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Oregon Envtl. Council v. Kunzman

Citation: 14 ELR 20762
No. No. 82-504-RE, 21 ERC 1718/(D. Or., 08/09/1984) Attorneys fees awarded for trial & appeal

After ruling for federal defendants in this pesticide suit, 12 ELR 20769, and being reversed on appeal, 13 ELR 20901, the district court awards plaintiffs attorneys fees under the Equal Access to Justice Act (EAJA), reduced because of the attorneys' failure to properly document their time. The court holds that plaintiffs are the prevailing party since they received the relief they sought: an injunction against aerial spraying of carbaryl. The court holds that the federal government has the burden of proving that its position was substantially justified, or, in other words, reasonable. The court of appeals specifically declared that the government's position was unreasonable, and the court holds that the government's position at trial and on appeal was not substantially justified. Because plaintiffs did not keep proper time records, as required by EAJA § 2412(d)(1)(B), the court reduces the requested award by 10 percent, its estimate of the duplication of efforts by plaintiffs' attorneys. The court does not reduce the award for time spent on unsuccessful alternative claims against the federal government. It does reduce the claim by an additional 25 percent to reflect time spent on claims against non-federal defendants. Finally, the court awards $100 per hour instead of the normal EAJA § 2412(d)(2)(A) maximum of $75 per hour, due to the limited availability of qualified environmental attorneys and the length of time the attorneys have waited for compensation.

Counsel for Plaintiffs
Michael D. Axline, John E. Bonine
Pacific Northwest Resources Clinic
U. of Oregon Law Center, Eugene OR 97403
(503) 686-3823

Larry N. Sokol
Jolles, Sokol & Bernstein
721 SW Oak St., Portland OR 97205
(503) 228-6474

Counsel for Defendants
Thomas C. Lee, Ass't U.S. Attorney
312 U.S. Cthse., 620 Main St., Portland OR 97205
(503) 221-2101
Dorothy R. Burakreis
Land and Natural Resources Division, Department of Justice, Washington DC 20530
(202) 633-2769