Sierra Club v. Mullen
| Decision Date | 04 October 1985 |
| Docket Number | 83-2595.,Civ. A. No. 83-2592 |
| Citation | 619 F. Supp. 1244 |
| Parties | SIERRA CLUB, et al., Plaintiffs, v. Francis M. MULLEN, Jr., Acting Administrator, Drug Enforcement Administration, et al., Defendants. The NATIONAL ORGANIZATION FOR the REFORM OF MARIJUANA LAWS (NORML), Plaintiff, v. UNITED STATES DRUG ENFORCEMENT ADMINISTRATION (DEA), et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
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Frederick S. Middleton, III, Howard I. Fox, Sierra Club Legal Defense Fund, Kevin B. Zeese, Peter H. Meyers, Eric S. Sirulnik, Washington, D.C., for plaintiffs.
James Draude, Dept. of Justice, Washington, D.C., for defendants.
The above-styled action is before the Court on plaintiff National Organization for the Reform of Marijuana Laws's ("NORML") application for attorneys' fees and costs, pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, defendant United States Drug Enforcement Administration's ("DEA") opposition thereto, NORML's reply to DEA's opposition, DEA's supplemental memorandum in opposition to NORML's fee petition, and the entire record herein. For the reasons set forth below, the Court awards NORML $8,767.55 in attorneys' fees and costs.
In August 1983, DEA used paraquat to eradicate marijuana in the Chattahoochee National Forest in Georgia and in the Daniel Boone National Forest in Kentucky. On September 1, 1983, the Sierra Club, the National Coalition Against the Misuse of Pesticides, and the Friends of the Earth (hereafter collectively "Sierra Club") filed a complaint (Civil Action No. 83-2592) and motion for temporary restraining order, challenging DEA's use of paraquat to eradicate marijuana on public lands.
Sierra Club claimed: (1) that a nationwide program of aerial spraying of paraquat to eradicate marijuana on public lands is a major federal action significantly affecting the quality of the environment and that DEA violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., by failing to prepare an environmental impact statement ("EIS") on such eradication, Sierra Club Complaint ¶¶ 2, 25-31; and (2) that use of paraquat on undeveloped, federal lands and other areas of wildlife habitat is not consistent with the currently approved paraquat label and, therefore, violates the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136 et seq. Sierra Club Complaint ¶¶ 2, 32-35. Sierra Club requested the Court to enjoin defendants from "the aerial application of paraquat on public lands for the eradication of marijuana" until they prepare an EIS and to "enjoin defendants from using paraquat in a manner inconsistent with its label, including the aerial application of paraquat on all Forest Service and public lands and other areas of wildlife habitat." Sierra Club Complaint ¶ 36.
On September 1, 1983, NORML also filed a complaint (Civil Action No. 83-2595) and motion for a temporary restraining order challenging DEA's use of paraquat to eradicate marijuana in the United States. NORML alleged: (1) that defendants violated NEPA by failing to prepare an EIS on the spraying program, NORML Complaint ¶¶ 1, 33-38; (2) that defendants violated regulations of the Council on Environmental Quality ("CEQ"), NORML Complaint ¶¶ 1, 39-42; (3) that defendants violated DEA's environmental assessment, and associated guidelines, NORML Complaint ¶¶ 1, 43-44; (4) that defendants violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq., by failing to publish DEA's finding of no significant impact 30 days prior to spraying, NORML Complaint ¶¶ 1, 44-46; (5) that defendants' conduct was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law, NORML Complaint ¶ 48; (6) that defendants violated the constitutional and civil rights of NORML's members, giving rise to a cause of action under Biven v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and 42 U.S.C. §§ 1983, 1985, NORML Complaint ¶¶ 1, 49-52; and (7) that defendants committed various common law torts, including assault, intentional infliction of emotional distress, and negligence. NORML Complaint ¶¶ 53-55).
NORML sought declaratory and injunctive relief, $10 million compensatory damages, and $20 million punitive damages. NORML Complaint at 21. NORML sought a Court order instructing defendants to prepare an EIS on "the herbicide spraying program in the United States" and to enjoin defendants "from obligating or expending any funds, or providing any other support or assistance to the herbicide spraying program in the United States against marijuana plants." NORML proposed temporary restraining order; NORML Complaint at 21.
