National Wildlife Federation v. Hanson

• Decision Date: 14 December 1988
• Docket Number: No. 87-3183,87-3183
• Citation: 859 F.2d 313
• Parties: , 18 Envtl. L. Rep. 21,509 NATIONAL WILDLIFE FEDERATION; Environmental Policy Institute; North Carolina Wildlife Federation; North Carolina Fisheries Association, Inc., Plaintiffs- Appellees, and Pungo River Association; Stumpy Point Civic Club; the Pamlico-Tar River Foundation; the Conservation Council of North Carolina, Plaintiffs, v. Wayne A. HANSON, in his official capacity as Wilmington Dist. Engineer; John O. Marsh, in his official capacity as Sect. of U.S. Dept. of Army; William R. Gianelli, in his official capacity as Asst. Sect. of U.S. Dept. of Army; Joseph K. Bratton, Lt. Gen., in his off. capacity as Chief of Engineers; William D. Ruckelshaus, in his official capacity as Admr. of U.S. Environmental Protection Agency; Charles R. Jete, in his off. capacity as Regional Admr. of U.S. Environmental Protection Agency, Defendants-Appellants, Peat Methanol Association; Prulean Farms, Inc; First Colony Farms, Inc., Defendants-Appellees, Peat Energies Company, Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 313

859 F.2d 313

28 ERC 1560, 18 Envtl. L. Rep. 21,509

NATIONAL WILDLIFE FEDERATION; Environmental Policy Institute; North Carolina Wildlife Federation North Carolina Fisheries Association Inc., Plaintiffs- Appellees and Pungo River Association; Stumpy Point Civic Club; the Pamlico-Tar River Foundation; the Conservation Council of North Carolina, Plaintiffs, v. Wayne A. HANSON, in his official capacity as Wilmington Dist. Engineer; John O. Marsh, in his official capacity as Sect. of U.S. Dept. of Army; William R. Gianelli, in his official capacity as Asst. Sect. of U.S. Dept. of Army Joseph K. Bratton, Lt. Gen., in his off. capacity as Chief of Engineers; William D. Ruckelshaus, in his official capacity as Admr. of U.S. Environmental Protection Agency; Charles R. Jete, in his off. capacity as Regional Admr. of U.S. Environmental Protection Agency, Defendants-Appellants, Peat Methanol Association; Prulean Farms, Inc; First Colony Farms, Inc., Defendants-Appellees, Peat Energies Company, Amicus Curiae.

No. 87-3183.

United States Court of Appeals, Fourth Circuit.

Argued May 3, 1988.

Decided Oct. 14, 1988.

Rehearing and Rehearing In Banc Denied Dec. 14, 1988.

Maria A. Iizuka (Roger J. Marzulla, Acting Asst. Atty. Gen., Jean A. Kingrey, Jacques B. Gelin, Dept. of Justice, Washington, D.C., J. Douglas McCullough, Acting U.S. Atty., Stephen A. West, Asst. U.S. Atty., Raleigh, N.C., Gail Cooper, U.S. E.P.A., Martin Cohen, U.S. Army Corps of Engineers, Washington, D.C., on brief), for defendants-appellants.

David L. Rose (Jerry Jackson, Fisheries and Wildlife Div., Nat. Wildlife Federation, on brief), Andrea Ann Timko (Carl Willner, Wilmer, Cutler & Pickering; Washington, D.C., Amos C. Dawson, III, Maupin, Taylor, Ellis & Adams, P.A., Raleigh, N.C., on brief), W.B. Carter, Jr. (Carter, Archie & Hassell, Washington, D.C., Robert H. Blank, Thomas T. Andersen, Peeples, Earl & Blank, P.A., Miami, Fla., on brief), for plaintiffs-appellees. (Thomas N. Barefoot, Julian D. Bobbitt, Jr., Michael W. Hubbard, Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, Raleigh, N.C., on brief), for amicus curiae.

Before CHAPMAN and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

BUTZNER, Senior Circuit Judge:

The Environmental Protection Agency (EPA) and the Army Corps of Engineers appeal from a district court order awarding attorneys' fees to the National Wildlife Federation and several other environmental groups (collectively NWF) who challenged the Corps' determination that two tracts of land in North Carolina were not wetlands under section 404 of the Clean Water Act. The NWF also complained about the EPA's failure to exercise its authority with respect to wetlands. We affirm the district court's award of fees under the Clean Water Act and hold that the NWF is a prevailing party entitled to attorneys' fees. We also affirm the district court's refusal to assess fees against the private parties. Finally, we hold that the district court did not abuse its discretion in its computation of fees, except that the district court should have based the fee award on historic rates, instead of current rates. We therefore vacate that portion of the district court's judgment and remand for recomputation of attorneys' fees using historic rates.

I

This case involved a dispute over two tracts of land in eastern North Carolina. In addition to complaining that the federal defendants improperly determined that tract 1 was not wetlands, NWF alleged that Prulean Farms, Inc., owner of tract 2, was illegally discharging dredged and fill material onto tract 2 and that the Corps illegally condoned Prulean's actions. Peat Methanol Associates and First Colony Farms later intervened as defendants. First Colony owned tract 1 and Peat Methanol planned to construct a peat-to-methanol fuel plant on tract 1.

