Friday, July 17, 2009

St. John's Organic Farm v. Gem County Mosquito Abatement

Jul 16: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35797. Plaintiffs Saint John’s Organic Farm and Peter Dill (collectively, Dill) filed suit under the citizen-suit provisions of the Clean Water Act (CWA) against the Gem County Mosquito Abatement District and Gem County (collectively, GCMAD). Dill alleged that GCMAD’s discharges of pesticides directly into the waters of the United States without a National Pollutant Discharge Elimination System (NPDES) permit violated the CWA. Dill and GCMAD settled the suit.

The Settlement Agreement (Agreement) limited GCMAD’s pesticide spraying in several ways and provided that an application for “costs of litigation (including reasonable attorney and expert witness fees)” under 33 U.S.C. § 1365(d) could be made to the district court. The district court denied Dill’s attorney’s fees application, holding under § 1365(d) that Dill was not a “prevailing or substantially prevailing party” and, in the alternative, that it was not “appropriate” to grant fees to Dill.

The Appeals Court reversed the district court decision holding "that Dill was a prevailing party under § 1365(d)." The case was remanded to the district court to consider whether fees are appropriate under the standard articulated in this opinion. In a separate concurring opinion one of the Justices explains, "we employ 'a two-pronged test to determine whether special circumstances exist to justify denying attorney’s fees.' . . .This test requires a showing whether (1) 'awarding the attorney’s fees would further the purposes' of the statute, and (2) 'the balance of equities favors or disfavors the denial of fees.'"

The Justice said further, ". . .the policy implications of today’s holding concern me. Courts should not be interpreting attorney’s fee requirements in such a way as to discourage settlement. If today’s holding is read too literally, I believe there is a disincentive for parties in environmental litigation to negotiate a settlement."

Access the complete opinion (click here).