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UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

WINNEMUCCA INDIAN COLONY, etal.,

Plaintiffs,

v.

UNITED STATES OF AMERICA, et al.,

Defendants.

Case No. 2:06-cv-00497-LDG (PAL)

ORDER

The plaintiffs brought this action to challenge the Defense Threat Reduction

Agencys decision to conduct the Divine Strake test at the Nevada Test Site, a decision

which the defendants have since withdrawn. The court subsequently granted (#72) the

defendants motion to dismiss (#59). The plaintiffs now move for attorneys fees as the

prevailing party (#73) , which motion the defendants oppose (#74).1

The critical issue to plaintiffs motion is whether they qualify as a prevailing party

pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412(d)(1)(A). In Farrar v. Hobby,

506 U.S. 103, 111 (1992), the Supreme Court held that, to be a prevailing party, a plaintiff

The plaintiffs previously moved for attorneys fees, which motion the court1

denied as premature as a final order had not yet been entered in the litigation.

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must obtain an enforceable judgment or comparable relief through a consent decree or

settlement. In Buckhannon Board and Care Home, Inc. v. West Virginia Dept of Health

and Human Resources, 432 U.S. 598, 610 (2001), the Supreme Court squarely rejected

the catalyst theory as a permissible basis to find a plaintiff to be a prevailing party.

Rather, the court reiterated that a prevailing party is one who has been awarded some

relief by the court. Id., at 603. In short, enforceable judgments on the merits and court-

ordered consent decrees create the material alteration of the legal relationship of the

parties necessary to permit an award of attorneys fees. Id., at 604.

The plaintiffs do not, and cannot, direct the courts attention to an enforceable

judgment or court-ordered consent decree that materially altered the legal relationship of

the parties. The plaintiffs, instead, rely upon the rejected catalyst theory, expressly

arguing that, but for their complaint, the government would not have withdrawn its decision

to conduct the Divine Strake test. Even assuming the existence of this but for causality

between the plaintiffs complaint and the decision to not conduct the Divine Strake test as

argued by plaintiffs, such relationship does not support an award of fees if, as in this

matter, it lacks judicial sanction. Accordingly,

THE COURT ORDERS that Plaintiffs Motion for Attorneys Fees (#73) is DENIED.

DATED this ______ day of December, 2008.

Lloyd D. George

United States District Judge

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