Conservation Law Foundation of New England, Inc. v. Secretary of Interior, 85-1860

• Decision Date: 05 May 1986
• Docket Number: No. 85-1860,85-1860
• Citation: 790 F.2d 965
• Parties: , 16 Envtl. L. Rep. 20,722 CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC., et al., Plaintiffs, Appellees, v. SECRETARY OF the INTERIOR, et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 965

790 F.2d 965

24 ERC 1731, 16 Envtl. L. Rep. 20,722

CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC., et al Plaintiffs, Appellees, v. SECRETARY OF the INTERIOR, et al., Defendants, Appellants.

No. 85-1860.

United States Court of Appeals First Circuit.

Argued Feb. 6, 1986.

Decided May 5, 1986.

Albert M. Ferlo, Jr., Dept. of Justice, Washington, D.C., with whom Anne S. Almy, Dept. of Justice, F. Henry Habicht, II, Asst. Atty. Gen., Washington, D.C., and William F. Weld, U.S. Atty., Boston, Mass., were on brief, for defendants, appellants.

J. Cleve Livingston with whom Laurie E. Kermish, Boston, Mass., was on brief, for plaintiff, appellee Conservation Law Foundation of New England, Inc.

Before COFFIN, ALDRICH and BOWNES, Circuit Judges.

BAILEY ALDRICH, Senior Circuit Judge.

This appeal, taken by the Secretary of the Interior, hereafter Secretary, from an award of counsel fees arises from one of the Secretary's unsuccessful attempts to sell leases of oil exploration and drilling rights on the continental shelf in the commercially and environmentally important Georges Bank area. On August 27, 1984, the Secretary published a final notice of sale, pursuant to 43 U.S.C. Sec. 1337(l), setting the date for Lease Sale 82, Part I, ¹ involving 1,138 blocks and 6.3 million acres, for thirty days later (September 26, 1984), the minimum time allowed by the statute. On September 7, the Conservation Law Foundation, hereafter CLF, appellee herein, filed suit under the National Environmental Protection Act, 42 U.S.C. Secs. 4321-47 (NEPA), the Outer Continental Shelf Lands Act, 43 U.S.C. Secs. 1331-56 (OCSLA), and the Endangered Species Act, 16 U.S.C. Secs. 1531-43 (ESA), to stop the sale until the requirements of these acts had been met. The Commonwealth of Massachusetts had, shortly earlier, filed a similar suit, and the two were consolidated. CLF filed an extensive brief in support of its request for injunctive relief and the Commonwealth, likewise, filed a brief. Briefs in opposition were filed by the Secretary and by eight oil companies, intervenor defendants. Oral argument was had on September 20, and on the morning of September 25 the district court issued a preliminary injunction enjoining the sale, followed the next day by its memorandum and order setting forth its reasons. Commonwealth v. Clark, 594 F.Supp. 1373 (D.Mass.1984).

Immediately upon the court's issuance of the injunction, the Secretary asked for a hearing, which was held at 4:15 p.m. on September 25th, and in which he asked the court to withdraw its order. In support of this request, counsel represented in a "Critical New Information" memorandum that no industry bids had been received, and that therefore the sale was being cancelled. Counsel asked the court to act as "a wise parent, when the child comes in and is hurt or does something wrong or that there's been a problem or something like that and the parent doesn't have to make it worse, sometimes just listening or understanding." The court, apparently rejecting the charge of being a child abuser, declined the request. We note counsel's language, however, in light of the Secretary's present position that the court's action had been of no consequence.

On November 21, 1984, the Secretary filed a notice of appeal. On December 21, over two months after a decision of the International Court of Justice (ICJ) determined that the tracts in question belonged to Canada, he cancelled Lease Sale 82, Part II. On March 5, 1985, after the Secretary represented by affidavit that no new sales would take place until February 1987 at the earliest and that the administrative record for Lease Sale 82 would be abandoned, the court dismissed the case. CLF then asked for attorneys' fees, and on May 30, 1985, the court issued its memorandum and order awarding fees of $75,943.38, subsequently corrected to $73,743.38, to CLF, from which order the Secretary now appeals.

The court awarded fees under the citizens' suit provisions of the ESA and OCSLA. 16 U.S.C. Sec. 1540(g)(4); 43 U.S.C. Sec. 1349(a)(5). Under both of these provisions, the court may award fees "whenever ... appropriate." The Secretary contends that where plaintiff appellee obtained only a preliminary, "status quo" injunction, and the case was mooted by "happenstance" before final resolution on the merits, appellee cannot be said to have attained such a degree of success as to make fees "appropriate." The meaning of appropriate, seemingly requiring less than "prevailing party," 42 U.S.C. Sec. 1988, and its application to the circumstances of this case are the principal questions before us.

