Sierra Club v. Marsh

• Decision Date: 16 July 1986
• Docket Number: Civ. No. 84-0366 B,84-0388 B.
• Citation: 639 F. Supp. 1216
• Parties: SIERRA CLUB, Plaintiff, v. John L. MARSH, Jr., et al., Defendants. SIERRA CLUB, et al., Plaintiffs, v. Elizabeth H. DOLE, et al., Defendants.
• Court: U.S. District Court — District of Maine

639 F. Supp. 1216

SIERRA CLUB, Plaintiff, v. John L. MARSH, Jr., et al., Defendants.

SIERRA CLUB, et al., Plaintiffs, v. Elizabeth H. DOLE, et al., Defendants.

Civ. Nos. 84-0366 B, 84-0388 B.

United States District Court, D. Maine.

July 16, 1986.

Peter L. Koff, Edward F. Lawson, Weston, Patrick, Willard & Redding, Boston, Mass., Richard A. Spencer, Drummond, Woodsum, Plimpton & MacMahon, Portland, Me., for defendants.

Ralph A. Child, Asst. U.S. Atty., Chief, Civil Div., Boston, Mass., F. Mark Terison, Asst. U.S. Atty., Portland, Me., for defendants in 84-0366 B.

Cabanne Howard, Asst. Atty. Gen., Augusta, Me., for intervenor St. of Maine.

Sylvia Sepulveda-Hambor, Atty., Dept. of Justice, Gen. Litigation Section, Land & Natural Resources Div., Washington, D.C., for federal defendants in 84-0366 B, 84-0388 B.

Cabanne Howard, Asst. Atty. Gen., Augusta, Me., for Maine Dept. of Transp.

F. Mark Terison, Asst. U.S. Atty., Portland, Me., for federal defendants in 84-0388 B.

MEMORANDUM OF OPINION AND ORDER OF THE COURT

GIGNOUX, Senior District Judge.

Presently before the Court are motions of plaintiff Sierra Club for an award of attorneys' fees and expenses in these two related actions, pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. The motions are supported by affidavits and detailed timesheets. Defendants object to plaintiff's entitlement to any award in Civil No. 84-0366 B, and to the amounts requested in both actions. A hearing has been held, and counsel have submitted written and oral arguments. To the extent hereinafter set forth, plaintiff's requests for attorneys' fees and expenses are granted.

I. Background of the Cases

No. 84-0366 B (Sierra I). In No. 84-0366 B (Sierra I), plaintiff charged that actions by the United States Army Corps of Engineers and the Federal Highway Administration (collectively "the agencies") in issuing a dredge and fill permit and providing federal funds for the construction of a $25 million port facility, causeway an access road at Sears Island, Maine (the Project) violated the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq. (Count I); the Clean Water Act, 33 U.S.C. § 1251 et seq. (Count II); Executive Order 11990, 42 Fed.Reg. 26961 (May 24, 1977) (Count III); the Fish and Wildlife Coordination Act, 16 U.S.C. § 661 et seq. (Count IV); and the Federal-Aid Highway Act, 23 U.S.C. § 101 et seq. (Count V). Named as defendants were the Secretary of the Army, the New England Division Engineer of the Corps, the Secretary of Transportation and the Division Administrator of FHWA (collectively "the federal defendants"). The State of Maine through the Maine Department of Transportation (MeDOT) subsequently intervened as a defendant.

After a detailed review of the administrative record, this Court found firm support for the agencies' findings, based on Environmental Assessments (EA's), that the Project would have no significant impact on the quality of the human environment (FONSIs) and their decisions not to prepare an Environment Impact Statement (EIS). Accordingly, this Court concluded that the decision to proceed without the preparation of an EIS was not a violation of NEPA. The Court also found no violation by defendants of the Clean Water Act, Executive Order 11990, the Fish and Wildlife Coordination Act, or the Federal-Aid Highway Act. The Sierra Club appealed.

On August 9, 1985, the First Circuit Court of Appeals vacated this Court's decision. Sierra Club v. Marsh, 769 F.2d 868 (1st Cir.1985) (Sierra Club I). The Court of Appeals found that the agencies had failed to consider the secondary impacts of the Project, i.e., the significant effect on the environment of further industrial development on Sears Island that would result from the construction of the port and causeway. Id. at 877-82. The court concluded that the FONSIs were unsupportable, and that the decision to proceed without the preparation of an EIS was a violation of NEPA. Id. at 881-82. The Court of Appeals did not address the claims made by plaintiff in Counts II, III, IV and V of the complaint.

