AMERICAN CANOE ASS'N, INC. v. City of Louisa

• Decision Date: 27 January 2010
• Docket Number: Civil Action No. 01-99-ART.
• Citation: 683 F. Supp.2d 480
• Parties: AMERICAN CANOE ASSOCIATION, INC., et al., Plaintiffs, v. CITY OF LOUISA, Kentucky, Defendant.
• Court: U.S. District Court — Eastern District of Kentucky

683 F.Supp.2d 480

AMERICAN CANOE ASSOCIATION, INC., et al., Plaintiffs, v. CITY OF LOUISA, Kentucky, Defendant.

Civil Action No. 01-99-ART.

United States District Court, E.D. Kentucky, Northern Division, Ashland.

January 27, 2010.

Aarma S. Ahmad, Bruce J. Terris, Carolyn Smith Pravlik, Demian A. Schane, Michael G. Shaw, Terris, Pravlik & Millian, LLP, Washington, DC, for Plaintiffs.

Eldred Edward Adams, Jr., Adams & Adams, Louisa, KY, for Defendant.

MEMORANDUM OPINION AND ORDER

AMUL R. THAPAR, District Judge.

Plaintiffs American Canoe Association, Inc. and the Sierra Club filed a motion for attorney fees and expenses, R. 175, pursuant to 33 U.S.C. § 1365(d). They request fees of $1,195,769.90 and expenses of $262,499.54 through October 28, 2009. R. 177 at 15. Defendant City of Louisa responded, challenging the application, and proposing an award of $56,850 and expenses of $5,550.90. R. 176 at 39. For the reasons stated below, American Canoe will receive $418,720.09 in attorney fees and $62,165.96 in expenses.

I. FACTUAL SUMMARY

On March 19, 2001, Plaintiffs American Canoe Association, Inc. and the Sierra Club (collectively, "American Canoe") notified the Louisa Water Treatment Plant and the City of Louisa Water & Sewer Commission of their violations of 33 U.S.C. § 1251 et seq. ("Clean Water Act"). The City of Louisa processes drinking water from the Big Sandy River through a water treatment plant. R. 1 at 6. In 2001, the plant operated under a National Pollution Discharge Elimination System ("NPDES") permit that the Commonwealth of Kentucky re-issued in 1996 under the Clean Water Act. Id. at 7. On April 19, 2001, the Commonwealth of Kentucky's Natural Resources and Environmental Protection Cabinet initiated an administrative enforcement action against Louisa. R. 105, Ex. 1. Negotiations between the Commonwealth and Louisa produced a settlement on August 7, 2001. Id. Louisa planned to renovate its water treatment plant to comply with the permit by March 31, 2003. Id. at 2. Defendants also paid the Commonwealth a $3,000 civil penalty. Id. American Canoe played no part in these negotiations although Louisa updated it throughout the settlement discussions. R. 167 at 10. The new water treatment plant came into service on October 1, 2003. R. 105 at 21-22. The City of Louisa received official notification that it had complied with the settlement on April 15, 2004. R. 176 at 8. Though it drastically minimized violations of the NPDES permit, occasional violations still continued. R. 167 at 11-12. The plant continues to have minor chlorine releases and bypasses to this day. Id.

In the meantime, American Canoe filed a citizen suit under 33 U.S.C. § 1365 ("Clean Water Act") based on the Louisa Water Treatment Plant and the City of Louisa Water & Sewer Commission's repeated violations of the NPDES permit. See R. 1. Terris, Pravlik & Millian, LLP ("TPM"), a Washington, D.C.-based environmental law firm, represented American Canoe. See id. American Canoe sought a declaratory judgment, injunctive relief, civil penalties, and costs, including attorney fees and expert witness fees, for the permit violations. Id. On August 17, 2001, American Canoe added the City of Louisa as a Defendant. R. 8. On June 11, 2002, the Court dismissed this case for lack of standing. R. 19. On November 29, 2004, the Sixth Circuit reversed and remanded this case to the Court. R. 31. The Court dismissed the Louisa Water Treatment Plant and the City of Louisa Water & Sewer Commission, leaving the City of Louisa ("Louisa") as the only Defendant. R. 114, 137.

On February 27, 2009, Louisa won partial summary judgment, and the Court dismissed American Canoe's claims for civil penalties for the alleged post-2001 violations. See R. 137. American Canoe won partial summary judgment for civil penalties arising out of proven pre-2001 violations. See Id. On July 20, 2009, the Court ordered Louisa to pay $30,000 in civil penalties and denied American Canoe's request for injunctive relief. See R. 163.

