                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          JAN 10 2001
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 THOMASINE ROSS; STANLEY
 ROSS; ANJANETTE BITSIE;
 PAMINA YELLOWBIRD; JASON                               No. 99-3269
 DANIELS; and WETLANDS                                  (D. Kansas)
 PRESERVATION ORGANIZATION                      (D.C. No. Civ-97-2132-GTV)
 and KANSAS UNIVERSITY
 ENVIRONS, Kansas unincorporated
 associations,

               Plaintiffs-Appellants,
          v.
 FEDERAL HIGHWAY
 ADMINISTRATION; DAVID
 GEIGER, in his official capacity as
 Division Administrator, Federal
 Highway Administration; MARK
 BUHLER, TOM TAUL, DEAN
 NIEDER, in their official capacities as
 County Commissioners of Douglas
 County, Kansas; and E. DEAN
 CARLSON, in his official capacity as
 Kansas Secretary of Transportation,

               Defendants-Appellees.




                           ORDER AND JUDGMENT            *




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
                                                                       (continued...)
Before KELLY , ANDERSON , and HENRY , Circuit Judges.



      Plaintiffs brought this action seeking declaratory and injunctive relief

against the defendant federal and state officials. They contended that in planning

and building a highway near Lawrence, Kansas, defendants failed to comply with

the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4347.

The district court found in favor of the plaintiffs, and enjoined the defendants

from taking any further action on the uncompleted eastern portion of the highway

project until the requirements of NEPA had been met.      See Ross v. Federal

Highway Administration , 972 F.Supp. 552, 562-63 (D. Kan. 1997). This court

affirmed that judgment in   Ross v. Federal Highway Administration     , 162 F.3d

1046 (10th Cir. 1998) [hereinafter   Ross II ]. Plaintiffs then filed a motion in the

district court for attorneys’ fees and costs pursuant to the Equal Access to Justice

Act (EAJA), 28 U.S.C. § 2412, and Fed.R.Civ.P. 54(d). The district court denied

both fees and costs. The plaintiffs now appeal. We have jurisdiction pursuant to

28 U.S.C. § 1291 and affirm the judgment of the district court.



I. BACKGROUND


      *
          (...continued)


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      As the facts of this case were described in detail in   Ross II , 162 F.3d at

1048-50, we will only briefly recount that background.

      In 1986, federal, state, and local officials began to plan the South Lawrence

Trafficway, a highway bypass which was supposed to traverse the south side of

Lawrence, Kansas. The project was jointly funded under the Federal-Aid

Highway Act, 23 U.S.C. §§ 101-189. Most of the highway was constructed and is

in use. However, before the eastern portion of the project could be built, a

neighboring educational institution (Haskell Indian Nation University), as well as

several community groups, raised objections to its location. These objections

appeared to necessitate a Supplemental Environmental Impact Statement (SEIS)

under NEPA. Instead of completing the SEIS, though, the federal and state

highway officials decided to “defederalize” the unbuilt eastern segment of the

highway.

      Although the federal government had funded a significant percentage of the

trafficway’s total coast, relatively little federal money had been spent directly on

the eastern segment, which was to be primarily paid for by the state. Apparently,

federal and state highway officials concluded that the eastern segment could

consequently be “defederalized”–i.e. redefined as an independent state project. If

the project were thus redefined, NEPA would not apply, and an SEIS would not

be required. Accordingly, in early 1997, the Federal Highway Administration


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published a notice of its intent to withdraw from both the eastern segment of the

project and the SEIS, which would allow the state to proceed with construction.

       The plaintiffs then sued, arguing that this defederalization was improper.

The district court agreed; it ruled that because all federal appropriations for the

trafficway had included the eastern segment in the trafficway’s description, the

entire project should be considered federal, even if little federal money was

actually to be spent on the eastern segment. It therefore enjoined further action

on the eastern segment, pending completion of the SEIS.       Ross , 972 F.Supp. at

562-63.

