninth Circuit rule regarding the "when appropriate" standard contained in federal statutes such as 1540(g)(4). Like the Supreme Court in Ruckelshaus, the Ninth Circuit in Abramowitz was faced with the determination of attorney's fees under 307(f) of the Clean Air Act, 42 U.S.C. 7607(f). Id. at The Ninth Circuit expressly adopted the rulings of both Ruckelshaus and Carson-Truckee in its holding. The court stated: Petitioner and certain intervenors seek award of costs of litigation including attorney's fees. Under 42 U.S.C. 7607(f), we can do so whenever we determine that "such award is appropriate." Here, we deem an award appropriate because petitioner has (1) prevailed on the merits and (2) contributed substantially to the goals of the Act in doing so. Ruckelshaus v. Sierra Club, 463 U.S. 680, (1983); Carson-Truckee Water Conservancy Dist. v. Secretary, 748 F.2d 523, (9th Cir.1984), cert. denied, 471 U.S (1985). Id. The Ninth Circuit in Abramowitz thus set forth a two-part test to determine whether a party is entitled to attorney's fees under statutes such as 1540(g)(4) that provide for such awards "when appropriate." Therefore, Plaintiffs in the case at bar must demonstrate (1) that they qualify as the prevailing party, and (2) that they contributed substantially to the goals of the ESA in bringing their complaint against the DOT and prevailing. 1. Whether Plaintiffs qualify as the prevailing party In order to qualify as the prevailing party for purposes of an award of attorney's fees under the statute, according to the Andrew test, Plaintiffs must first demonstrate that "there exists a 'clear causal relationship between the litigation brought and the practical outcome realized.' " Andrew, 837 F.2d at 877. As previously noted, Plaintiffs themselves admit that the most they can show in the present case is "circumstantial evidence" based on a chronological sequence of events. Plaintiffs further admit that they have "no direct evidence to present to the court as to the motivations of Defendants in amending the Rules." Memo in Support at 12. Defendants, on the other hand, claim that the DOT amended the ORMRA rules not because of Plaintiffs' lawsuit, but rather as a direct consequence of both the NMFS letter of September 27, 1988 and the legislative mandate expressed in Act 342, which became law in June, Defendants' Memo in Opposition at 8. Plaintiffs claim that the chronological sequence of events presents compelling evidence in support of their argument for attorney's fees. However, the chronological sequence of events supports Defendants' contentions at least as compellingly as Plaintiffs'. Plaintiffs claim that the major benefit won by their bringing a lawsuit is the five-month ban on thrillcraft/parasailing activity mandated by both the amended ORMRA rules and by the recently-passed Act 313. But this specific item was not a part of their original complaint for declaratory and injunctive relief. Moreover, this five-month ban was one of the principal specific items contained in the September 27 letter of recommendations from the NMFS to the DOT. Also, the DOT received the NMFS' September 27 letter and thus was fully apprised of the NMFS concerns before Plaintiffs even notified the DOT, by letter dated October 5, of their intention to bring suit against the DOT under the ESA.

4 *5 Plaintiffs imply that it was as a resultof their suit that Defendants notified them shortly thereafter that the DOT was considering amendments to the ORMRA rules. However, Defendants' contention that their consideration of amendments such as the five-month ban resulted principally from the NMFS recommendations is just as plausible, especially since, as Plaintiffs themselves note, the NMFS is the federal agency empowered to administer the ESA to protect endangered marine species. Defendants assert that they "naturally gave great weight to an administrative agency acting in its field of expertise." Memo in Opp. at 8. Defendants further note that they were subsequently directed by the legislature specifically to designate time periods as well as areas in which thrillcraft/parasailing activity would be banned. Defendants claim that this legislative mandate was also the result of the NMFS concerns. Memo in Opp. at 8. Defendants are referring here to Act 342 which took effect on June 16, In Act 342, the legislature for the first time mandated that the DOT designate time periods in addition to areas in which thrillcraft/parasailing activity would be banned. It is noteworthy that Act 342 originated in the legislative session immediately following the State's receipt of the NMFS September 27, 1988 letter; it was the first opportunity the legislature had to act on the NMFS recommendations contained in that letter. Additionally, a review of the legislative committee reports on Act 342 lends support to Defendants' contentions. The House standing committee stated that: In the absence of specific statutory prohibitions, the Department [of Transportation] has addressed some of these concerns [regarding the humpback whale and the green sea turtle] by proposing certain rule changes which would effectively ban the operation of commercial ocean recreation activities during specific times and in specific areas... Your Committees further find that the recommendations of the National Marine Fisheries Service and the potential adverse biological impact on the ocean environment in Kaneohe Bay and other areas of unique ecological significance have also been seriously taken into consideration by the DOT for potential rule amendments. (emphasis added) House Stand.Comm.Rep. No , in 1989 House Journal, at The House committee made no mention of the Plaintiffs or their lawsuit against the DOT. The Senate standing committee reporting on the proposed bill stated: Your Committees have learned that this potential problem has prompted the National Marine Fisheries