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Resurrection Bay Conservation Alliance v. City of Seward

ELR Citation: 41 ELR 20187
Nos. No. 10-35446, (9th Cir. , 05/19/2011)

The Ninth Circuit reversed a lower court decision denying the award of attorney fees to an environmental group in their lawsuit against a town for discharging toxic pollutants into a bay in violation of the CWA. In that case, the court held that the town must apply for an NPDES permit for its harbor and ordered it to pay a nominal civil penalty of $1. When the town applied for an NPDES permit, EPA determined that a permit was unnecessary because it did not observe any industrial activity at the site. The court then vacated that portion of its earlier decision. As for attorneys fees, it held that even though the group was a prevailing party, "special circumstances" existed making it unjust for the town to have to pay the group's attorney fees. In so finding, it relied on the fact that the group was not granted the full relief it sought, there was a lack of evidence of actual pollution, there was a lack of evidence of financial benefit by the town, and the town has not changed its behavior as a result of the litigation. But these factors are not special circumstances that would preclude an award of attorney fees. The lower court's perception that the group's victory was so insignificant as to constitute a special circumstance to deny any award of attorney fees fails to recognize the role of the permit requirements in furthering the CWA's purpose.