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Dunn v. United States

ELR Citation: 18 ELR 20969
Nos. No. 86-3763, 842 F.2d 1420/(3d Cir., 03/23/1988) District court decision vacated & remanded

The court holds that plaintiffs have not shown that they were prevailing parties under the Equal Access to Justice Act in their action alleging that the Department of Energy (DOE) failed to comply with the public participation requirements of the Uranium Mill Tailings Radiation Control Act at an inactive uranium ore processing mill in Canonsburg, Pennsylvania. The litigation resulted in a consent decree in which DOE agreed to hold public meetings to explain upcoming cleanup activities at the site. The court holds that the district court's finding that the lawsuit was necessary to compel the government to comply with the public participation provisions of the law was clearly erroneous. Plaintiffs did not introduce any evidence on the issue and did not dispute the evidence submitted by the government of substantial public participation activity prior to the filing of the suit. Despite its serious reservations that plaintiffs can show a causal relationship between their suit and the government's public participation activities, the court remands the case so the district court can make adequate findings of fact.

[A previous case in this litigation is published at 16 ELR 20462.]

Counsel for Appellees
Jon Hogue
Mansmann, Cindrich & Titus
Suite 1510, Two Chatham Ctr., Pittsburgh PA 15219
(412) 642-2000

Counsel for Appellants
David Zugschwerdt
Land and Natural Resources Division
Appellate Section, Rm. 2339
Department of Justice, Washington DC 20530
(202) 633-2686

Before Higginbotham and Hunter, JJ.