In Ruckelshaus v. Sierra Club, 463 U.S. 680, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983), the Court rejected the claim that it could be "appropriate" for an environmentalist body to seek a review of the situation and thereby be entitled to a fee, when its suit had failed. To qualify for a fee there must be "partially prevailing ... some success, even if not major success." 463 U.S. at 688, 103 S.Ct. at 3278 (emphasis in orig.). Again, "trivial success on the merits, or purely procedural victories," is not enough. Id., n. 9. It is the Secretary's position that under this standard no fee is appropriate, plaintiff's vine having died before producing fruit. The Secretary would put it simply. Because Part I of the sale fell through for lack of bidders, and Part II because of the decision of the ICJ, both happenstance, plaintiff's suit accomplished nothing. True, the preliminary injunction was a finding of a likelihood of success, but it was never made concrete, even in the district court.

The Secretary argues that the Ruckelshaus Court used "appropriate" to mean prevailing on a matter other than the main issue. However, "prevailing," simpliciter, already meant this. Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978). "Whenever appropriate," accordingly, would seem language chosen to give the court broader leeway. The Secretary at one point says that he "faithfully recognizes the distinction," and that "the term 'appropriate' modifies ... the traditional rule," but he quickly turns to cases, and even a secondary authority, that involve only that rule. We believe that the Ruckelshaus Court's phrase "some success, even if not major success," may be taken as notable progress, short of full achievement, on any issue of substance.

Many problems originate from a requirement of strict "prevailing," some of which would seem to lead to unfortunate results from the standpoint of the legislative purpose in awarding fees. Meritorious suits may become moot in various ways. Here the sale aborted, but a statute may be rescinded, a civil rights plaintiff no longer need the relief, or some other happenstance, as the Secretary would have it, occur. The Secretary says CLF did not prevail here because the injunction was not a final ruling, but, equally, even if the case had gone to judgment in the district court, it still would not be final, since it could be reversed on appeal. The purpose of attorney's fees is to encourage actions to enforce the statute. It is proper that counsel must depend on success, but is it appropriate that they risk loss of all compensation when, though, on the record, demonstrably well on their way to final success, the rug is pulled out by happenstance mootness?

A preliminary injunction is not a mere procedural order; it contains an affirmative finding of likelihood of success, entitled to weight, Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32, 95 S.Ct. 2561, 2567-68, 45 L.Ed.2d 648 (1975); Commonwealth v. Andrus, 594 F.2d 872, 878 (1st Cir.1979), more than a mere holding that plaintiff's evidence, if believed, would warrant recovery. Cf. Hanrahan v. Hampton, 446 U.S. 754, 758-59, 100 S.Ct. 1987, 1989-90, 64 L.Ed.2d 670 (1980). And even here there may be questions of degree.

Our general conclusion is that though obtaining a preliminary injunction will not always entail fees, it may where the court's findings and rulings come close to the relief ultimately sought. Cf. Coalition for Basic Human Needs v. King, 691 F.2d 597 (1st Cir.1982). And, further, there may be related successes that do not go directly to the relief sought.

In the present case, though legally provisional, the court's extensive findings, not, incidentally, phrased provisionally, as to the shortcomings of the administrative record seem a quite obvious explanation of the Secretary's previously quoted unhappiness. The inference seems apparent that the much touted interested bidders disappeared by more than coincidence when their counsel, retained to persuade the court to abstain, lacked the material with which to do so. The Secretary succeeded in having the action dismissed as moot, only after he agreed to abandon the administrative record, at least, arguably, the ultimate practical result sought by CLF.

Before leaving the mootness question, and as an introduction to the next, that of fees on issues strictly not prevailed on at all, we note our recent case of Exeter-West Greenwich Regional School District v. Pontarelli, Comm'r., 788 F.2d 47 (1st Cir.1986). There plaintiff School District brought a section 1983 action against the Commissioner of Education for his requiring it to pay for the education of a child in a religiously affiliated high school. The District contended this was an unconstitutional establishment of religion. The School District's basic obligation arose under a Rhode Island statute, and the district court certified to the Rhode Island Supreme Court the statutory meaning. That court interpreted the statute as permitting the School District to choose its own school, and did not reach the constitutional question. The district court thereupon dismissed the action as moot, but awarded attorney's fees. On appeal, we affirmed. Plaintiff had achieved success, although in the state proceedings, and only on a related issue, on which there would have been no section 1983 claim....