No. 84-0388 B (Sierra II). In No. 84-0388 B (Sierra II), plaintiff charged that the Coast Guard acted arbitrarily and capriciously in issuing a "bridge" permit under the General Bridge Act of 1946, 33 U.S.C. § 525(b), for the construction of the causeway portion of the Project (Count I), and violated NEPA by failing to prepare an EIS before issuing the permit (Count II). Named as defendants were the Secretary of Transportation and the Commandant of the Coast Guard (collectively "the federal defendants"), and MeDOT. Following review of the administrative record, this Court held that the Coast Guard acted arbitrarily and capriciously in issuing a "bridge" permit for the construction of the causeway. The Court revoked the permit and enjoined the issuance of a further permit under the General Bridge Act. The Court did not address the NEPA issues also raised by plaintiff.

The federal defendants did not appeal this Court's ruling, but MeDOT did. On December 23, 1985, the Court of Appeals affirmed the revocation of the "bridge" permit by this Court. Sierra Club v. Secretary of Transportation, 779 F.2d 776 (1st Cir.1985) (Sierra Club II).

Following the Court of Appeals decision in Sierra II, on January 21, 1986, plaintiff filed the present motions for an award of attorneys' fees and expenses under the EAJA. In Sierra I, plaintiff seeks $49,628.87 in attorneys' fees and $1,861.79 in expenses. In Sierra II, plaintiff requests $38,054.22 in attorneys' fees and $566.27 in expenses.

The motions present two central issues: first, is Sierra Club entitled to an award of attorneys' fees and expenses under the EAJA in Sierra I (defendants have conceded plaintiff's entitlement to such an award in Sierra II); and, second, if warranted, what is the amount of attorneys' fees and expenses to be awarded.

II. Entitlement to Attorneys' Fees and Expenses in Sierra I

The EAJA provides for an award of attorneys' fees and expenses to a prevailing party other than the United States, "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A).¹ Defendants concede that Sierra Club is the "prevailing party" on the NEPA claim in Sierra I, within the meaning of Section 2412(d)(1)(A).² Nor do they dispute that Sierra Club meets the definition of a "party" eligible to make an EAJA claim, under Section 2412(d)(2)(B). Defendants strenuously argue, however, that the position of the government both in the litigation and in the underlying agency actions was substantially justified, and therefore plaintiff is not entitled to an award of attorneys' fees and expenses. The Court must disagree.

In this Circuit, the controlling legal principles have been recently established. The test for determining whether the government's position was "substantially justified" is one of reasonableness: "did the government have a reasonable basis for the facts alleged; did it have a reasonable basis in law for the theories advanced; and did the facts support its theory." United States v. Yoffe, 775 F.2d 447, 450 (1st Cir. 1985).³ The government has the burden of proving that its position was substantially justified by a preponderance of the evidence, and the fact that the government lost does not give rise to a presumption that its position was not substantially justified. Id. The test of reasonableness "represents a middle ground between an automatic award of fees to a prevailing party and an award made only when the government's position was frivolous." Id.

The opinion of the Court of Appeals in this case precludes a finding by this Court that the government's position, either in the litigation or in the agency actions which gave rise to the litigation, was substantially justified. The Court of Appeals made its own independent review of the administrative record for the purpose of deciding whether the agencies' FONSIs and decisions not to prepare an EIS were lawful. 769 F.2d at 872. In undertaking that review, the court stated that "the court in a case like this must essentially look to see if the agency decision, in the context of the record, is too `unreasonable' (given its statutory and factual context) for the law to permit it to stand." Id. at 871 (emphasis supplied). In its consideration of the lawfulness of the agencies' findings that the Project will have no significant impact on the environment, the court again defined the legal issue to be "whether the record reveals that conclusion to be unreasonable, to the point where the decision not to prepare an EIS either violates NEPA or (what here comes to the same thing) is `arbitrary, capricious, an abuse of discretion.'" Id. at 876 (emphasis supplied) (citation omitted). After a detailed review of the administrative record, the court concluded that "given the likely secondary effects of the Sears Island project and the other effects previously described, the record in this case cannot support a FONSI and therefore an EIS must be prepared." Id. at 881-82. This conclusion was based on the court's finding that the agencies could not "reasonably conclude" that the Project, including its secondary effects, would have no significant impact on the environment. Id. at 880. Accordingly, this Court cannot say that the government's position was reasonable and therefore substantially justified.

Plaintiff is entitled, as the prevailing party, to an award of attorneys' fees and expenses under the EAJA in Sierra I.

III. Amount of Attorneys' Fees

In determining the amount of a reasonable award of attorneys' fees, the Court of Appeals has adopted the "lodestar" approach. Futado v. Bishop, 635 F.2d 915, 919-21 (1st Cir.), cert. denied, 444 U.S. 1035, 100 S.Ct. 710, 62 L.Ed.2d 672 (1980). See also Codex Corporation v. Miligo Electronic Corporation, 541 F.Supp. 1198,...