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Avoyelles Sportsmen's League v. Marsh

ELR Citation: 16 ELR 20471
Nos. No. 85-4202, 786 F.2d 631/24 ERC 1403/(5th Cir., 04/02/1986) attorney fees denied in part

In a Federal Water Pollution Control Act (FWPCA) citizen suit case arising out of a challenge to a Corps of Engineers wetland determination that resulted in two trials and an appeal on the merits, the court rules that attorney fees are not appropriate for expenses incurred either in litigating an issue on which the government finally prevailed or in a phase of the litigation in which plaintiffs were opposed only by nongovernmental parties. The court holds that plaintiffs are not entitled to fees for expenses incurred in contesting the Environmental Protection Agency's determination that 80 percent of the tract in question was a wetland within the meaning of the FWPCA. Although the district court had held during the first trial that more than 90 percent of the tract was a wetland, a panel of this court overturned the determination on appeal. A fee award against the government on this issue would be an award against the prevailing party and would run counter to the fee-shifting principles expressed by the Supreme Court in Ruckelshaus v. Sierra Club. The court next rules that plaintiffs are probably not entitled to fees for work done in connection with the second trial, which addressed the types of landclearing activities on the tract that would require an FWPCA §404 permit. The government had asked the district court to allow the Corps to exercise its primary injurisdiction, but did not contest contest this issue on appeal, apparently satisfied with the lower court's decision on the merits. The government's request for postponement of judicial review was not unreasonable and some or all of plaintiffs' demands might have been met in the administrative forum if the request had been granted. A rule allowing fees in such circumstances would encourage plaintiffs to litigate without regard to whether the administrative process was more appropriate. Further, the government's abandonment of the primary jurisdiction argument on appeal should not expose it to attorney fees liability since this would encourage the government to seek application of the primary jurisdiction argument beyond the point in the litigation at which the argument no longer makes sense. The court declines to rule on plaintiffs' rights to fees for the activities trial, however, and remands the case for the district court to consider the points raised here. It notes that should the lower court choose not to adopt the argument outlined above, the burden will be on plaintiffs to show by a preponderance of the evidence that their expenses were incurred by the government's improper resistance to plaintiffs' legitimate claims on the activities issue.

The court next holds that, regardless of the outcome in connection with the activities trial, plaintiffs are not entitled to fees from the government for expenses incurred during the appeal of the litigation. The government did not challenge any portion of the district court's decision that this court affirmed. To the extent plaintiffs prevailed on appeal, they prevailed over the private defendants, not the government. Plaintiffs' argument that they achieved what they had set out to accomplish, a framework under §404 for the regulation of clearing of bottomland hardwood wetlands, is logical but incomplete. The government is not contesting the award of attorney fees for that portion of the litigation leading up to the district court's issuance of a preliminary injunction, conceding that prior to that point it did not properly enforce the FWPCA. However, the government subsequently fulfilled the requirements imposed by the injunction regarding the determination issue, and put forth a sensible primary jurisdiction argument on the activities issue.

[Opinions from the two trials and the appeal on the merits in this case appear at 11 ELR 20315, 20321, and 13 ELR 20942. Briefs from the appeal on the merits appear at ELR PEND. LIT. 65888.]

Counsel for Plaintiffs-Appellees
James T. B. Tripp Jr.
Environmental Defense Fund, Inc.
475 Park Ave. S., New York NY 10016
(212) 686-4191

Donald R. Wilson
Gaharan, Richey & Wilson
Gaharan-Richey Bldg., Drawer G, Jena LA 71342
(318) 992-2104

Counsel for Defendants-Appellants
Maria Iizuka
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2753

Before Politz and Jones, JJ.