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18 ELR 20008 | Environmental Law Reporter | copyright © 1988 | All rights reserved National Wildlife Federation v. HansonNo. 83-1288-CIV-5 (E.D.N.C. October 1, 1987)The court holds that plaintiffs are entitled to attorneys fees under § 505(d) of the Federal Water Pollution Control Act (FWPCA) for a challenge to a Corps of Engineers decision that certain lands were not wetlands under FWPCA § 404. On the merits, the court held, 16 ELR 20388, that the Corps wrongfully declined jurisdiction in not using its scientific expertise to make an accurate jurisdictional determination. The court first holds that it is inappropriate, based on the facts in this case, to award fees against two private parties. The clearing and farming activities carried on by the first private defendant were done with the express approval of the Corps. The position taken by the second private defendant, that the Corps' decision was not arbitrary and capricious, was not clearly unreasonable, and the defendant cooperated with the Corps during the permit process. The Corps is also a party to this action and available for the payment of fees. The court then holds that it is appropriate to award fees against the government under FWPCA § 505(d). The court holds that this action qualifies as a citizen suit under § 505(a)(2) since the federal defendants had a nondiscretionary duty to make a proper wetlands determination and to prohibit any unlawful dredge and fill activities. The court holds that plaintiffs prevailed on their challenge to the Corps' decision that the lands were not wetlands, even though the court remanded the case to the Corps for the agency to make the wetlands determination rather than the court making the determination itself. The court had determined that the Corps' decision was arbitrary and capricious, which is sufficient success for a party to be considered "prevailing" for the purpose of attorneys fees. The court holds that plaintiffs also prevailed on their second count, in which they sought restoration of wetlands that had been cleared and a declaration that the Corps and the private landowner had violated the FWPCA. A consent decree eventually settled this claim, and provided for the landowner's abandonment of its FWPCA § 404 application, the dedication of conservation easements over some of the land, and the donation of a portion of the tract to the United States. Even if, as defendants contend, negotiations for these gifts were under way when the lawsuit was filed, the suit served as an impetus for the gifts and was a major factor in the landowner's abandonment of the permit application. The court holds that the hours claimed by plaintiffs' counsel, some 2600 hours among four attorneys and several law clerks, are reasonable. Plaintiffs faced the burden of having to search through the Corps' extensive records. Moreover, plaintiffs made every effort to be conservative in the number of hours claimed, as demonstrated by their elimination of over 391 hours, their practice of not counting short tasks, and not asking for reimbursement for work done by local counsel. The court holds that plaintiffs are entitled to compensation for time spent on preparation of the fee petition. The court then holds that the attorneys should be compensated at the top rates prevailing in the Washington, D.C., area for attorneys of comparable experience, and awards rates ranging from $115-215 per hour for the four attorneys and $45 per hour for the clerks. The court awards costs for filing fees, telephone calls, documents, postage, travel, and copying expenses. The court also allows reimbursement for the costs of two experts. Counsel for Plaintiffs S. Henri Johnson Counsel for Defendants Jean A. Kingrey Britt, J.: This matter is before the court on petition by plaintiffs for an award of costs and attorneys' fees pursuant to section 505(d) of the Clean Water Act (CWA), 33 U.S.C. § 1365(d), and the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A). Plaintiffs rely primarily on the CWA and allege the EAJA only as an alternative. All parties have fully briefed the matter, and it is now ripe for decision. As originally cast the suit involved two tracts of land, referred to as Tracts I and II, and covered by separate but like-numbered counts of the complaint; i.e., Count 1 dealt with Tract I and Count 2 with Tract II. Count 1 challenged a decision by the United States Army Corps of Engineers (Corps) that certain lands in Eastern North Carolina were not "wetlands" under section 404 of the Clean Water Act (CWA). 33 U.S.C. §§ 1365 & 1344. Count 2 alleged that dredged and fill material was being unlawfully discharged on approximately 4,000 acres of a 23,000-acre wetland area, also in violation of the CWA. Plaintiffs are National Wildlife Federation, Environmental Policy Institute, North Carolina Wildlife Federation, Pungo River Association, Stumpy Point Civic Club, the Pamlico-Tar River Foundation, Conservation Council of North Carolina, Inc., and North Carolina Fisheries Association, Inc. As originally cast, the defendants were Colonel Wayne Hanson, Wilmington District Engineer; John Marsh, Secretary of the Army; William R. Gianelli, Assistant Secretary of the Army; Lieutenant General Joseph K. Bratton, Chief of the Corps of Engineers; William D. Ruckelshaus, Administrator of the Environmental Protection Agency (EPA); and, Charles R. Jeter, Regional Administrator of the EPA, all sued in their official capacities (federal defendants).1 An amended complaint filed on 7 December 1983 named Prulean Farms, Inc. (Prulean), as an additional defendant. Peat Methanol Associates (PMA) and First Colony Farms (FCF) were permitted to intervene as defendants.2 On 19 March 1984 a consent decree was entered