Greenfield Mills, Inc. v. Carter

Decision Date14 July 2008
Docket NumberCause No. 1:00 CV 0219.
Citation569 F.Supp.2d 737
PartiesGREENFIELD MILLS, INC., et al., Plaintiffs, v. Robert E. CARTER, Jr., as Director of the Indiana Department of Natural Resources, et al., Defendants.
CourtU.S. District Court — Northern District of Indiana

Eric C. Lewis, McCroskey Feldman Cochrane & Brock PC, Muskegon, MI, Neal R. Lewis, Lewis & Associates, Orland, IN, for Plaintiff.


WILLIAM C. LEE, District Judge.

Before the court is the Plaintiffs' Renewed Motion for an Interim Award of Attorney Fees originally filed on October 27, 2006 and renewed on November 9, 2007, 2007 WL 3333335. Defendants responded on November 26, 2007 to which the Plaintiffs replied on December 5, 2007. Supplemental filings related to the interim fee petition were filed on January 7 and 8, 2008. On February 4, 2008, the parties filed a "Joint Request for Limited Stay" indicating that progress had been made regarding settlement of the matter of interim fees. On February 13, 2008, the Defendants filed a "Notice of Settlement of Matters at Issue in Plaintiffs' Renewed Motion for Interim Attorney's Fees." For nearly six weeks thereafter, the court received from the parties status reports, updated status reports, and finally a motion for a hearing on the Notice of Settlement that had previously been filed. The court held a conference with counsel on April 6, 2008 at which time, new counsel appeared for the Defendants (in addition to Defendants' counsel already on the record) and advised that the Indiana Attorney General refused to approve the settlement reached by the parties and counsel. The undersigned then ordered the parties to make a final attempt to revive the settlement within thirty days or the court would proceed to consider the interim fee petition. On May 8, 2008, counsel advised the court that no settlement could be reached. Accordingly, and for the following reasons, the Plaintiffs' request for interim fees and costs will be GRANTED in the amounts set forth herein.


On May 16, 2000, the Plaintiffs,1 filed their multi-count Complaint charging the Defendants with violations of the Clean Water Act, 33 U.S.C § 1365, the Civil Rights Act, 42 U.S.C. § 1983 and conspiracy to violate the Civil Rights Act, 42 U.S.C. § 1985.2 To oversimplify, Plaintiffs asserted that the Defendants violated the Clean Water Act ("CWA"), 33 U.S.C. § 1311, by failing to obtain a permit required by the CWA before conducting dredging activities at the Fawn River State Hatchery. Plaintiffs further asserted that their First, Fourth, Fifth and Fourteenth Amendments were violated by the activities of the Defendants.

During this case's first stint before this court, the undersigned granted summary judgment to the Defendants on all the CWA claims and on the constitutional claims related to the Takings Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment. Prior to this court's ruling, the Plaintiffs, after some urging by this court, voluntarily dismissed the remaining § 1983 claims. On appeal, the Seventh Circuit reversed this court's decision as to one of the CWA claims but affirmed the court's grant of summary judgment as to the Fifth and Fourteenth Amendment claims. After post-appeal proceedings in this Court, the undersigned granted summary judgment as to liability under the CWA against the Defendants. Thereafter, the parties agreed to permanent injunctive relief (docket # s 225 and 255) and agreed to the appointment of CH2M Hill to serve as a neutral expert to: (1) prepare an assessment of current conditions of the Fawn River and Greenfield Mills pond, and of the presence of excess sediments in the Fawn River and Greenfield Mills' pond; and (2) prepare, if necessary, specifications for removal of any sediments, and plans for remediation of the aquatic habitat and aquatic populations, as may be necessary to remediate the effects of any excess sediment or related damage and to restore the Fawn River and Greenfield Mills' pond to pre-May 18, 1998 condition, together with preparing a cost estimate of the same. (See Stipulation, Docket # 248). These tasks were to be divided into three phases.

On January 9, 2007, 2007 WL 102144, the undersigned denied the original request for interim fees under the theory that because CH2M Hill had not yet determined that excess sediment from the May 18, 1998 event remained in the Fawn River, the Plaintiffs' motion was premature. However, the Court laid the groundwork for Plaintiffs to renew their motion once CH2M Hill's initial assessment was completed and the court determined the assessment was favorable to the Plaintiffs.

