                                                                                FILED
                      UNITED STATES COURT OF APPEALS                            FEB 26 2014

                                                                          MOLLY C. DWYER, CLERK
                              FOR THE NINTH CIRCUIT                         U.S. COURT OF APPEALS




JOSEPH A. PAKOOTAS, an individual                No. 10-35045
and enrolled member of the Confederated
Tribes of the Colville Reservation; et al.,      D.C. No. 2:04-cv-00256-LRS
                                                 Eastern District of Washington,
                Plaintiffs - Appellees,          Spokane

STATE OF WASHINGTON,
                                                 ORDER
                Plaintiff-intervenor -
Appellee,

  v.

TECK COMINCO METALS, LTD., a
Canadian corporation,

                Defendant - Appellant.


Before: ALARCÓN, KLEINFELD, and CLIFTON, Circuit Judges.


         The memorandum disposition filed on September 16, 2013, is hereby

amended. The amended memorandum disposition is filed concurrently with this

order.



         With these amendments, the panel has voted to deny the petitions for

rehearing. Judge Clifton voted to deny the petitions for rehearing en banc. Judge
Alarcón and Judge Kleinfeld have recommended the same. The full court has been

advised of the petitions for rehearing en banc and no judge has requested a vote on

whether to rehear this disposition en banc. Fed. R. App. P. 35.



      The petitions for rehearing and petitions for rehearing en banc are DENIED.

No further petitions for rehearing or rehearing en banc will be accepted.




                                         2
                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              FEB 26 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

JOSEPH A. PAKOOTAS, an individual                No. 10-35045
and enrolled member of the Confederated
Tribes of the Colville Reservation; et al.,      D.C. No. 2:04-cv-00256-LRS

              Plaintiffs - Appellees,            AMENDED
                                                 MEMORANDUM*
STATE OF WASHINGTON,

              Plaintiff-intervenor -
Appellee,

  v.

TECK COMINCO METALS, LTD., a
Canadian corporation,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Eastern District of Washington
                    Lonny R. Suko, District Judge, Presiding

                            Submitted August 9, 2011**
                               Seattle, Washington


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: ALARCÓN, KLEINFELD, and CLIFTON, Circuit Judges.



      We previously published two opinions in the underlying case, Pakootas v.

Teck Cominco Metals, Ltd., 452 F.3d 1066 (9th Cir. 2006), and Pakootas v. Teck

Cominco Metals, Ltd, 646 F.3d 1214 (9th Cir. 2011). We now address a separate

appeal, from an award of attorney’s fees in the underlying case.1



      Teck Cominco Metals Ltd. appeals the district court’s grant of attorney’s

fees to Pakootas, Michel, and the State of Washington under the Comprehensive

Environmental Response, Compensation, and Liability Act (“CERCLA”).



      The district court awarded attorney’s fees based on 42 U.S.C. § 9659(f),

which applies specifically to CERCLA citizen suits. Section 9659(f) provides:

      The court, in issuing any final order in any action brought pursuant to this
      section, may award costs or litigation (including reasonable attorney and
      expert witness fees) to the prevailing or the substantially prevailing party
      whenever the court determines such an award is appropriate.




      1
          This panel assumed jurisdiction of this appeal November 19, 2010, but the
briefs preceded our decision on the merits of the underlying case. We ordered
supplemental briefing to address the effect of our decision on the merits. The
supplemental briefs were filed August 8 and 9, 2011.

                                         2
Id. (emphasis added). “We review a district court’s determination regarding

‘prevailing party’ status de novo.” La Asociacion de Trabajadores v. City of Lake

Forest, 624 F.3d 1083, 1089 (9th Cir. 2010).



      “[F]or a litigant to be a ‘prevailing party’ for the purpose of awarding

attorneys’ fees, he must meet two criteria: he must achieve a material alteration of

the legal relationship of the parties, and that alteration must be judicially

sanctioned.” P.N. v. Seattle Sch. Dist. No. 1, 474 F.3d 1165, 1172 (9th Cir. 2007)

(internal quotation marks omitted). In Saint John’s Organic Farm v. Gem County

Mosquito, we articulated “three conditions necessary” for prevailing party status

based on a settlement agreement between the parties to the litigation: “(1) judicial

enforcement; (2) material alteration of the legal relationship between the parties;

and (3) actual relief on the merits of [plaintiff’s] claim.” 574 F.3d 1054, 1059,

1061 (9th Cir. 2009).



      Here, the district court concluded that a settlement agreement between Teck

Cominco and the Environmental Protection Agency “materially altered the legal

relationship between Defendant and Plaintiffs Pakootas and Michel.” But none of

the plaintiffs in this case were parties to the settlement agreement between Teck


                                           3
Cominco and the EPA, an agreement that was extrajudicial and was not

incorporated into a court order. We have held that a plaintiff prevails where “the

plaintiff can force the defendant to do something he otherwise would not have to

do.” Richard S. v. Dep’t of Developmental Servs., 317 F.3d 1080, 1086 (9th Cir.

2003) (emphasis added) (quoting Barrios v. Cal. Interscholastic Fed’n, 227 F.3d

1128, 1134 (9th Cir. 2002)).



      Here, although the settlement agreement between the defendant and EPA

may have produced a benefit for the plaintiffs, it did not materially alter the legal

relationship between the defendant and the plaintiffs with any judicial imprimatur.

The settlement agreement was never filed with the district court, nor were its terms

incorporated into any court order. The agreement did provide that Teck Cominco,

a Canadian corporation, consented to personal jurisdiction in the Eastern District of

Washington, but only for an action brought by EPA. The agreement did not result

in a consent decree. The district court did not retain any supervisory authority over

the agreement or provide plaintiffs with any ability to enforce it. The settlement

agreement itself specifically provided that it did not “grant any cause of action to

or establish a basis for jurisdiction in local, state or federal courts in the United

States for, any person not a Party to this Agreement.” As a result, Pakootas,


                                            4
Michel, and the State of Washington cannot force Teck Cominco to do anything.

The district court thus erred in granting attorney’s fees to Pakootas, Michel, and

the State of Washington.



      We reverse and remand so that the attorney’s fees award may be vacated,

and for such other relief as may be appropriate.



REVERSED and REMANDED.




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