Ninth Circuit notes inconsistent rulings by other Circuits in awarding attorney's fees in CWA cases, and holds that they can only be rarely denied to a prevailing party

Ninth Circuit notes inconsistent rulings by other Circuits in awarding attorney's fees in CWA cases, and holds that they can only be rarely denied to a prevailing party

In a prior post (5/29/08) regarding St. John's Organic Farm v. Gem County Mosquito Abatement Dist., 2007 U.S. Dist. LEXIS 63224 (D.ID: 2007), it was noted that the District Court held that, because of the unique wording of the CWA attorney’s fees provision, the CWA did not recognize the catalyst theory for attorney’s fees. The 9th Circuit has now reversed.
 
In St. John's Organic Farm v. Gem County Mosquito Abatement Dist., 2009 U.S. App. LEXIS 17568 (9th Cir. 2009) [note the original opinion was amended in an irrelevant manner], the Court held that the District Court erred in finding that plaintiffs were not "prevailing parties" for purposes of § 1365(d). The settlement agreement between the parties met the three conditions necessary to make plaintiffs prevailing parties for attorney’s fees purposes because the terms of the agreement were judicially enforceable, the agreement effected a material alteration in the legal relationship between the parties, and plaintiffs received actual relief on the merits of their claim.
 
The Court of Appeals took the opportunity to articulate its standard for determining whether a fee award was "appropriate" under § 1365(d) so the District Court could apply the correct standard on remand. The Court noted that the other Circuits have not agreed on a uniform standard for determining "appropriateness" for a prevailing plaintiff under 33 U.S.C. § 1365(d). The First Circuit has stated that District Courts have wide discretion to determine the appropriateness of fees under the Clean Water Act (CWA), but it has not articulated a standard to guide the exercise of this discretion. The Third Circuit was seen to have effectively read "appropriate" out of the statute, holding that the CWA places no restriction on the award other than that the party entitled to the award be prevailing or substantially prevailing. The Fourth and Fifth Circuits have held that fees are appropriate whenever a prevailing party's suit has served the public interest or advanced the goals of the statute. The Eleventh Circuit has held that good cause is needed to deny attorney's fees to a prevailing party.
 
The Ninth Circuit did not adopt any of these standards and instead held that the "special circumstances" standard first elaborated by the U.S. Supreme Court in Newman v. Piggie Park Enterprises is the proper standard for determining whether an award of attorney's fees to a prevailing plaintiff is "appropriate" under § 1365(d).
 
The Court thus stated the following standard: § 1365(d) attorney's fees could be denied to prevailing parties only where there were "special circumstances." Such circumstances are seen to be narrow and rare. Defendants' good faith belief that they were following the law did not qualify as a special circumstance.