among the parties involved in Count 2 disposing of that count and leaving only Count 1 to be determined by the court.3 Ruling on cross motions for summary judgment with regard to Count 1, the court, on 20 December 1985, held that the determination by the Corps was arbitrary and capricious and granted plaintiffs the relief they sought.4 The intervenor-defendant FCF and its parent corporation, McLean Industries, Inc., have filed a petition in bankruptcy under Chapter 11 of the Bankruptcy Code. Upon receiving notice of that fact, the court directed the parties to submit additional briefs on the effect of that petition and the automatic stay provisions of the Bankruptcy Code, on the fee petition. All parties have responded and agree5 that, because of the automatic stay provision, this petition cannot proceed as to FCF. 11 U.S.C. § 362(a). The court will, therefore, decide the petition on its merits as to those parties who remain. Prulean and PMA contend that it is not appropriate to award plaintiffs any fees or costs against them inasmuch as they are private, as opposed to governmental, parties. In addition, each of them contends [18 ELR 20009] that under the facts of this case they should not be compelled to pay any part of the fees which might be awarded to the plaintiffs. The court will address the latter contention first. A. Prulean. The land involved in Count 2 was owned by Prulean. As indicated, Prulean was added as a party defendant by the amended complaint filed on 7 December 1983. On 19 March 1984 a consent decree was entered disposing of Count 2. Thus, Prulean was a party for slightly over three months. In Count 2 plaintiffs sought a determination by the court that Prulean's farming activities on Tract II required an individual section 404 permit from the Corps. However, the clearing and farming activities carried on by Prulean on Tract II were done with the express approval of the Corps. Since Prulean did only that which it was permitted to do by the Corps and since the Corps is a party to this action and available for the payment of such fees and costs as the court may order, the court feels that it would be unfair to tax any part of those fees and costs against Prulean. B. PMA. At the time this action was instituted PMA was proposing to construct and operate a peat-to-methanol fuel plant on a part of Tract I.6 PMA was depending on a grant from the Synthetic Fuels Corporation for the funding necessary to complete its project, but the application was turned down. PMA has been dissolved and is no longer in existence. PMA filed a motion for summary judgment in January 1984. In February 1984 it learned that its funding request had been denied. Since then PMA has not actively participated in the case7 other than in filing briefs in opposition to the fee petition. In Count 1 the plaintiffs contested the decision of the Corps that Tract I was not a wetland. PMA argued that the decision of the Corps, based on a lengthy record, was not arbitrary and capricious. The court cannot say that that position was not reasonable. In addition, as pointed out in its memorandum opinion, the court recognizes that PMA not only cooperated with the Corps in providing all information requested but also ". . . voluntarily commissioned numerous studies to assess the environmental impacts of the peat mining operations, even though these studies were not required by law."8 The court therefore feels that it would be unfair to require PMA to contribute to the payment of any fees or costs, especially since the Corps, whose decision led to this lawsuit, is a party to the action. Having determined that neither Prulean nor PMA should be required to pay any part of the fees or costs which might be awarded to plaintiffs in this case based on the peculiar facts of the case, the court does not reach the question of whether private parties may be compelled to pay attorneys' fees under section 505(b). The federal defendants contend that plaintiffs are not entitled to attorneys' fees against them under the provisions of 33 U.S.C. § 1365(d). That section provides: The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. . . . This action was brought under subsection (a) of the same statute (33 U.S.C. § 1365) which provides: (a) . . . any citizen may commence a civil action on his own behalf — (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.9 Defendants argue that this action does not qualify as a citizen suit under section 1365(a)(2) because it challenges the exercise of discretion by the Army Corps of Engineers and not the failure by anyone to carry out a mandatory duty. Since the court limited its review of the Corps' action to a review of the administrative record, the argument is that there was no failure by the Corps to perform any mandatory duty as the Corps made a determination with regard to its jurisdiction. The court is not persuaded by the defendants' contentions. It is quite clear that both the Corps of Engineers and the Administrator of the EPA are responsible for the issuance of permits under the CWA and enforcement of their terms. 33 U.S.C. §§ 1342 & 1344. Indeed, EPA has the nondiscretionary duty to prohibit the discharge of unpermitted pollutants. 33 U.S.C. § 1319. The Corps has that same duty with regard to dredged or fill material. 