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Sierra Club v. Marsh

ELR Citation: 16 ELR 20976
Nos. Nos. 84-0366B, -0388B, 639 F. Supp. 1216/24 ERC 1818/(D. Me., 07/16/1986) attorney fees awarded

The court holds that an environmental group that successfully prevented the Army Corps of Engineers from constructing a port facility and causeway on Sears Island, Maine, until an environmental impact statement (EIS) had been prepared is entitled to attorney fees under the Equal Access to Justice Act (EAJA) adjusted above the statutory cap for the increased cost of living, but that the group is not entitled to an adjustment to reflect the allegedly contingent nature of the fee arrangement. Addressing the fee application for time spent on the litigation challenging the facility's construction (Sierra I), the court holds that it is bound by the First Circuit's opinion on the merits to hold that the government's position during the litigation and in the underlying actions by the Corps and the Federal Highway Administration issuing dredge and fill permits and providing federal funds was not substantially justified. The agencies unreasonably concluded that the project would have no significant impact on the environment, since the environmental assessments prepared pursuant to the National Environmental Policy Act (NEPA) did not discuss the secondary impacts of additional industrial development on Sears Island as a result of the project's construction. The court next holds that the number of hours claimed by plaintiff's three attorneys and three law clerks for their work on the NEPA claims in the litigation are, for the most part, reasonable. The court disallows most of the time claimed for preparation of oral argument before this court, but holds that the remaining hours claimed were reasonably expended. The court also holds that the hours claimed should not be reduced for aspects of the NEPA claim on which plaintiff did not ultimately prevail, since the various NEPA arguments plaintiff raised involved a common core of facts and cannot realistically be separated into discrete issues.

The court rules that EAJA allows the statutory maximum of $75 per hour to be adjusted for an increase in the cost of living and that the lodestar adjustment may be made for expenses incurred prior to the date of EAJA's reenactment in 1985. When it reenacted the statute, Congress retained both the $75 hourly rate cap and the provision allowing for a cost of living increase. The legislative history of the 1985 amendments does not indicate a congressional intent that inflation occurring during the four prior years of EAJA should be ignored. Moreover, accepting the government's argument would mean that plaintiffs obtaining cost of living adjustments before EAJA's reenactment would be compensated at a higher rate than plaintiffs compensated under the reenacted law. The court holds that while application of the 17.8 percent increase in the consumer price index between 1981 and 1985 produces an hourly rate of $88.35, the appropriate rate for this case is $85, the rates plaintiff's attorneys would have charged for their services. In a note, the court rejects the government's argument that plaintiff's local counsel is only entitled to a $40 hourly rate, and holds that the attorney is entitled to EAJA's maximum $75 rate. Although the attorney did not do the bulk of the legal work, he performed his role as local counsel as required, and $75 is already substantially below the prevailing market rate. The court also holds, in a note, that a $25 hourly rate is reasonable for law clerks' time. The court declines to further adjust the $85 lodestar rate to account for the contingent nature of the fee arrangement plaintiff had with its counsel. Although the Supreme Court has yet to determine whether the lodestar may be increased based on the risk of loss, such an adjustment would not be appropriate here, since counsel's acceptance of this case based on an understanding that plaintiff would engage in fundraising efforts to raise the funds for attorney fees is not a true contingent fee arrangement.

Turning to plaintiff's NEPA challenge to the Coast Guard's issuance of a bridge permit pursuant to the General Bridge Act for the causeway's construction (Sierra II), the court holds that plaintiff is entitled to fees under EAJA for the time expended on the NEPA claim in addition to that expended on the General Bridge Act claim. Plaintiff's NEPA claim in Sierra II was not mooted by the First Circuit's decision on the merits in Sierra I, since the cases involved different actions by different federal agencies. The court holds that plaintiff's award should not be reduced even though there was no judicial determination that the Coast Guard had violated NEPA in not preparing an EIS prior to issuing the permit. Plaintiff succeeded on its claim, since the agency agreed to prepare an EIS as a result of the suit. The court holds, however, that plaintiff is not entitled to fees for time spent responding to Maine's appeal of this court's decision in Sierra II to the First Circuit, since the federal government did not appeal that decision. The court disallows nine of the 14 hours plaintiff's attorneys requested for time spent on oral argument before this court, and allows the same hourly rates as it allowed in the fee application in Sierra I. The court holds that EAJA authorizes compensation for plaintiff's photocopying and filing fees, but disallows postage, telephone, messenger, and travel costs.

[The decisions on the merits are published at 15 ELR 20911 and 16 ELR 20487.]

Counsel for Plaintiff
Peter L. Koff, Edward F. Lawson
Weston, Patrick, Willard & Redding
84 State St., Boston MA 02109
(617) 742-9310

Counsel for Defendants
Ralph A. Child, Ass't U.S. Attorney
1107 John W. McCormack Fed. Bldg., USPO & Cthse., Boston MA 02109
(617) 223-3181

Sylvia Sepulveda-Hambor
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5424

Counsel for Intervenor
Cabanne Howard, Ass't Attorney General
State House Station #6, Augusta ME 04333
(207) 289-3661