       On appeal, this court upheld the ruling of the district court, although our

rationale was slightly different. We held that by 1997, the “advanced stage” of

the bypass collaboration meant “it was simply too late for the state of Kansas to

convert the eastern segment into a local project.”   Ross II , 162 F.3d at 1052-53.

Despite the relatively small federal expenditures directly related to the eastern

segment, we wrote, “[t]he federal nature of the trafficway was so pervasive that

the Kansas authorities could not rid the project of federal involvement simply by

withdrawing the last segment of the project from federal funding.”      Id. at 1053

(citations omitted).

       The plaintiffs next filed a motion in the district court for attorneys’ fees

and costs. The district court denied attorneys’ fees against both the federal and


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state defendants, and on separate grounds also denied costs. The plaintiffs now

appeal.



II. DISCUSSION

A. Denial of Attorneys’ Fees from Federal Defendants

       Under the EAJA, a party that prevails in a civil action against the United

States is entitled to fees and other expenses, “unless the court finds that the

position of the United States was substantially justified or that special

circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). In the present

case, the district court found that the government’s litigating position was

substantially justified. We review the district court’s ruling on this question for

an abuse of discretion.   Pierce v. Underwood , 487 U.S. 552, 562 (1988);     Gilbert

v. Shalala , 45 F.3d 1391, 1394 (10th Cir. 1995).

       In order to determine whether the federal government’s position was

substantially justified, a court must ask whether that position was justified “in

substance or in the main.”   Pierce , 487 U.S. at 564. A position is substantially

justified if it has “a reasonable basis both in law and fact,” or is “justified to a

degree that could satisfy a reasonable person.”    Id. at 565. Here, the district court

found that when the government announced its intent to withdraw from the SEIS,




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its position was reasonable, based on “the case law governing in 1997.” Aplt’s

Supp. App. at 22 (District Court Order filed May 24, 1999).

      Applying this standard, the district court placed particular weight on

Village of Los Ranchos de Albuquerque v. Barnhart    , 906 F.2d 1477 (10th Cir.

1990). In Los Ranchos , the federal government had been involved in preparing an

environmental impact statement (EIS) for a proposed highway river crossing

project in New Mexico. The river crossing project was near another major federal

project, a highway interchange, but had been “segmented” from the interchange

for funding purposes.   Id. at 1482. The federal government withdrew from the

river crossing project after completing the EIS, but before construction began; the

river crossing was to be funded thereafter by non-federal authorities. Neighbors

of the river crossing who were opposed to the project then sued. They argued that

the project could not be defederalized for two reasons: because the prior federal

involvement with the EIS precluded defederalization, and because the river

crossing had been improperly separated from the federal highway interchange

project.

      This court held that both segmentation and defederalization had been

proper. We emphasized that because the federal government’s involvement had

ended very early in the project, and because the federal monetary contribution had

been a very small fraction of the river crossing’s expected cost, federal


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involvement was minimal, and defederalization was permissible.          Los Ranchos ,

906 F.2d at 1480-82. We also held that segmentation had been proper. “Even if a

local project terminates at a point of juncture with a federally funded project,” we

wrote, such a juncture would not “preclude” segmentation of the two projects.          Id.

at 1483.

       In the present action, the district court emphasized that before our decision

on the merits in this case,     Los Ranchos was the controlling case in this circuit. It

found that the Federal Highway Administration


       believed that, under its reading and interpretation of Village of Los Ranchos
       and other federal appellate court case law, the eastern segment of the [South
       Lawrence] trafficway was not a “major federal action” because it was to be
       completed without the use of further federal funds and because the FHWA no
       longer had the authority to exercise control in the planning or construction of
       the segment.

Aplt’s Supp. App. at 22. The district court concluded that under       Los Ranchos ,

there was a reasonable basis for both the government’s action and its litigating

position.

       The plaintiffs now argue that even in 1997, the law suggested

defederalization of the eastern segment would be unreasonable. Essentially, the

plaintiffs maintain that      Los Ranchos is factually distinct from the Kansas

controversy, making it valueless as precedent. They further contend that all

relevant cases other than      Los Ranchos have rejected defederalization.


