The Ninth Circuit reads very narrowly the circumstances under which attorney's fees will not be awarded to a prevailing party in CWA litigation

The Ninth Circuit reads very narrowly the circumstances under which attorney's fees will not be awarded to a prevailing party in CWA litigation

The Resurrection Bay Conservation Alliance sued the City of Seward, Alaska, for violation of the CWA in discharging pollutants without an NPDES permit from both the small boat harbor and the industrial park. About 9 months later, both parties filed MSJ; the District Court granted plaintiff's motion in part and denied defendant's motion. The District Court ordered the City to apply for an NPDES permit, and that each party was to bear its own attorney's fees and costs. While the case was pending on appeal, EPA inspected the site and concluded that an NPDES permit was not required. The 9th Cir. then remanded the case with instructions to the District Court to determine if RBCA was the prevailing party and if the District Court should vacate its ruling that an NPDES permit was required. The District Court vacated its ruling and determined that RBCA was the prevailing party, but that attorney's fees should not be awarded because of "special circumstances" as the District Court understood the standard set forth in Saint John's Organic Farm v. Gem County Mosquito Abatement District, 574 F.3d 1054 (9th Cir. 2009). RBCA appealed.

Boat Harbor, Seward, Alaska

In Resurrection Bay Conservation Alliance v. City of Seward, 2011 U.S. App. LEXIS 10147 (9th Cir. 5/19/11), the Court noted that the only issue before it was whether the District Court applied the "special circumstances" rule appropriately. The Court noted that the award of attorney fees was to be the rule rather than the exception, and denial was rare indeed; the Court also noted that the good faith belief of defendant that it was not violating the law was not a special circumstance.

The Court of Appeals noted that the District Court identified the following "special circumstances" that it believed rendered the requested attorney fee award unjust: (1) RBCA was not granted the full relief it sought; (2) there was a lack of evidence of actual pollution; (3) there was a lack of evidence of an economic benefit by the City; and, (4) the City had not changed any behavior that existed prior to the lawsuit because the City was merely required to apply for, and be issued, a permit that permitted it to engage in activities in which it was already engaged. The Court of Appeals concluded that these factors are not special circumstances that would preclude an award of attorney fees.

The Court noted that the permit process requires extensive information about the site and the CWA's objective is to minimize pollution, which is done in the course of the permitting process. Further, the absence of pollution is not dispositive of the issue. Additionally, there is no requirement that the City has to benefit economically by failing to apply for and obtain an NPDES permit. Finally, the fact that the District Court ordered the City to obtain an NPDES permit effected a change in behavior. The Court noted that the District Court failed to ascertain that one of the purposes of the CWA is to maintain the chemical, physical, and biological integrity of the Nation's waters.

The case was then remanded to the District Court to determine the reasonableness of the fee and cost request of RBCA.

Lexis.com subscribers can access the Lexis enhanced version of the Resurrection Bay Conservation Alliance v. City of Seward, 2011 U.S. App. LEXIS 10147 (9th Cir. 5/19/11) decision with summary, headnotes, and Shepard's.

Non subscribers can access the free unenhanced version of the Resurrection Bay Conservation Alliance v. City of Seward, 2011 U.S. App. LEXIS 10147 (9th Cir. 5/19/11) decision available from lexisONE Free Case law.

Lexis.com subscribers can access the Lexis enhanced version of the Saint John's Organic Farm v. Gem County Mosquito Abatement District, 574 F.3d 1054 (9th Cir. 2009) decision with summary, headnotes, and Shepard's.

Non subscribers can access the free unenhanced version of the Saint John's Organic Farm v. Gem County Mosquito Abatement District, 574 F.3d 1054 (9th Cir. 2009) decision available from lexisONE Free Case law.

Lexis.com subscribers can learn more at Citizen Suits, 4-18 Environmental Law Practice Guide § 18.16 (Matthew Bender), and at Attorneys' Fees Under Citizen Suit Provisions, 6-14 Treatise on Environmental Law § 14.02.

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