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Save Our Sound Fisheries Ass'n v. Callaway

Citation: 7 ELR 20488
No. No. 5297, 429 F. Supp. 1136/10 ERC 1907/(D.R.I., 02/23/1977) Attorneys fees award

Plaintiff is entitled to an attorney fees award under the Federal Water Pollution Control Act (FWPCA) and the Marine Protection, Research and Sanctuaries Act (MPRSA) because it constructively satisfied the notice requirements of the citizen suits provisions, which also allow attorney fees awards. In earlier litigation, 4 ELR 20437, the court enjoined the ocean dumping of 50,000 cubic yards of material dredged from the Providence River. Jurisdiction in that case was grounded on the Administrative Procedure Act rather than on the FWPCA or MPRSA. Although plaintiff cannot allege a statutory violation that can be remedied under the statutes' citizen suits provisions, it nevertheless constructively satisfied the provisions. Plaintiff gave notice to defendants as early as 1972 of its concern about the dumping, and defendants' violation of the FWPCA and MPRSA permit procedures, which require notice and comment, effectively foreclosed a citizen suit by plaintiff. A statutory attorney fees award is appropriate absent bad faith on plaintiff's part. The fee is to be competitive with the prevailing rate in the community.

Counsel for Plaintiff
Ernest C. Torres
Saunders & Torres
925 Main St., East Greenwich RI 02818
(401) 885-2800

John R. Allen
Hinckley, Allen, Salisbury & Parsons
2200 Industrial Bank Bldg., Providence RI 02903
(401) 274-2000

Counsel for Defendants
Everett Sammartino, Ass't U.S. Attorney
P.O. Box 1401, Providence RI 02901
(401) 528-4311

Lloyd S. Guerci
Department of Justice, Washington DC 20530
(202) 729-2717