St. John's Organic Farm v. Gem County Mosquito

• Decision Date: 16 July 2009
• Docket Number: No. 07-35797.,07-35797.
• Citation: 574 F.3d 1054
• Parties: SAINT JOHN'S ORGANIC FARM; Peter Dill, individually, Plaintiffs-Appellants, v. GEM COUNTY MOSQUITO ABATEMENT DISTRICT, a political subunit of the State of Idaho; Gem County, State of Idaho, a political unit of the State of Idaho, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

574 F.3d 1054

SAINT JOHN'S ORGANIC FARM; Peter Dill, individually, Plaintiffs-Appellants, v. GEM COUNTY MOSQUITO ABATEMENT DISTRICT, a political subunit of the State of Idaho; Gem County, State of Idaho, a political unit of the State of Idaho, Defendants-Appellees.

No. 07-35797.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 2009.

Filed July 16, 2009.

Amended August 3, 2009.

Charles M. Tebbutt, Western Environmental Law Center, Eugene, OR, for the appellants.

Susan E. Buxton, Moore Smith Buxton & Turcke, Mark L. Pollott, Murray D. Feldman, Holland & Hart, LLP, Michael John, Kane, Boise, ID, for the appellee.

Appeal from the United States District Court for the District of Idaho, B. Lynn Winmill, District Judge, Presiding. D.C. No. CV-04-00087-BLW.

Before: W. FLETCHER, RONALD M. GOULD and RICHARD C. TALLMAN, Circuit Judges.

Opinion by Judge WILLIAM A. FLETCHER; Concurrence by Judge TALLMAN.

ORDER AND AMENDED OPINION ORDER

The opinion filed in this matter on July 16, 2009, 2009 WL 2053143, is amended as follows:

1. The party caption is amended to delete the reference to intervenor parties and now reads:

"SAINT JOHN'S ORGANIC FARM; PETER DILL, individually, Plaintiffs-Appellants,

v.

GEM COUNTY MOSQUITO ABATEMENT DISTRICT, a political subunit of the State of Idaho; GEM COUNTY, STATE OF IDAHO, a political unit of the State of Idaho, Defendants-Appellees."

2. The counsel listing is amended to delete any reference to counsel for intervenor parties and now reads:

"William M. Eddie, FIELD JERGER, LLP, Portland, OR, Charles M. Tebbutt, WESTERN ENVIRONMENTAL LAW CENTER, Eugene, OR, for the Appellants

Susan E. Buxton, MOORE SMITH BUXTON & TURCKE, Boise, ID, Mark L. Pollott, Boise, ID, Murray D. Feldman, HOLLAND & HART, LLP, Boise, ID, Michael John Kane, Boise, ID, for the Appellee"

OPINION

WILLIAM A. FLETCHER, Circuit Judge:

Plaintiffs Saint John's Organic Farm and Peter Dill (collectively, "Dill") filed suit under the citizen-suit provisions of the Clean Water Act ("CWA"), 33 U.S.C. § 1365, against the Gem County Mosquito Abatement District and Gem County (collectively, "GCMAD"). Dill alleged that GCMAD's discharges of pesticides directly into the waters of the United States without a National Pollutant Discharge Elimination System ("NPDES") permit violated the CWA. Dill and GCMAD settled the suit.

The Settlement Agreement ("Agreement") limited GCMAD's pesticide spraying in several ways and provided that 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. (For ease of reference, we will refer simply to "attorney's fees.") The district court denied Dill's attorney's fees application, holding under § 1365(d) that Dill was not a "prevailing or substantially prevailing party" and, in the alternative, that it was not "appropriate" to grant fees to Dill.

We reverse. We hold that Dill was a prevailing party under § 1365(d). We remand to the district court to consider whether fees are appropriate under the standard articulated in this opinion.

I. Background

This case arises out of GCMAD's longstanding use of pesticides to control mosquitoes in Gem County, Idaho. Among other measures, GCMAD has applied adulticides — pesticides used to kill adult mosquitoes — by spraying from airplanes and "fogging" from trucks. Dill sent GCMAD a notice of intent to sue pursuant to 33 U.S.C. § 1365(b), alleging that GCMAD was required to obtain an NPDES permit from the Environmental Protection Agency ("EPA") for its discharge of pesticides (not limited to adulticides) into the waters of the United States. GCMAD then applied to the EPA for an NPDES permit. The EPA responded that an NPDES permit was unnecessary (and therefore unavailable) under an EPA interim interpretive guidance.