Service to request a number of rule amendments to the State Ocean Recreation Management Plan in order to ensure the continued protection of the humpback whale. (emphasis added) Sen.Stand.Comm.Rep. No , in 1989 Senate Journal, at The Senate committee then stated that "[c]ertain environmental groups have followed suit by initiating legal actions against the State for similar reasons." Id. The Senate committee appears to have considered Plaintiffs' lawsuit as essentially following the lead--"followed suit"--of the NMFS. Moreover, the Senate report suggests that other environmental groups besides Plaintiffs' filed lawsuits against the DOT. *6 Finally, the House-Senate Conference Committee reported that: Your Committee has substantially amended this bill to authorize the Department to incorporate into its rules time periods during which thrill craft and parasailing activities may operate within the designated areas. This amendment greatly expands the management options available to the Department. First of all, it allows the Department to address the recommendations of the National Marine Fisheries Service by suspending thrill craft and parasailing activities during "whale season" and at times when such activity would adversely impact the green sea turtle and other threatened and endangered marine life. (emphasis added) Conf.Com.Rep. No. 96 on S.B. No. 1165, in 1989 Senate Journal, at 799. The conference committee did not mention any lawsuits by environmental groups. Again, there is nothing in Plaintiffs' original complaint pertaining to specific time periods. In light of the foregoing legislative history, Defendants' contention that the legislative mandate of Act 342, itself expressly prompted by the September 27 NMFS recommendations, had more to do with the amended ORMRA rules than Plaintiffs' lawsuit is more compelling than Plaintiffs' contention that their lawsuit was the cause of Defendants' action. Plaintiffs also rely on Armstrong v. Reed, 462 F.Supp. 496 (1978) and Greater L.A. Coun. on Deafness v. Community TV of So. Cal., 813 F.2d 217 (9th Cir.1987). In Armstrong, the plaintiffs

5 sued certain State officials to terminate State financial support to segregated private schools. Armstrong, 462 F.Supp. at 498. The State legislature subsequently terminated the financial support to the segregated schools. Id. Although the court then directed the entry of a final judgment in favor of the State defendants, the court also ruled that the plaintiffs had accomplished their goal by way of the State legislation and were thus prevailing parties for the purpose of attorney's fees. Id. at 499. In Community TV, the plaintiffs sued the HEW and the federal Department of Education to require them to provide mandatory closed-captioning for television programs broadcast by the local public-television station. 813 F.2d at 219. Although the government defendants ultimately won a final judgment in the case, the Department of Education did adopt administrative regulations requiring the closed-captioning requested by the plaintiffs. Id. The Ninth Circuit thus ruled that the plaintiffs could be considered the prevailing parties for the purpose of attorney's fees. Id. Plaintiffs' reliance on Armstrong and Community TV in the case at bar is misplaced. Both Armstrong and Community TV are distinguishable from the instant case. In neither of the Armstrong or Community TV fact situations was there any other significant factor involved besides the plaintiffs' lawsuit against the respective defendants. In the instant case, on the contrary, both the September 27 NMFS letter and the resulting State legislation prompted by that letter--act 342--played substantial roles in the DOT's adoption of the amended ORMRA rules. Plaintiffs cannot show that their lawsuit was clearly the reason that the DOT adopted the amended rules. Plaintiffs have thus failed to demonstrate the "clear causal relationship between the litigation brought and the practical outcome realized" required by the Ninth Circuit in Andrew to qualify as the prevailing party in the instant case. [FN2] amended ORMRA rules/act 313, they would thereby also be able to clearly demonstrate a substantial contribution to the goals of the ESA. Because Plaintiffs are unable to fulfill the prevailing party requirements, however, they are also thereby unable to fulfill the substantial contribution requirements. Although it finds Plaintiffs' efforts on behalf of the humpback whale and green sea turtles commendable, this Court is unable to grant Plaintiffs their attorney's fees in the case at bar. IV. ORDER Accordingly, it is hereby ORDERED that Plaintiffs' motion for award of attorney's fees and costs is DENIED. DATED: Honolulu, Hawaii, JUL FN1. The Court noted that 16 federal statutes, including 1540(g)(4) of the ESA, contain provisions for awards of attorney's fees identical to 307(f) of the Clean Air Act. The Court further asserted that "the interpretation of 'appropriate' in 307(f) controls construction of the term in these statutes." Ruckelshaus, 463 U.S. at n. 1. FN2. Because Plaintiffs cannot fulfill the "clear causal relationship" requirement of the first prong of the Andrew two-part test for a prevailing party, the second prong of the Andrew test need not be reached. 2. Whether Plaintiffs contributed substantially to the goals of the ESA in the instant case *7 Because Plaintiffs have failed to demonstrate that they qualify as the prevailing party in the case at bar, the second prong of the Abramowitz test need not be reached. Plaintiffs have made no showing of a substantial contribution to the goals of the ESA. This Court finds, however, that in the case at bar the "substantial contribution" prong of Abramowitz is logically dependent upon the initial "prevailing party" prong. If Plaintiffs were able to demonstrate the requisite clear causal relationship between their lawsuit and the