Ninth Circuit Explains Standards for Collecting Fees under Clean Water Act.
The next case involves alphabet soup: GCMAD, NPDES, EPA, CWA, and the spraying of adulticides. Translation: Gem County Mosquito Abatement District, National Pollutant Discharge Elimination System, Environmental Protection Agency, Clean Water Act, and the spraying of pesticides used to kill adult mosquitoes. St. John's Organic Farm, et al. v. Gem County Mosquito Abatement District, et al., Case No. 07-35797 (9th Cir., filed July 16, amended Aug. 3, 2009) (for publication).
Plaintiffs Saint John’s Organic Farm and Peter Dill sued under the citizen-suit provisions of the Clean Water Act, 33 U.S.C. § 1365, against GCMAD and Gem County, alleging pesticide discharges into the waters of the United States without an NPDES permit violated the CWA Gem County Mosquito Abatement District and Gem County (collectively, “GCMAD”). Dill alleged that GCMAD’s discharges of pesticides directly into United States waters, without an NPDES permit, violated the CW. Dill and GCMAD settled the suit. The Settlement Agreement limited GCMAD’s pesticide spraying and provided an application for “costs of litigation (including reasonable attorney and expert witness fees)” under 33 U.S.C. § 1365(d) could be made to the district court.
The district court denied a request by plaintiffs for fees, holding that they were not prevailing parties, and that fees were not appropriate. The Court of Appeals, in an opinion authored by Justice William A. Fletcher, with a separate concurrence written by Justice Tallman, reversed and remanded to the district court for a determination of whether fees were appropriate under the standards articulated in the opinion.
Plaintiffs satisfied the three tests necessary to be declared prevailing parties: (1) the settlement was judicially enforceable; (2) there was a material alteration of the legal relationship between the parties; and (3) there was actual relief on the merits in favor of plaintiffs.
The Court of Appeal adopted the “special circumstances” standard elaborated in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968), as the proper standard for determining whether an award of attorney’s fees to a prevailing plaintiff is “appropriate” under § 1365(d). In Piggie Park, the Supreme Court held, “one who succeeds in obtaining an injunction under [Title II] should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Now the district court will have to decide whether there are any "special circumstances" that would render unjust an award to Saint John's Organic Farm and Peter Dill.
To hear what the Dalai Lama has to say about mosquitoes, just click on the video below..
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