After the EPA refused to grant a permit to GCMAD, the parties engaged in preliminary settlement talks. Before a settlement was reached, however, GCMAD brought suit against the EPA and Dill in federal district court for the District of Columbia. GCMAD sought a declaratory judgment that either it was not required to obtain a permit or that the EPA was required to issue it a permit. However, GCMAD consistently contended in that court that a permit was not required. Dill responded by filing suit in federal district court in Idaho. As he had alleged in his intent-to-sue letter, Dill again alleged that GCMAD was violating the CWA by discharging pesticides (not limited to adulticides) into the waters of the United States without an NPDES permit. The district court in Idaho stayed proceedings pending resolution of the suit in D.C. district court.

The D.C. district court dismissed GCMAD's suit in January 2003. Gem County Mosquito Abatement Dist. v. EPA, 398 F.Supp.2d 1, 4 (D.D.C.2005). It held that there was no case or controversy between GCMAD and the EPA because both parties took the position that no permit was required. Id. at 6-8. It further held that venue in D.C. was improper for GCMAD's claim against Dill. Id. at 12-13. GCMAD appealed this decision to the D.C. Circuit, but then dismissed its own appeal. GEM County Mosquito Abatement Dist. v. EPA, 2005 WL 3789086 (D.C.Cir. Sept. 8, 2005).

The Idaho district court lifted its stay in March 2005. In July 2006, the parties filed a Settlement Agreement ("Settlement Agreement" or "Agreement") with the district court. The Agreement requires GCMAD: (1) to make a concerted effort to substantially reduce over five years its use of adulticides by attempting to meet yearly targets for reduced use; (2) not to engage in aerial spraying of adulticides except in the event of a declared health emergency; (3) not to engage in truck fogging of adulticides within 300 feet of the Payette River; on the Payette River Wildlife Management area or within 300 feet of a section of that area; or on or within 150 feet of any irrigation canal in the county; (4) to conduct surveillance monitoring and upgrade surveillance activities for mosquitoes and apply mosquito threshold standards before fogging; (5) to contribute funds annually to the Gem County Soil and Water Conservation District to help improve drainage in order to facilitate reduction of mosquito habitat; (6) to participate in a state planning committee on the West Nile Virus; (7) to work with landowners to eliminate mosquito habitat; and (8) to apply reasonable standards, take reasonable steps, and consider all relevant factors when complying with requests from property owners that their property not be sprayed.

The Agreement requires Dill: (1) to release all claims against GCMAD under the CWA and dismiss his suit with prejudice; (2) to work with GCMAD to notify Dill's neighbors about the Agreement and the mosquito control methods to be used around his land; (3) to introduce additional mosquito predators on his property; and (4) to agree not to sue under the CWA as long as GCMAD complies with the Agreement.

The Agreement provides that the district court should retain jurisdiction to enforce its terms. Finally, the Agreement provides, "The parties have not agreed on the issues of attorney fees and costs. The parties agree that the Court will retain jurisdiction to decide any applications for attorney fees and costs pursuant to 33 U.S.C. § 1365(d) submitted by any party."

Dill applied to the district court for attorney's fees. The district court denied Dill's application under 33 U.S.C. § 1365(d), holding that Dill was not a "prevailing or substantially prevailing party" and, in the alternative, that an award was not "appropriate." Dill timely appealed.

II. Standard of Review

We review the district court's award or denial of attorney's fees for abuse of discretion. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1118 (9th Cir.2000). Under this standard, we review the district court's factual findings for clear error and review de novo its legal analysis. Id.

III. Discussion

Section 505(d) of the CWA 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 prevailing or substantially prevailing party, whenever the court determines such award is appropriate.

33 U.S.C. § 1365(d). In order to award attorney's fees under § 1365(d), a district court must make two findings. First, it must find that the fee applicant is a "prevailing or substantially prevailing party." Second, it must find that an award of attorney's fees is "appropriate." We address each in turn.

A. "Prevailing or Substantially Prevailing Party"

Dill contends that he is a prevailing party within the meaning of § 1365(d). He makes two arguments. First, he argues that he received "actual relief on the merits of his claim" that "materially alter[ed]" the legal relationship between him and GCMAD by "modifying [GCMAD's] behavior in a way that directly benefits" Dill. Richard S. v. Dep't of Dev. Servs. of Cal., 317 F.3d 1080, 1086 (9th Cir.2003) (internal quotation marks omitted). Second, in the alternative, he argues that he is entitled to recover fees on the "catalyst theory." For the reasons that follow, we agree with Dill's first argument. We do not reach his second argument.

A litigant qualifies as a prevailing party if it has obtained a "court-ordered `chang[e] [in] the legal relationship between [the plaintiff] and the defendant.' " Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (alterations in original) (citation omitted). "[T]he plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant." Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). Following Buckhannon and Texas State Teachers, we have held that parties must have...