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       Our earlier opinion in this case does         indeed state that “nothing in   Los

Ranchos ” supports the government’s “decision to ‘defederalize’ the eastern

segment of the South Lawrence trafficway.”             Ross II , 162 F.3d at 1053. The

present case, we found, differs “significantly” from the facts in           Los Ranchos . Id.

It also approves of the cases plaintiffs cited in support of their position, especially

Scottsdale Mall v. State of Indiana   , 549 F.2d 484 (7th Cir. 1977). In         Scottsdale

Mall , the state had attempted to defederalize a highway project in order to

circumvent NEPA. The Seventh Circuit           ruled that because there had been

significant federal involvement in all stages of the project prior to the attempted

defederalization, the attempt was improper.           Id. at 488-90. As a result, plaintiffs

urge us to find that the government’s position          was not substantially justified.

       However, under the “abuse of discretion” standard of review, we cannot

reverse the district court unless we have “a definite and firm conviction that the

lower court made a clear error of judgment or exceeded the bounds of permissible

choice in the circumstances.”     McEwen v. City of Norman , 926 F.2d 1539, 1553-

54 (10th Cir. 1991). The district court’s judgment may only be reversed for an

abuse of discretion if it appears “arbitrary, capricious, whimsical, or manifestly

unreasonable.”    FDIC v. Oldenburg , 34 F.3d 1529, 1555 (10th Cir. 1994).

       Despite the plaintiffs’ contentions and our decision in          Ross , the district

court’s conclusion was neither “whimsical” nor “manifestly unreasonable.”


                                               -8-
Although Scottsdale Mall supported the plaintiffs’ position (and raised questions

about the government’s), it was not binding authority in this circuit.       See Garcia

by Garcia v. Miera , 817 F.2d 650, 658 (10th Cir. 1987) (affirming that the

decisions of one circuit court of appeals are not binding upon another circuit). In

contrast, Los Ranchos , a case from within our circuit, addressed issues of

highway segmentation and defederalization and provided some support for the

government’s contentions.

       Here, the district court found that because     Los Ranchos appeared to be the

most relevant precedent, it was not unreasonable for the Federal Highway

Administration to rely upon that case in formulating its arguments. In other

words, in order to have a “substantially justified” litigating position, the FHWA

need not have predicted or foreseen our decision on the merits here, which

followed the reasoning of    Scottsdale Mall and distinguished Los Ranchos . This

conclusion by the district court was neither “whimsical” nor “manifestly

unreasonable.” We therefore conclude that the district court did not abuse its

discretion in denying the plaintiffs’ motion for attorneys’ fees.        1




B. Denial of Costs From All Defendants



       1
        Because we conclude Los Ranchos provides sufficient support for the
district court’s ruling, we need not address the relevance of 23 U.S.C. § 145.

                                             -9-
       Because the plaintiffs did not file a bill of costs within thirty days after the

final judgment, as required by the local court rules, the district court denied

plaintiffs their costs.   See D. Kan. Rule 54.1. Plaintiffs state that while they did

not file a bill of costs on the specific form required by the local Kansas rule, they

did submit their costs as part of an affidavit for attorneys’ fees under the EAJA.

This, they propose, “compl[ies] with the intent” of the Kansas rule. Aplt’s Br. at

24.

       We have on many occasions found that “the district court is entitled to

considerable deference in its interpretation and application of its own rules of

practice and procedure.”     Mitchell v. Maynard , 80 F.3d 1433, 1447 (10th Cir.

1996). Although we might have held differently (noting the confusion that could

have resulted from the EAJA application), under this deferential standard, it was

permissible for the district court to find that plaintiffs’ affidavit did not

sufficiently comply with the local rule requiring a bill of costs.




III. CONCLUSION

       For the foregoing reasons, the judgment of the district court is AFFIRMED.


                                            -10-
       Entered for the Court,

       Robert H. Henry
       Circuit Judge




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