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United States v. San Diego, City of

ELR Citation: 28 ELR 21584
Nos. Civ. 88-1101-B POR, 18 F.2d 1090/47 ERC 1119/(S.D. Cal., 06/30/1998) Ruling on attorney fees

The court awards an environmental group $781,306 in attorney fees pursuant to Federal Water Pollution Control Act (FWPCA) §505(d). The group intervened to block the entry of a proposed consent decree in an FWPCA enforcement proceeding brought by the United States and a state against a city for chronic FWPCA violations. The court first holds that the group is a prevailing party. The group succeeded on significant issues and achieved the primary objective of its intervention—the rejection of the consent decree. The court holds, however, that it is only appropriate to compensate the group for work on the issues on which it prevailed, rather than compensate the group with a blanket fee award.

The court then holds that the group is entitled to fees for its work on physical-chemical alternative sewage treatment methods. The physical-chemical treatment contributed to the overall improvement of the plant and its compliance with waiver permit standards. The court next holds that the group is not entitled to more fees for its work on water reclamation and reuse issues. The group already was awarded fees for these issues and has not worked on the issues since the fee award. The group is also not entitled to fees for its work in disinfection and ocean compliance. The court rejected the group's suggestion for disinfection as a way of complying with California's ocean plan and implemented the city's outfall extension proposal. The group, however, is entitled to fees for its work on water conservation issues. The court next awarded the group fees for lobbying for the Oil Pollution Reduction Act. The lobbying efforts were necessitated by the litigation and were essential to reaching a viable settlement. The court also awards the group fees for participating in EPA waiver permit proceedings that were inextricably tied to resolving the case, and participation in the proceedings was necessary to advocate the prevailing parties' litigation-specific interests. The court further holds that the group will be compensated for work on fee petitions and appeals to the extent that the group prevailed. The court then holds that as to the issues on which the group will be awarded fees, the hourly rate and number of hours claimed by the group are reasonable. The group, however, is not entitled to a fee enhancement because it failed to show why the rate used in calculating the lodestar does not reflect a reasonable fee.

The court next holds that the group shall be awarded $781,306. In allocating the liability, the court holds that the city, the state, and the United States shall be jointly and severally liable for 25 percent of the fee award. The United States shall not be liable for more than 12.5 percent of the total fee award, and the city shall be solely liable for 75 percent of the fee award.

Counsel for Plaintiff
Thomas Stahl, Ass't U.S. Attorney
U.S. Attorney's Office
880 Front St., Rm. 6293, San Diego CA 92101
(619) 557-5610

Counsel for Defendants
James J. Dragna
McCutchen, Doyle, Brown & Enersen
355 S. Grand Ave., Ste. 4400, Los Angeles CA 90071
(213) 680-6400