                                                                              FILED
                           NOT FOR PUBLICATION                                SEP 16 2013

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



                            FOR THE NINTH CIRCUIT


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,
                                                 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, as ‘[t]he question of whether a judgment has

materially altered the legal relationship of the parties is a legal one.’” 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


                                           3
relationship between Defendant and Plaintiffs Pakootas and Michel.” But none of

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

Cominco and the EPA. The settlement agreement was extrajudicial and was not

incorporated into a court order. We have held that “a plaintiff ‘prevails,’ and thus

is entitled to attorney’s fees and costs, when he or she enters into a legally

enforceable settlement agreement with the defendant.” Richard S. v. Dep’t of

Developmental Servs., 317 F.3d 1080, 1086 (9th Cir. 2003) (emphasis added). We

have explained that “[i]n these situations, the legal relationship is altered because

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

to do.” Id. (emphasis added) (quoting Barrios v. Cal. Interscholastic Fed’n, 227

F.3d 1128, 1134 (9th Cir. 2002)).



      The district court acknowledged that it and parties were “unable to find any

case awarding fees to an individual or entity that, although a party to the litigation,

is not a party to the settlement agreement.” The settlement agreement between the

defendant and a third party did not materially alter the legal relationship between

the defendant and the plaintiffs, even if it may have produced a benefit to the non-

settling plaintiffs. Unlike Barrios v. California Interscholastic Federation, 277

F.3d 1128 (9th Cir. 2002), plaintiffs were not parties to the settlement agreement.


                                           4
The settlement agreement expressly provides that it creates no rights for “any

person not a Party to this Agreement.” Nor was the EPA, which settled with Teck

Cominco, a party to the litigation. Plaintiffs abandoned their claims for declaratory

and injunctive relief, and lost on their claims for civil penalties. The district court

erred in granting attorney’s fees to Pakootas, Michel, and the State of Washington

because they did not achieve a material alteration of their legal relationship with

Teck Cominco through litigation. Plaintiffs obtained no judicial or judicially

sanctioned relief on any of their claims, so they are not “prevailing parties” for

purposes of an attorney’s fees award.



      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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