United States v. 313.34 Acres of Land, More or Less, Situated in Jefferson County, State of Washington, and Gary Smith Janice Smith

ORDER

The opinion filed November 8, 1989, appearing at 889 F.2d 814 (9th Cir.1989) is hereby amended.

With the filing of the amended opinion, the panel has voted unanimously to deny the petition for rehearing.

GOODWIN and NORRIS, Circuit Judges, vote to reject the suggestion for rehearing en banc, and EUGENE H. WRIGHT, Circuit Judge, so recommends:

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed.R.App.P. 35(b).

The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.

OPINION

The government appeals an award, under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (d)(1)(A) (Supp. V 1987), of attorney and expert witness fees to the landowners in this action to condemn a large rock in Puget Sound which had become the site of a number of private homes. We vacate the decision to award fees and remand for findings on substantial justification.

Gary and Janice Smith (“the Smiths”) owned tract 2001 on Protection Island in Washington. The Smiths had purchased the tract in 1972 for $3800. The United States filed a complaint in…