Now, pursuant to § 1365(d), American Canoe asks Louisa to pay $1,160,117.20 in attorney fees, which it calculated based on Washington, D.C. billing rates, and $261,720.42 in expenses incurred through September 10, 2009. R. 175 at 1. American Canoe also seeks an additional $35,652.70 in fees and $779.12 in expenses incurred from September 10, 2009, to October 28, 2009, for preparing its reply brief to its attorney fee petition. R. 177 at 15. Louisa disputes whether American Canoe should receive any attorney fees at all, and also challenges American Canoe's number of hours worked, its hourly rate, and its expense calculations. See R. 176.

II. SUBSTANTIALLY PREVAILING PARTY

Under the Clean Water Act, a court may award costs of litigation "to any prevailing or substantially prevailing party, whenever the court deems such an award is appropriate." 33 U.S.C. § 1365(d). The bulk of attorney fee case law comes from claims under 42 U.S.C. § 1988(b), the statute for attorney fees in civil rights actions. The Supreme Court has applied those standards to attorney fees in environmental law cases. See City of Burlington v. Dague, 505 U.S. 557, 561-62, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992); Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 559, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (citing Northcross v. Bd. of Educ. of Memphis City Sch., 412 U.S. 427, 428, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973)). In the only case where the Sixth Circuit considered an award under § 1365(d), it too followed the § 1988(b) line of cases. See Sierra Club v. Hamilton County Bd. of County Comm'rs, 504 F.3d 634, 656 (6th Cir.2007) (citing Buckhannon Bd. and Care Home, Inc. v W. Va. Dep't of Health and Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001)). Thus, the § 1988(b) standards apply here.

As a threshold matter, American Canoe is entitled to attorney fees under the Clean Water Act because it substantially prevailed in this lawsuit. "A plaintiff `prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992).<sup>1</sup> American Canoe's notice letter sparked a chain of events that changed Louisa's behavior; after the notice was filed, Louisa entered negotiations with the Commonwealth of Kentucky to build a new water treatment facility and to comply with the Clean Water Act. American Canoe reached the goal of its litigation—to force Louisa to comply with the Clean Water Act regulations. The Supreme Court has held that "a plaintiff is a `prevailing party' when he receives `at least some relief on the merits of his claim,' even nominal damages." Andretti v. Borla Performance Indus., Inc., 426 F.3d 824, 835 (6th Cir.2005) (quoting Buckhannon, 532 U.S. at 603, 121 S.Ct. 1835). Louisa was required to pay a $30,000 civil penalty for its violations. In addition to building a new water treatment facility, payment of the civil penalty constitutes relief on the merits.

Further, American Canoe prevailed in its litigation by holding Louisa accountable for its monitoring and reporting violations in addition to its discharge violations. The Sixth Circuit, when considering the appeal to the standing decision, held that even if the renovation project made it substantially likely that the discharge violations would not recur, that would not mean that the monitoring and reporting violations would end as well. American Canoe Ass'n v. City of Louisa Water & Sewer Comm'n, 389 F.3d 536, 543-44 (6th Cir.2004). Indeed, upon remand this Court found in February 2009, that even since completion of the water treatment plant there had already been 161 monitoring violations and 98 reporting violations. R. 167 at 10 (citing R. 84, Ex. 5-8). The Court concluded that "there is no question that the fact that this lawsuit has been hanging over the City has caused it to begin the process of becoming a compliant City." Id. at 14. American Canoe prevailed in its pursuit of the discharge, reporting, and monitoring violations, and thus, substantially prevailed in this litigation.

Louisa argues that since American Canoe's success was de minimis, it did not substantially prevail and, thus, it should not receive an award of attorney fees. R. 176 at 6-7. This is incorrect. The degree of American Canoe's success does not affect its status as a prevailing party, so long as American Canoe achieved "some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)). It did. The Court noted when awarding the $30,000 civil penalty that "the plaintiffs are at least in part the prevailing parties here, and therefore are entitled to attorneys' fees and costs." R. 167 at 16. American Canoe's degree of success is an important factor in adjusting the lodestar to a reasonable amount in light of the hours expended. See infra, IV. A. But overall, American Canoe substantially prevailed under § 1365(d) and, as a result, will receive reasonable attorney fees.²

III. LODESTAR ANALYSIS

"`The primary concern in an attorney fee case is that the fee awarded be reasonable,' that is, one that is adequately compensatory to attract competent counsel yet which avoids producing a windfall for lawyers." Adcock-Ladd v. Sec'y of Treasury, 227 F.3d 343, 349 (6th Cir.2000) (quoting Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir.1999)). In determining the amount of an attorney fee award, courts begin by calculating the fee applicant's "lodestar," which is the "proven number of hours reasonably expended on the case by an attorney, multiplied by a reasonable hourly rate." Isabel v. City of Memphis, 404 F.3d 404, 415 (6th Cir.2005) (citing Hensley, 461 U.S. at 433, 103 S.Ct. 1933).

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