For the second time in the past few years, a federal court has awarded attorneys’ fees to a defendant accused of violating the ESA, “when the plaintiff’s claims are frivolous, unreasonable, or without foundation, or when the plaintiff has continued to litigate after they have clearly become so.” Wildearth Guardians v. Kirkpatrick, et al., No. 12-118 (D.N.M. Sept. 11, 2015) (order awarding attorneys’ fees).
In Wildearth Guardians the Plaintiff brought this lawsuit against the Interim Director of the New Mexico Department of Game and sue and the New Mexico State Game Commission, both sued in their official capacity under the Endangered Species Act, alleging that they had “committed illegal “takes” of the Mexican gray wolf in violation of a special rule protecting that population.”
“The Guardians sought declarations that the Defendants had violated the . . .provisions by authorizing trapping within occupied wolf range without first exercising due care to avoid taking a gray wolf, as well as injunctions requiring Defendants to exercise due care in the future.”
Because neither Defendant had the authority to grant the relief sought on their own (promulgate regulations), the court dismissed the claims for lack of standing, and then found that the Guardians’ “claims against [the Chairman] became frivolous when another party pointed out, and the Guardians’ agreed, their claims against him could not meet the redressability requirement for Article III standing.”
The court awarded “the Chairman’s reasonable attorney’s fees in the amount of $173,999.07.”
In another ESA in which the court ruled that the defendant was entitled to attorney’s fees, Plaintiffs, the Humane Society of the United States and other animal-rights groups paid defendant Feld Entertainment, Inc. (FEI) a combined $15.75 million to settle allegations by the company that the groups and their lawyers bribed a former circus employee to make up allegations that Feld abused Asian elephants in its circus. See Animal Rights Groups Pay Circus Producer Millions To Settle Suit
Following the FEI case (which was based on allegations by a witness, the court found had been unlawfully paid for his testimony, that FEI had committed a “takes” by use of restraints of its elephants) there was speculation that such large award/settlement amounts may dissuade activists from bringing similar lawsuits.
That clearly has not happened, probably largely in part, due to the substantial revenue streams these groups cultivate from such activities. But perhaps it will give some would-be plaintiff’s reason to pause and consider the ramifications of frivolous complaints before filing.
 The total fees awarded resulted from a settlement of two cases, one in which ASPCA settled for $9.3 million in cash, and another in which HSUS, et al., settled for $15.75 million dollars.