Need for Permit and Small Civil Penalty Did Trigger Fee Recovery.
Clean Water Act (CWA) section 505(d), 33 U.S.C. § 1365(d), allows a district court discretion to award attorney’s fees if two findings are made: (1) the free applicant was a prevailing or substantially prevailing party; and (2) a fee award is “appropriate.” Fees may not be appropriate where “special circumstances” are found. (Saint John’s Organic Farm v. Gem County Mosquito Abatement Dist., 574 F.3d 1054, 1058, 1063 (9th Cir. 2009).) The Ninth Circuit recently determined that a district judge misapplied the law regarding special circumstances to the facts of the particular case before it so that fee recovery should have been made to a prevailing plaintiff.
In Resurrection Bay Conservation Alliance v. City of Seward, Case No. 10-35446 (9th Cir. May 19, 2011) (for publication), plaintiff nonprofit corporation prevailed against City of Seward when the district court found City was required to apply for a National Pollution Discharge Elimination System permit for certain discharges into Resurrection Bay and assessed a nominal civil penalty of $1 against City. However, the district court declined to permit briefing on recovery of fees and litigation costs. The Ninth Circuit, in a prior memorandum decision, remanded upon plaintiff’s appeal to have the district court decide whether an award of fees was proper under the CWA. On remand, the district judge found that plaintiff did prevail, but denied any fee award because it was not “appropriate”–plaintiff prevailed on only a small portion of the case because the EPA only decided one permit was necessary, there was a lack of evidence of actual pollution, and City did not change any preexisting behavior.
The Ninth Circuit vacated the fee denial and remanded for some fees to be awarded to plaintiff.
Because fee awards should be the rule rather than the exception and the special circumstances standard is interpreted quite strictly, Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968) (per curiam), the Ninth Circuit could not see that “special circumstances” warranted a fee denial under the circumstances. Pollution is forbidden such that the CWA does not require for pollution to occur before allowing fee vindication through a citizens’ enforcement suit. As a result of the suit, City did change its behavior by having to submit to the permitting process for one of two locations. The insignificance of the victory was overshadowed by the salutary objectives of the CWA to restore and maintain the integrity of U.S. waters.
Plaintiff sought to recover a total of $124,357.30 in fees and costs ($119,566.50 of that being fees). The federal appeals court remanded to have the district court determine the fee amount in the first instance. Nice turnaround win for plaintiff.