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BIODIVERSITY CONSERVATION ALLIANCE v. STEM

No. 07-1061.

519 F.3d 1226 (2008)

BIODIVERSITY CONSERVATION ALLIANCE, Plaintiff-Appellee, v. Richard C. STEM, in his official capacity as Deputy Regional Forester of the Rocky Mountain Region of the United States Forest Service; United States Forest Service, a Federal Agency within the United States Department of Agriculture, Defendants-Appellants.

United States Court of Appeals, Tenth Circuit.

March 18, 2008.

Attorney(s) appearing for the Case

John E. Arbab, Attorney (David C. Shilton, Attorney, Matthew J. McKeown, Acting Assistant Attorney General, and Kenneth S. Capps, of Counsel, Appellate Section of the United States Department of Justice, with him on the briefs), for Defendants-Appellants.

Matt Kenna, Western Environmental Law Center, Durango, Colorado (Brad A. Bartlett and Travis Stills, Durango, CO, with him on the brief), for Plaintiff-Appellee.

Before O'CONNOR, Associate Justice (Ret.), HENRY, Chief Circuit Judge, and TACHA, Circuit Judge.

O'CONNOR, Associate Justice (Ret.).

The United States Forest Service appeals from the district court's award of attorneys' fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d) to plaintiff Biodiversity Conservation Alliance ("BCA"). Because we hold that plaintiff was not a "prevailing party" in the underlying litigation, we reverse the district court's award of fees and remand for proceedings consistent with this opinion.

I.

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