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National Wildlife Fed'n v. Hanson

ELR Citation: 18 ELR 20008
Nos. No. 83-1288-CIV-5, (E.D.N.C., 10/01/1987) Attorney fees awarded

The court holds that plaintiffs are entitled to attorney fees under §505(d) of the Federal Water Pollution Control Act (FWPCA) for a challenge to a Corps of Engineers decision that certain lands were not wetlands under FWPCA §404. On the merits, the court held, 16 ELR 20388, that the Corps wrongfully declined jurisdiction in not using its scientific expertise to make an accurate jurisdictional determination. The court first holds that it is inappropriate, based on the facts in this case, to award fees against two private parties. The clearing and farming activities carried on by the first private defendant were done with the express approval of the Corps. The position taken by the second private defendant, that the Corps' decision was not arbitrary and capricious, was not clearly unreasonable, and the defendant cooperated with the Corps during the permit process. The Corps is also a party to this action and available for the payment of fees. The court then holds that it is appropriate to award fees against the government under FWPCA §505(d). The court holds that this action qualifies as a citizen suit under §505(a)(2) since the federal defendants had a non-discretionary duty to make a proper wetlands determination and to prohibit any unlawful dredge and fill activities. The court holds that plaintiffs prevailed on their challenge to the Corps' decision that the lands were not wetlands, even though the court remanded the case to the Corps for the agency to make the wetlands determination rather than the court making the determination itself. The court had determined that the Corps' decision was arbitrary and capricious, which is sufficient success for a party to be considered "prevailing" for the purpose of attorneys fees. The court holds that plaintiffs also prevailed on their second count, in which they sought restoration of wetlands that had been cleared and a declaration that the Corps and the private landowner had violated the FWPCA. A consent decree eventually settled this claim, and provided for the landowner's abandonment of its FWPCA §404 application, the dedication of conservation easements over some of the land, and the donation of a portion of the tract to the United States. Even if, as defendants contend, negotiations for these gifts were under way when the lawsuit was filed, the suit served as an impetus for the gifts and was a major factor in the landowner's abandonment of the permit application.

The court holds that the hours claimed by plaintiffs' counsel, some 2,600 hours among four attorneys and several law clerks, are reasonable. Plaintiffs faced the burden of having to search through the Corps' extensive records. Moreover, plaintiffs made every effort to be conservative in the number of hours claimed, as demonstrated by their elimination of over 391 hours, their practice of not counting short tasks, and not asking for reimbursement for work done by local counsel. The court holds that plaintiffs are entitled to compensation for time spent on preparation of the fee petition. The court then holds that the attorneys should be compensated at the top rates prevailing in the Washington, D.C., area for attorneys of comparable experience, and awards rates ranging from $115-215 per hour for the four attorneys and $45 per hour for the clerks. The court awards costs for filing fees, telephone calls, documents, postage, travel, and copying expenses. The court also allows reimbursement for the costs of two experts.

Counsel for Plaintiffs
Derb S. Carter
National Wildlife Federation
P.O. Box 10626, Raleigh NC 27605
(919) 833-1923

S. Henri Johnson
P.O. Box 1005, New Bern NC 28560
(919) 633-4848

Counsel for Defendants
H. Robert Showers, Ass't U.S. Attorney
P.O. Box 26897, Raleigh NC 27611
(919) 755-4530

Jean A. Kingrey
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2716