McGee

MEMORANDUM **

Southwest Center for Biological Diversity (the “Center”) appeals the District Court’s award of attorney’s fees and costs to defendant-intervenor Valer Austin and the denial of attorney’s fees to it. Austin held one of 47 grazing allotments that the Center challenged in the underlying action. Pursuant to the Endangered Species Act, 16 U.S.C. §§ 1531-38 , the U.S. Forest Service must consult with the U.S. Fish and Wildlife Service before allowing any activities, including grazing, that may affect certain endangered species. Id at § 1536. Once the Forest Service had completed its consultation and determined that the “take” of endangered species on the challenged allotments was “incidental,” and therefore lawful, the Center moved to have its suit dismissed as moot.

Austin objected to the Court’s dismissal of the action as moot, at which point the Court recharacterized the dismissal as being “with prejudice” to allow the parties to collect fees and costs from each other. The Forest Service paid the Center a portion of its fees, and the Center and the other parties agreed to have each party bear its own fees and costs. Only Austin *364 and the Center submitted motions to…