Sierra Club v. City of Little Rock, 03-1160.

• Decision Date: 12 December 2003
• Docket Number: No. 03-1160.,03-1160.
• Citation: 351 F.3d 840
• Parties: SIERRA CLUB, Appellee, v. CITY OF LITTLE ROCK, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

351 F.3d 840

SIERRA CLUB, Appellee, v. CITY OF LITTLE ROCK, Appellant.

No. 03-1160.

United States Court of Appeals, Eighth Circuit.

Submitted: June 11, 2003.

Filed: December 12, 2003.

COPYRIGHT MATERIAL OMITTED

Beth Blevins Carpenter, Little Rock, AR, for appellant.

G. Kumpe, Little Rock, AR (Sarah M. Priebe and Hank Bates, on the brief), for appellee.

Before MELLOY, HANSEN, and SMITH, Circuit Judges.

HANSEN, Circuit Judge.

The City of Little Rock appeals the district court's award of attorney fees to the Sierra Club in Sierra Club's action against the City and against the Little Rock Sanitary Sewer Committee¹ under the Clean Water Act, 33 U.S.C. §§ 1251-1387. The City also appeals the district court's denial of its request for expert fees. We reverse the grant of attorney fees and affirm the denial of expert fees.

I.

The City of Little Rock ("the City") operates a Municipal Separate Storm Sewer System in the city of Little Rock, Arkansas, pursuant to a National Pollutant Discharge Elimination System (NPDES) permit issued by the Arkansas Department of Environmental Quality (ADEQ).² The permit authorizes the City to discharge storm water runoff into the Arkansas River. The permit requires the City to effectively prohibit non-storm water discharges (i.e., sewage) into the Storm Sewer System. The storm water permit also requires the City to operate a Storm Water Quality Management Program, which includes controls necessary to reduce the discharge of pollutants to the maximum extent practicable, a defined term under the permit. The permit further requires the City to utilize "a comprehensive master planning process" related to reducing the discharge of pollutants from areas of new development. (Appellant's App. at 394.)

The City has delegated the operation of the Little Rock Sanitary Sewer Collection System to the Little Rock Sanitary Sewer Committee (hereinafter "Sewer Committee") pursuant to Arkansas statute. See Ark.Code Ann. § 14-235-206(a)(1)(A) ("The construction, acquisition, improvement, equipment, custody, operation, and maintenance of any works for the collection, treatment, or disposal of sewage and the collection of revenue from it for the service rendered by it, shall be effected and supervised by a committee to be designated for that purpose by the municipal council."). The Sewer Committee has control over the operation and maintenance of the Sanitary Sewer Collection System and control over revenues collected from the use of the system. To the extent funds in excess of the revenues generated from use of the system are needed to operate and maintain the Sanitary Sewer Collection System, the City retains authority to issue bonds or authorize rate increases. The Sewer Committee likewise operates pursuant to a NPDES permit.

The Sierra Club, a national non-profit public interest organization, brought a citizens' complaint against the City and the Sewer Committee, alleging that the defendants violated the Clean Water Act and their respective permits by allowing untreated sewage from the Sanitary Sewer Collection System to overflow (referred to throughout the litigation as sanitary sewer overflows) on numerous occasions and enter Arkansas rivers and streams. The Sierra Club's second cause of action alleged that the City failed to follow the comprehensive master planning process mandated by the City's NPDES permit. The Sierra Club alleged in its third cause of action that the sanitary sewer overflows also violated the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. ("RCRA"), by creating imminent and substantial endangerment to the environment. The district court granted partial summary judgment to Sierra Club against the Sewer Committee, finding that it had violated the Clean Water Act, a strict liability statute, by allowing the sanitary sewer overflows. See 33 U.S.C. § 1311(a). The Sewer Committee and Sierra Club entered into a Settlement Agreement to address the sanitary sewer overflows. Sierra Club dismissed the other counts against the Sewer Committee pursuant to the Settlement Agreement.

Sierra Club pursued its claims against the City following the Settlement Agreement with the Sewer Committee. On cross-motions for summary judgment, the district court found that "the City [wa]s in violation of the portion of its permit which relates to sanitary sewer overflows into the municipal storm sewer system" (Appellant's App. at 265), but refused to enter an injunction or order any other remedy against the City. The court retained jurisdiction "to resolve any issues which may develop regarding remedies for permit violations." (Id.) The court subsequently held a bench trial, found for the City on Sierra Club's other claims, and ordered the case closed. (Id. at 400.)