This is precisely what occurred. On April 26, 2007, the Court received the Phase One report from CH2M Hill. Plaintiffs then moved to proceed to Phase II contending that the report, on its face, supported a conclusion that substantial excess sediment from the May 18, 1998 event remained in the Fawn River. Defendants objected and submitted supplemental expert data supporting, they argued, a different conclusion than that of CH2M Hill. A hearing was held on November 2, 2007. On November 9, 2007, the undersigned entered an Opinion and Order [DE 285], finding that CH2M Hill had determined that excess sediments are present to a substantial degree in the Fawn River and Greenfield Mills Pond as a result of the May 18, 1998 event and directing CH2M Hill to proceed with the remediation phases of the assessment. On the same day, Plaintiffs' renewed their request for interim fees.

Plaintiffs seek an award of fees pendente lite in an amount of $1,232,629.75 as well as costs and expenses in an amount of $78,803.57 through October 26, 2006. [DE 259, Exh. 25].


The citizen-suit provision of the CWA authorizes a court to award the "costs of litigation (including reasonable attorney . . . fees) to any prevailing or substantially prevailing party[.]" 33 U.S.C. § 1365(d).3 Under fee-shifting statutes such as the one above, courts may order an interim fees award, but "only when a party has prevailed on the merits of at least some of his claims." Hanrahan v. Hampton, 446 U.S. 754, 758, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980). To qualify as "prevailing," a party "must have succeeded on `any significant issue in the litigation which achieves some of the benefit' sought." Earth Island Institute, Inc. v. Southern California Edison Co., 838 F.Supp. 458, 464 (S.D.Cal.1993) (quoting Hensley, 461 U.S. at 433, 103 S.Ct. 1933). Or, put in slightly different terms, a "prevailing party" is one that achieves "a material alteration of the legal relationship of the parties." Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health & Human Resources, 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855,(2001).

In Webster v. Sowders, 846 F.2d 1032 (6th Cir.1988), the Court summarized the law concerning interim awards of attorney's fees as follows:

Interim attorney fees awarded during the pendency of litigation are permissible and thus within the authority of the district court when the court has entered a concrete order that determines substantial rights of the parties, meaning when a party has prevailed on the merits of at least some of his claims. Interim fees are especially appropriate when a party has prevailed on an important matter in a case, even if the party ultimately does not prevail on all issues. The Supreme Court has declared that, particularly in complex cases of long duration, delaying a fee award until the conclusion of litigation would work substantial hardship on plaintiffs and their counsel and discourage the institution of actions that Congress intended to encourage by passage of attorney fee statutes.

It is precisely for the above reasons, namely the duration of this case and the importance of the consent decrees entered in response to the liability determination that Plaintiffs believe they are entitled to an award of interim fees. The Defendants oppose Plaintiffs' petition for an award of fees and costs contending that no final judgment has been entered in this case.

Certainly an award of interlocutory or interim attorney's fees are the exception rather than the rule. In this case, however, it would be an abuse of discretion to deny them given the substantial relief that plaintiffs have obtained and the permanent change in policy and law that plaintiffs have achieved because of this case—all without a final judgment having yet been entered. See Northeast Iowa Citizens For Clean Water v. Agriprocessors, Inc., 489 F.Supp.2d 881, 892 (N.D.Iowa,2007) (citing authorities and indicating that a consent decree may serve as the basis for an award of attorneys fees under the CWA). The Defendants in this case agreed4 to a key fact on the record which resulted in the adverse liability determination against them at the post-remand summary judgment phase. [DE 208]. Flowing from that determination, the parties stipulated to an Order of Permanent Injunction enjoining the defendants from "future operation of IDNR dams or other water control structures in a manner that would violate the Clean Water Act." This, in and of itself, is substantial relief. But, the Plaintiffs also obtained a permanent policy change to the manner in which the Indiana Department of Natural Resources operates its dams. In fact, this case resulted in a change in national policy as well; the United States Army Corps of Engineers has issued a Regulatory Guidance Letter to governmental agencies, which cites to this case, and provides advice relating to releases of sediments from or through dams.

Moreover, the court-appointed expert in this case has concluded that massive amounts of sediment remain in the Fawn River as a result of the May 18, 1998 event leaving only the scope and manner of remediation to be determined. Thus, Plaintiffs have prevailed in demonstrating that their CWA...

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