Following briefing and argument, on September 13, 1983, this Court entered a temporary restraining order reciting that it appears that aerial spraying of paraquat on public lands by defendants violates the EIS requirement of NEPA and the use restrictions of FIFRA.1 The Court enjoined defendants "from further aerial spraying of paraquat on U.S. federal lands until further hearing in this case can be had."
On September 14, 1983, defendants informed plaintiffs that they would not use paraquat to eradicate marijuana on U.S. federal lands unless and until defendants prepare an EIS on such a program. In light of that development, defendants moved on September 23, 1983, to stay further proceedings in this case until defendants prepared an EIS and filed it with the Court. Sierra Club and NORML opposed defendants' motion.
NORML filed an amended complaint on October 4, 1983. NORML deleted claims regarding constitutional and civil rights violations and common law torts, and added a claim under FIFRA. Amended Complaint ¶¶ 49-51. NORML also dropped its claims for compensatory and punitive damages. Amended Complaint at 19-20.
Upon stipulation of the parties, on November 8, 1983, this Court signed a consent judgment. The consent judgment prohibits the defendants from using, or authorizing the use of, "paraquat to eradicate on U.S. federal lands unless and until defendants prepare an EIS on such use in compliance with the NEPA and regulations of the Council on Environmental Quality." Consent Judgment ¶ 1. Second, defendants agreed not to "use or authorize the use of, paraquat to eradicate marijuana on U.S. federal lands under the paraquat label currently registered with the Environmental Protection Agency pursuant to FIFRA...." Consent Judgment ¶ 2.
As provided in the consent judgment, Consent Judgment ¶ 5, and in compliance with the EAJA, 28 U.S.C. § 2412(d)(1)(B), Sierra Club and NORML submitted applications for attorneys' fees and costs. Sierra Club subsequently settled with the defendants and is no longer a party to this action. NORML requests a sum of $35,512.12, which includes court costs and expenses.
28 U.S.C. 2412(d)(1)(A).
The EAJA authorizes an award of attorneys' fees only to a "prevailing party." 28 U.S.C. § 2412(d)(1)(A). To qualify as a prevailing party, NORML must prevail on some significant issue in the case "which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978); see also Environmental Defense Fund, Inc. v. E.P.A., 716 F.2d 915, 919 n. 7 (D.C.Cir.1983) (). The Court finds that NORML meets this test.
The defendants argue that NORML did not contribute significantly to the litigation by asserting that NORML did not prevail on any of "its" claims. Defendants' Memorandum in Opposition to Plaintiff NORML's Application for an Award of Attorneys' Fees and Expenses ("Defendants' Opposition") at 9. This assertion does not comport with the course of events. After consultation between the two plaintiff groups, Sierra Club and NORML simultaneously filed separate suits against the defendants on September 1, 1983. See Affidavits of Frederick S. Middleton, III; Jay Feldman; and Elizabeth Raisbeck. Their litigation strategy involved pursuing different avenues, yet the destination remained essentially the same. Sierra Club and NORML both sought to enjoin defendants from continuing the paraquat spraying program until such time as they should conform with the provisions of NEPA. Sierra Club Complaint at 16; NORML Complaint at 21; Amended Complaint at 19.
In response to the defendants' motion, this Court ordered, on September 9, 1983, that the two actions be consolidated. Though consolidation under Fed.R.Civ.P. 42(a) does not so completely merge the two cases as to deprive any party of substantial rights that he would have possessed had the actions proceeded separately, NORML was a party to the consent judgment which settled the litigation between all the parties. See Midwest Community Council v. Chicago Park District, 98 F.R.D. 491 (D.C. Ill.1983).
The consent judgment afforded NORML most of the relief they sought. Amended Complaint at 19. Furthermore, a comparison of the relief requested by NORML in its original complaint with that sought in its Amended Complaint reveals the fallacy of the defendants' assertion that NORML merely...
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