Following the district court's disposition of the case, Sierra Club moved for an award of attorney fees against the Sewer Committee and the City. The City sought an award of expert witness fees against Sierra Club related to its successful defense of the comprehensive master planning process portion of the case. The district court denied the City's request, holding that as a prevailing defendant, the City had failed to establish that Sierra Club's action was frivolous, unreasonable, or without foundation. The court granted Sierra Club the full amount of attorney fees ($92,635) sought against the Sewer Committee, which award is not involved in this appeal, and granted 50% of the fees sought against the City to reflect the City's partially prevailing status. The City appeals the district court's denial of its motion for expert witness fees and its judgment ordering the City to pay $50,308.09 in attorney fees to Sierra Club.

II.

The Clean Water Act allows "any citizen to commence a civil action on his own behalf" against any governmental entity that has allegedly violated the Clean Water Act. 33 U.S.C. § 1365(a). The district court is authorized to enforce the violated standard or limitation and order civil penalties. Id. The Clean Water Act also provides that "[t]he [district] 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." § 1365(d). While we review the district court's decision regarding an award of costs and fees under the Clean Water Act for an abuse of discretion, the issue of whether a party is a "prevailing or substantially prevailing party" is an issue of law we review de novo. See Armstrong v. ASARCO, Inc., 138 F.3d 382, 388 (8th Cir.1998).

A. Sierra Club's Motion for Attorney Fees

The City appeals the district court's award of $50,308.09 in attorney fees to Sierra Club, arguing that Sierra Club is not a substantially prevailing party. In granting partial summary judgment in favor of Sierra Club on the issue of whether the City violated its permit in allowing the sanitary sewer overflows to occur unabated, the court determined that the regulations under the Clean Water Act required the operator of a storm sewer system ultimately to either entirely eliminate nonstorm water discharges into the storm sewers or seek a permit allowing a certain number of non-storm water discharges. The court found that the City was "technically in violation of its permit" (Appellant's App. at 333), given the length of time and the number of sanitary sewer overflows that had continued unabated. Despite the violation, the district court declined to award any of the relief Sierra Club sought, which included in relevant part: a declaration that the City was in violation of the Clean Water Act; an injunction ordering the City to comply with its permit, to cease all unlawful discharges, and to clean up prior unlawful discharges; and civil penalties up to $25,000 per day. (Id. at 33-35.) In denying Sierra Club's request for an injunction, the court noted that there was no evidence that the City would not cooperate with the Sewer Committee in carrying out the Sewer Committee's obligations under the Settlement Agreement, as the only record evidence showed that the City had always complied with the Sewer Committee's reasonable requests in the past. (Id. at 333-34.)

Under the American Rule, parties to a lawsuit generally foot their own attorney fees "absent explicit statutory authority" to the contrary. Buckhannon Bd. & Care Home, Inc. v. W.V. Dep't of Health & Human Res., 532 U.S. 598, 602, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). The Clean Water Act explicitly allows an award of attorney fees to "a prevailing or substantially prevailing party." 33 U.S.C. § 1365(d). A party prevails either by "obtain[ing] an enforceable judgment ... or comparable relief through a consent decree or settlement ... [that] directly benefit[s the plaintiff] at the time of the judgment or settlement." Farrar v. Hobby, 506 U.S. 103, 111, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (internal citations omitted). The Supreme Court has made clear "`that a plaintiff [must] receive at least some relief on the merits of his claim before he can be said to prevail,'" Buckhannon, 532 U.S. at 603-04, 121 S.Ct. 1835 (quoting Hewitt v. Helms, 482 U.S. 755, 760, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987)), such that the relief "materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar, 506 U.S. at 111-12, 113 S.Ct. 566. Further, the change in the relationship must be "judicially sanctioned;" a voluntary change in the relationship between the parties as a result of a lawsuit is insufficient to trigger a shift in the general rule that parties pay their own fees. Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835 (rejecting catalyst theory of awarding attorney fees under prevailing party fee-shifting statutes).

Sierra Club can point to no "actual relief on the merits" as...