Shortly after suit was filed the parties entered into a consent decree, resolving the NWF's allegations concerning tract 2. The consent decree satisfied the NWF's ultimate objective of preserving the environmental integrity of tract 2.

With respect to tract 1, the district court held that the federal defendants failed to perform their statutory duties and that the Corps' determination that the property was not wetlands was arbitrary and capricious. The court remanded to the Corps for a proper wetlands determination and enjoined any dredge and filling of tract 1 until a proper determination was made and the necessary permits were obtained. National Wildlife Federation v. Hanson, 623 F.Supp. 1539 (E.D.N.C.1985). The court then awarded NWF attorneys' fees, costs, and expert witness fees pursuant to 33 U.S.C. Sec. 1365(d). ^*

II

The government argues that the NWF's suit did not qualify as a citizen suit under section 1365(a)(2) because the NWF challenged the Corps' exercise of discretion with respect to wetlands and not the EPA administrator's failure to carry out a mandatory duty.

Sections 404 and 505(a) of the Clean Water Act, 33 U.S.C. Secs. 1344 and 1365(a) must be read together. Section 1344 authorizes the Secretary of the Army acting through the Army Corps of Engineers to regulate the discharge of dredged or fill material into United States waters, including wetlands. The Corps' permit decisions must be based on EPA guidelines. Section 1344(c) authorizes the Administrator of the EPA to block or override a Corps' permit decision. Section 1365(a)(2) authorizes any citizen to commence a civil action "against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator."

It is quite clear that both the Corps and the EPA are responsible for the issuance of permits under the CWA and enforcement of their terms. The Corps has the nondiscretionary duty to regulate dredged or fill material, and to fulfill that duty it must make reasoned wetlands determinations. See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 138-39, 106 S.Ct. 455, 465-66, 88 L.Ed.2d 419 (1985). The Corps has a mandatory duty to ascertain the relevant facts, correctly construe the applicable statutes and regulations, and properly apply the law to the facts. The EPA is ultimately responsible for the protection of wetlands. See Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897 (5th Cir.1983) (reviewing EPA and Corps wetlands determination to ensure that the agencies correctly ascertained the extent of the wetlands on the site in question).

Congress cannot have intended to allow citizens to challenge erroneous wetlands determinations when the EPA Administrator makes them but to prohibit such challenges when the Corps makes the determination and the EPA fails to exert its authority over the Corps' determination. Section 1365(a)(2) should be interpreted in conjunction with Civil Procedure Rule 20 (joinder) to allow citizens to sue the Administrator and join the Corps when the Corps abdicates its responsibility to make reasoned wetlands determinations and the Administrator fails to exercise the duty of oversight imposed by section 1344(c).

In view of our conclusion that the district court had jurisdiction, we need not consider NWF's alternative argument invoking res judicata.

III

The government also argues that the NWF is not entitled to attorneys' fees under the CWA because the court reviewed the Corps' wetlands determination under Administrative Procedure Act standards and that Act does not provide for attorneys' fees.

The CWA does not establish the standards for reviewing either the EPA's or the Corps' wetlands determinations. The appropriate standards are set forth in the Administrative Procedure Act, 5 U.S.C. Sec. 701 et seq., which provides that a court "shall set aside agency findings, conclusions and actions that are arbitrary, capricious or an abuse of discretion." See Avoyelles, 715 F.2d at 904. The district court's review of the Corps' wetlands determination under APA standards was proper and did not alter the jurisdictional base of the court's judgment. See Roosevelt Campobello Int'l Park Comm'n v. EPA, 711 F.2d 431, 433-37 (1st Cir.1983); Sierra Club v. Army Corps of Engineers, 701 F.2d 1011, 1032 (2d Cir.1983).

IV

The government assigns error to the district court's decision that the NWF is a prevailing party within the meaning of section 1365(d). Specifically, the government argues that because the district court's judgment on the merits was not final, the NWF has not yet prevailed and it will not prevail until the Corps issues a final determination that tract 1 is wetlands. The government relies on a number of cases in which the courts held that an award of fees was premature when successful parties on appeal had secured remands but had not yet prevailed on the ultimate issues. Typical of these is Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980). In that case, the Court held that a civil rights plaintiff was not entitled to an interim award of attorneys fees because he had succeeded only in having a directed verdict reversed. The defendant's liability had not been established.

Hanrahan explained that a fee claimant may nonetheless be a prevailing party without having obtained a final judgment. The Court stated that interim fees are appropriate when parties have prevailed by vindicating rights through a consent judgment or without formally obtaining relief. Interim fees are also appropriate where the fee claimant has established the liability of the opposing party but no remedial orders have been entered. 446 U.S. at 756-58, 100 S.Ct. at 1988-89.

In applying Hanrahan, it is important to distinguish between traditional civil cases and environmental litigation, for if we do not interpret "prevailing" in light of the goals of the Clean Water Act, the legislative purpose in awarding fees will be frustrated. See Conservation Law Foundation v. Secretary of the Interior, 790 F.2d 965, 967-68 (1st...