Resurrection Bay Conservation v. City of Seward, Alaska

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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Industrial Communications and v. Slade

May 19: In the U.S. Court of Appeals, First Circuit, Case No. 10-1738. Appealed from the District Court of New Hampshire, Concord. David and Marilyn Slade own property in the Town of Alton, New Hampshire (Alton or the Town). Industrial Communications and Electronics, Inc. (Industrial Communications), aims to construct a cell phone tower in Alton for two wireless companies. Claiming that only one site was suitable, Industrial Communications filed an application in September 2005 to construct the tower at 486 East Side Drive in Alton. The site is "200 feet or less" from the border of Slades' property and according to the Slades, the tower would "stand[] prominently in the line of sight of the panoramic view . . . of Lake Winnipesaukee and the surrounding mountains" that the Slades currently enjoy from their property. The Slades consider the property's "stunning views" to be its "most recognizable asset," and they "colorably assert" that the construction will cause them economic as well as aesthetic harm by diminishing the property's value.

 

    The Town's zoning ordinance limits cell phone towers to ten feet above the average tree canopy in a particular area; according to calculations by the Town's forester, Industrial Communications' tower would thus be limited to seventy-one feet above ground level. Because Industrial Communications determined that the tower needed to be 120 feet above ground level to be effective, it applied to the Town's Zoning Board of Adjustment (Board) for a variance to construct the tower. Ultimately, the Board denied the variance, finding in its final written decision that Industrial Communications failed to meet the criteria for a variance under New Hampshire law.

 

    When the Federal action was brought, the Town initially defended the case. The Slades intervened with the permission of the court and then stood silent as the Town handled the defense. The Town eventually filed an "Agreement for Entry of Consent Decree" to settle the case, to vacate the Board's decision denying a variance and to permit a one-hundred-foot tower. The district court concluded that the Slades did not raise any claims a federal court was empowered to address and, refusing to consider the Slades' challenge to the Town's authority to act for the Board, entered as a judgment (with a minor modification) the consent decree proposed by the plaintiffs. The Slades now appeal and the issues.

   

    The Appeals Court vacated and remanded the district court decision and said, "Nothing we have said is intended to suggest that a district court, faced with a proposed consent decree and no opposition from anyone, is obliged to conduct hearings and make supported findings. It is one thing to resolve a case by agreement of all parties; it is another when a party to the case is protesting and the court's authority to wipe out the rights of the protesting party depends on findings that the court has not made. Industrial Communications claims be entitled to relief under the Act: all it now needs to do is to prove it."

 

    Access the complete opinion (click here). [*Land, *CA1]

 

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