33 U.S.C. § 1344(f)(2). Even though the court remanded this matter to the Corps of Engineers for a proper wetlands determination rather than attempting to make such a determination itself, the court also enjoined the private defendants from engaging in any dredge and fill activities until such time as a proper wetlands determination is made and all necessary permits obtained. The federal defendants, having had a duty to make a proper wetlands determination and to prohibit any unlawful dredge and fill activities in the event any of the lands described in the complaintwere determined to be wetlands, had obviously failed to carry out a duty under this chapter. Thus, this action comes within the terms of 33 U.S.C. § 1365(a)(2). The federal defendants contend that plaintiffs have not prevailed on Count 1. The argument is that since the court did not declare Tract I to be a wetland but, rather, remanded the matter to the Corps for further study, plaintiffs did not prevail. This argument is specious. It is not for this court to determine whether property is a wetland, that decision being exclusively within the province of the Corps. What this court did determine was that the decision of the Corps was arbitrary and capricious. As the Supreme Court has said, ". . . plaintiffs may be considered 'prevailing parties' for attorneys' fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1982), quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978). Plaintiffs have certainly prevailed on the most important issue with regard to Count 1; i.e., whether the decision of the Corps was arbitrary and capricious, and they have thus achieved some of the benefit they sought when bringing the suit. The court holds, therefore, that they are prevailing parties with respect to Count 1. The federal defendants also contend that plaintiffs did not prevail with respect to Count 2. In their amended complaint plaintiffs sought, with respect to the 4,000-acre tract designated as Tract II, restoration of the lands which had been cleared under authorization of the nationwide headwaters permit, a declaration that Prulean had violated the CWA by the unpermitted discharge of dredged and fill material into waters of the United States; a declaration that the Corps and EPA had violated the Clean Water Act and regulations issued thereunder by permitting Prulean's activities; and, a declaration that the Corps had abused the nationwide "headwaters" general permit. A consent decree which disposed of Count 2 provided that Prulean would withdraw and abandon its 404 application on the 23,000-acre tract of land of which the 4,000-acre tract was a part and would not reapply for any such permit in the future except "for the areas delineated in Exhibit A . . ." attached to the order. The federal defendants contend and plaintiffs do not dispute that the excepted area is the 4,000-acre tract which is the subject of Count 2. Indeed, Prulean in its brief asserts that it is still farming that tract. The consent decree further provides for the dedication of conservation easements over portions of the 4,000-acre tract of land and the donation of the remainder of the tract to the United States. Thus, the ultimate objectives of plaintiffs were achieved. The private defendants contend that negotiations for these gifts were well under way when this lawsuit was begun and that the suit hindered — rather than helped — the final results being accomplished. The record does not bear this out. It is the court's feeling that this lawsuit served as an impetus for the gift of the lands and the easements and that it was the major factor in the abandonment of the 404 permit applications. Even if plaintiffs' efforts were only partially responsible for achieving the results, they are entitled to recover their attorneys' fees. As the Fourth Circuit said in Disabled In Action v. Mayor & City Council of Baltimore, 685 F.2d 881, 885 (4th Cir. 1982), quoting Bonnes v. Long, 599 F.2d 1316, 1319 (4th Cir. 1979): Under the law of this circuit, a party may be entitled to fees even though he was not solely or primarily responsible for the favorable disposition of a legal controversy. Rather, one may be deemed a prevailing party within the meaning of feegranting statutes if his "efforts contributed in a significant way" to the winning of benefits or relief from the "factual/legal condition that the fee claimant has sought to change." Thus, the court concludes that plaintiffs are prevailing parties with regard to Count 2 entitling them to attorneys' fees and costs under section 505(b) of the CWA. Having determined that plaintiffs are the prevailing parties on both counts of the complaint, the court must now calculate a reasonable fee. In doing so, this court, of course, is bound by the precedents of the United States Court of Appeals for the Fourth Circuit and the Supreme Court of the United States. Unfortunately those precedents are not entirely clear. For sometime the law in this circuit has been that it is the duty of the court to employ the analysis set out in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974), adopted by this circuit in Barber v. Kimbrell's, Inc., 577 F.2d 216 (4th Cir.), cert. denied, 439 U.S. 934 (1978), and as modified by Anderson v. Morris, 658 F.2d 246 (4th Cir. 1981). The Johnson factors are: (1) the time and labor expended; (2) the novelty and difficulty of the question raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney's expectations at the outset of the litigation; (7) the time limitations imposed by client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and, (12) attorney's fees awards in similar cases. Trial judges have been instructed to employ a threestep process in calculating the fee: first, determine the amount of time reasonably expended in the case; second, determine a reasonable hourly rate which, when multiplied by the number of hours, gives a "lodestar" amount; and third, making adjustments to the lodestar based on the Johnson factors. See Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424 (1983); Anderson v. Morris, 658 F.2d 246 (4th Cir. 1981). More recent decisions have indicated that most of the Johnson factors may be subsumed in the process of calculating the lodestar amount. Pennsylvania