A recent Law 360 story by Ali Sullivan, “Ariz. Tribes Say The Are ‘Prevailing Party’ In Mine Win”, reports that Native American tribes that successfully sued the federal government to stop construction on a copper mine in Arizona implored a federal judge to find the tribal nations prevailed under a federal historic preservation law, telling the court that their win requires the U.S. government to reimburse the tribes' legal costs.

The Tohono O'odham Nation, Pascua Yaqui Tribe and Hopi Tribe slammed the U.S. Forest Service for refusing to acknowledge their "resounding success" in the copper mine challenge.  The tribes, alongside environmental groups, obtained a court order in July 2019 blocking Rosemont Copper Co.'s proposed mine and vacating the Forest Service's decision approving the project, a ruling upheld by a divided Ninth Circuit panel last year.  Those results, the tribes argued, prove the Arizona-based tribal nations are the "prevailing parties" under the National Historic Preservation Act's waiver of sovereign immunity and therefore entitled to attorney fees and costs under the law's fee-shifting provision.

Although the federal and appellate courts did not rule on the tribes' NHPA claim, the rulings still rescued cultural resources from destruction and fulfilled the purpose of the law, the tribes argued.  "The NHPA authorizes the recovery of attorneys' fees and costs for 'any interested person' that 'substantially prevails' in 'any civil action brought' to enforce the Act," the tribes said.  "The tribes readily satisfy this fee-shifting provision because they succeeded on the 'dispositive issues' at the core of their lawsuit, including their NHPA claim."

A divided Ninth Circuit panel in May 2022 found that U.S. District Judge James A. Soto was correct to find that the Forest Service had inappropriately approved Rosemont's mining plan of operations, which included authorizations to permanently dump waste rock on 2,447 acres of national forest land to which the company does not hold valid mining rights.

Even though the tribes won "at all levels of the litigation," they haven't reached an agreement with the federal government over whether they are entitled to attorney fees and costs under the NHPA, the tribes told the court in June.  Instead, the court will decide the "threshold issue" to move along a potential fee settlement between the parties.  "We hope to be in a position to settle fees with the government, once the court rules on the prevailing-party issue," Stuart Gillespie, an Earthjustice attorney representing the tribes, said in an email to Law360.

The federal government contended last month that the tribes can't obtain fees under the NHPA because they did not win any relief based on that specific claim.  The Equal Access to Justice Act details certain size limitations for winning plaintiffs looking to obtain attorney fees from the U.S. government, federal officials said, capping entities' net worth at $7 million and their number of employees at 500.

The tribes — which do not meet that size limitation — can't "sidestep" the EAJA's maximums by asserting they prevailed under their NHPA cause of action, the government said.  That outcome would incentivize plaintiffs to tack doomed NPHA claims onto their lawsuits to qualify for attorney fees for which they would otherwise be ineligible, the government contended.

"If adopted, the tribes' theory of eligibility for fees under the NHPA's narrow waiver of sovereign immunity would virtually nullify the size limitations on EAJA's waiver of sovereign immunity,'' federal officials said.  The tribes countered that federal officials' "strawman arguments ... are sorely misplaced," arguing that, unlike the government's hypothetical, the court's ruling cut to the root of their NHPA claim.

"The tribes prevailed on the 'dispositive issue' that was 'closely connected' — indeed the crux of — their NHPA claim," the tribes said.  "Accordingly, they seek fees under the NHPA, not EAJA's fall-back provision — the very approach instructed by Congress, the courts, and the government's own fee-shifting policy."