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Conservation Law Found. of New England v. Secretary of the Interior

ELR Citation: 16 ELR 20722
Nos. No. 85-1860, 790 F.2d 965/24 ERC 1731/(1st Cir., 05/05/1986) Attorney fees award aff'd in part, rev'd in part

The court holds that an environmental group that sued to enjoin a proposed outer continental shelf oil and gas lease sale off Georges Bank is entitled to attorney fees under the Outer Continental Shelf Lands Act (OCSLA) and the National Environmental Policy Act (NEPA) even though the district court dismissed the case as moot after the Secretary of the Interior cancelled the sale due to a lack of bidders and a decision by the International Court of Justice that the tracts belonged to Canada. The court initially rules that the "appropriate" standard for attorney fees requires that the requesting party achieve notable progress on an issue of substance although complete achievement is not necessary. The court rules that it may be appropriate under the Endangered Species Act (ESA) and the OCSLA to award fees to a party obtaining a preliminary injunction where the court's findings and rulings come close to the relief sought or the party achieves some related success. Here, appellee arguably obtained the practical result it sought when the Secretary agreed to abandon the administrative record for the lease sale as a condition to have the case dismissed as moot.

The court holds that appellee is not entitled to fees for its activities in support of its ESA claim, which the district court did not reach. The court next holds that appellee may receive fees for work on its claim that the Secretary violated OCSLA §19, which requires the Secretary to consider the recommendations of governors of affected states. Although appellee could not seek relief under §19 on its own behalf, the Secretary's duties under §19 are part of the larger scheme of the OCSLA to ensure that a range of interests will be heard and considered. The court rules that OCSLA §23, the citizen suit provision, is an umbrella provision under which all related challenges may be raised and a party that prevails on any element of such an action is entitled to fees.

The court next rejects the Secretary's argument that appellee prevailed only on its NEPA claims and its fees must be limited accordingly. The court holds that appellee's NEPA and OCSLA claims were so interrelated that success on one supports an award of fees for both. Finally, the court finds that the district court's explanation of its decision to increase the lodestar by 10 percent is inadequate and directs the district court to reconsider this upward adjustment on remand.

Counsel for Appellants
Albert M. Ferlo Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2774

Counsel for Appellee
J. Cleve Livingston, Laurie E. Kermish
Conservation Law Found. of New England, Inc.
3 Joy St., Boston MA 02108
(617) 742-2540

Before COFFIN, ALDRICH, and BOWNES, Circuit Judges.