v. Delaware Valley Citizen's Council, U.S. , 106 S. Ct. 3088, 3098 [16 ELR 20801] (1986). Affidavits have been presented by counsel for plaintiffs setting forth in great detail the hours expended in the pursuit of this case. The court has scrutinized the affidavits very carefully and is satisfied that the hours claimed10 are reasonable. Although defendants contest the reasonableness of the time expended, particularly in contrast to the time which they spent, the court remains convinced that the claimed hours are legitimate and reasonable. Defendants must remember that the burden was on plaintiffs' counsel to search through an extensive record prepared by the Corps of Engineers and seek to find deficiencies therein, as this case was decided by the court on that record. The task of defendants, on the other hand, was to meet the challenges presented by plaintiffs. The court is especially convinced of the reasonableness of the claimed hours because: (1) plaintiffs voluntarily eliminated from their petition over 391 hours of recorded time in an effort to be "more than scrupulous" in the petition; (2) the practice of plaintiffs' counsel of not recording tasks which consumed a relatively short period of time; and, (3) no reimbursement was sought for the at least 225 hours expended by local counsel. Defendants also contend that plaintiffs are not entitled to compensation for time spent in preparation of the fee petition. This contention is totally without merit. Souza v. Southworth, 564 F.2d 609 (1st Cir. 1977). The court notes that an exceedingly large volume of paperwork has been presented to the court by all parties dealing with the attorney fee question. It has taken a considerable amount of this court's time reading and analyzing the briefs and arriving at a decision. The fears expressed by many commentators a few years ago that motions for attorney's fees would evolve into time-consuming, satellite litigation have proven very real. The court, therefore, approves the following hours as set forth in both the original and supplemental petitions:
Katherine P. Ransel, lead counsel for plaintiffs, graduated from law school in 1976 with distinction and served for six years in the Department of Justice as a trial attorney. She participated in numerous, complex civil rights cases and was often commended for her performance. She has been with Advocates since January 1983, serving as lead or co-counsel in numerous environmental enforcement cases throughout the United States. Nicholas C. Yost is a 1963 graduate of the University of California at Berkeley. He served as chief of the environmental unit of the California Department of Justice from 1971 until 1977 where he supervised all environmental litigation and administrative proceedings involving the State of California. He later served as general counsel of the Council on Environmental Quality during the Carter administration. He was director of the Center for Law in the Public Interest's Washington office from its inception in 1983 until 1985 when he became engaged in the private practice of law. Nancy Crisman graduated from Georgetown University Law School in 1982. She was an attorney with the National Prison Project of the American Civil Liberties Union from 1972 until 1977 when she joined the United States Department of Energy as assistant general counsel for regulatory litigation. In that position she is in charge of forty lawyers and support staff and supervises a docket of over 300 cases in the federal courts. Lawrence A. Goldberg is a 1983 graduate of Columbia Law School who served as a visiting fellow with the Center for Law in the Public Interest from September 1983 through July 1984. He has had experience in environmental law with the Environmental Defense Fund and the Environmental Protection Bureau of the New York State Department of Law. Plaintiffs have presented to the court affidavits of other attorneys in Washington, D.C., some of which were filed in conjunction with other cases which tend to indicate that in 1984 illustrative fees were as follows:
It is, therefore, ORDERED that the federal defendants pay to counsel for plaintiffs' attorneys fees in the amount of $398,069.45 and reimbursement for costs in the amount of $10,237.15.14 1. Due to the passage of time, no doubt many of these offices are now filled by other individuals, although no motions to substitute parties have been made. 2. PMA's entry was on 28 October 1983 while FCF's was on 26 March 1984. 3. Only the plaintiffs, federal defendants and Prulean were involved in Count 2. 5. Intervenor-defendant PMA contends that consideration of the fee petition as it relates to Tract I should be stayed until the automatic stay as to FCF is lifted. The argument in support of the contention is not persuasive and is not accepted by the court. 6. PMA was not involved in Tract II in any way. 7. FCF, the owner of Tract I, was permitted to intervene in March 1984 and thereafter pursued the same interest that PMA had previously asserted. 8. 623 F. Supp. 1539, at 1548. 9. Plaintiffs do not contend that this suit arises in any way under subsection (a)(1). 10. The court, in view of the overall quality of the work performed, does not even doubt the legitimacy of lead counsel's claim of seventeen hours on March 20, 1984, in drafting and revising the summary judgment memorandum. 11. The predecessor organization was named Center for Law in the Public Interest. 12. Years since graduation from law school. 13. Additionally, counsel have waited for many years to collect for their services. 14. This figure includes the listed costs of $6,334.65 and the amount payable to the experts, $2,500 to Dr. Otte and $1,402.50 to Dr. Huffman. 18 ELR 20008 | Environmental Law Reporter | copyright © 1988 | All rights reserved |