May 19: In the U.S. Court of Appeals, Ninth Circuits, Case No. 10-35446. Appealed from the United States District Court for the District of Alaska. The issue presented by this appeal is whether the district court abused its discretion in denying an award of attorney fees to Resurrection Bay Conservation Alliance, an Alaska nonprofit corporation, and Alaska Community Action on Toxics, an Alaska nonprofit corporation (collectively RBCA) pursuant to section 505(d) of the Clean Water Act (CWA), because RBCA came within the "special circumstances" standard first elaborated in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968) (per curiam).
The Appeals Court concluded "that the district court abused its discretion in ruling that special circumstances were demonstrated, and we remand with instructions that it award that portion of RBCA's fees and costs reasonably incurred in furtherance of the CWA's purpose."
In part, the District Court said, "At best, [RBCA] prevailed on only a small portion of their case. . . Ultimately, the City has not changed any behavior that existed prior to the lawsuit. All that was accomplished was the application for and issuance of one permit to allow activities that were legitimately taking place. . . The Court accordingly finds that this case has unique and "special circumstances" and an award of attorney fees in these circumstances would be unjust."
The Appeals Court said, "First, the district court's analysis misperceives the importance of the CWA's permit requirements and the relief obtained by RBCA. . . Second, although the CWA also forbids pollution, neither the district court nor the City has identified any basis in law for the proposition that the absence of evidence of actual pollution was dispositive. . . Third, neither the district court nor the City has identified any basis in law for the notion that a special circumstances determination can or should be supported by a finding that the City benefitted economically by failing to apply for and obtain an NPDES permit. . . Fourth, the district court's analysis focused solely on whether the City was forced to cease polluting or potentially polluting activities in which it had previously been engaged. . . The district court's perception that RBCA's victory was so insignificant as to constitute a special circumstance to deny any award of attorney fees misapprehended the role of the CWA's permit requirements in furthering the statute's purpose. . ."
RBCA sought an award of fees in the amount of $119,566.50 and costs in the amount of $4,790.80, for a total award of $124,357.30, and asks that the court award the full amount requested because it was not disputed on substantive grounds at the district court. The Appeals Court concluded, "The district court's denial of an award of attorney fees and litigation costs is vacated, and this matter is remanded to the district court with instructions to award RBCA's fees and costs that were reasonably incurred in furtherance of the Clean Water Act's purpose."
Access the complete opinion (click here). [*Water]
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