United States v. Tarkowski

No. 99 C 7308 (>NDIII> November 30, 2001)

ELR Digest

A district court denied the U.S. government's request to deny a landowner's Equal Access to Justice Act (EAJA) petition for attorneys fees accrued while contesting a government suit seeking access to his property under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 104(e) for the purpose of remediation. The government's CERCLA action against the landowner was dismissed, and the EAJA authorizes attorneys fees when a person prevails against the United States in a civil lawsuit. However, the EAJA encourages the federal government to pursue civil litigation against private parties in a professional and appropriate manner, and if the government's case is substantially justified, attorneys costs may not be awarded. The court first holds, nevertheless, that in this case, the government's CERCLA suit was unjustified. The government did not have a reasonable basis in fact to believe that the landowner's property harbored contamination presenting an imminent and substantial endangerment to public health, welfare, and the environment. Likewise, the government's legal theory—that if it has probable cause to believe even a thimbleful of hazardous substance is spilled on someone's property, it has an absolute right of access—has no reasonable basis. Such a right would give the government an unlimited power of warrantless search and seizure that the Fourth Amendment would certainly forbid. Moreover, there was no reasonable connection between the facts alleged and the legal theory propounded by the government.

[Prior decisions in this litigation are published at 30 ELR 20622 and 31 ELR 20572.]

The full text of this decision is available from ELR (6 pp., ELR Order No. L-423).

Counsel for Plaintiff
Mark Ter Molen
Mayer, Brown & Platt
190 S. La Salle St., Chicago IL 60603
(312) 782-0600

Counsel for Defendant
Kurt N. Lindland, Ass't U.S. Attorney
U.S. Attorney's Office
Everett M. Dirksen Bldg.
219 S. Dearborn St., 5th Fl., Chicago IL 60604
(312) 353-5300

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]