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Loggerhead Turtle v. County Council of Volusia County, Fla.

Citation: 33 ELR 20057
No. No. 00-12164, 307 F.3d 1318/(11th Cir., 09/30/2002) Award of attorneys fees aff'd

The court holds that the U.S. Supreme Court's decision in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), did not prohibit the use of the catalyst test as a basis for awarding attorney fees and costs under the Endangered Species Act (ESA). An environmental group brought a suit against a county alleging that the county was taking sea turtles in violation of the ESA. During the course of the litigation, the county voluntarily adopted ordinances that provided for increased protection of sea turtles. Although the environmental group did not receive the relief it sought from the district court, the court awarded the group attorney fees under the theory that the group's suit was the catalyst for the improved protection of sea turtles. While most federal statutes reserve the award of attorney fees for the prevailing party, the ESA allows courts to award costs of litigation to any party "whenever the court determines such award is appropriate." The county appealed the court's award of attorney fees, arguing that the catalyst theory on which the district court relied in awarding fees to the environmental group was invalidated by the Supreme Court's decision in Buckhannon. In that decision, the Court held that the catalyst test is not a permissible basis for the award of attorneys fees under two "prevailing party" statutes at issue in that case. The court first holds that the Supreme Court's decision in Buckhannon did not invalidate the use of the catalyst test as a basis for awarding attorney fees under the ESA. There is unambiguous evidence that the U.S. Congress intended the "whenever . . . appropriate" fee provisions of the Clean Air Act and the Clean Water Act to allow fee awards to plaintiffs who do not obtain court-ordered relief but whose suit has a positive catalytic effect, and it is likely that Congress intended the identical "whenever . . . appropriate" language of the ESA to have the same effect. Additionally, the Supreme Court's opinion in Buckhannon made no reference to the "whenever . . . appropriate" class of fee-shifting statutes. Further, the policy considerations discussed in Buckhannon—that a mischievous defendant could avoid liability for attorney fees by voluntarily changing conduct--is inapplicable in the context of the ESA where only equitable relief is available. Because the district court's finding that the environmental group's suit had a catalytic effect was not clearly erroneous, the court affirms the award of attorney fees to the environmental group.

[Prior decisions in this litigation are digested at 28 ELR 21546 and 30 ELR 20621.]

Counsel for Plaintiffs
Leslie Blackner
Law Offices of Leslie Blackner
123 Australian Ave., Palm Beach FL 33480
(561) 659-5754

Counsel for Defendants
Jeffrey D. Keiner
Gray, Harris & Robinson
201 E. Pine St., Ste. 1200, Orlando FL 32802
(407) 843-8880