U.S. v. Maine Dept. of Transp., Civ. No. 96-0249-B.

• Decision Date: 17 September 1997
• Docket Number: Civ. No. 96-0249-B.
• Citation: 980 F.Supp. 546
• Parties: UNITED STATES of America, Plaintiff, v. MAINE DEPARTMENT OF TRANSPORTATION, Bridgecorp, f/k/a Bridge Construction Corp., Robert Wardwell & Sons, Inc., and T.Y. Lin International, successor to Hunter Ballew Associates, Defendants, and Sierra Club and Conservation Law Foundation, Plaintiff-Intervenors.
• Court: U.S. District Court — District of Maine

980 F.Supp. 546

UNITED STATES of America, Plaintiff, v. MAINE DEPARTMENT OF TRANSPORTATION, Bridgecorp, f/k/a Bridge Construction Corp., Robert Wardwell & Sons, Inc., and T.Y. Lin International, successor to Hunter Ballew Associates, Defendants and Sierra Club and Conservation Law Foundation, Plaintiff-Intervenors.

Civ. No. 96-0249-B.

United States District Court, D. Maine.

September 17, 1997.

Daniel W. Pinkston, U.S. Dept. of Justice, Environmental Defense Section, Washington, DC, for Plaintiff USA.

James T. Kilbreth, Verill & Dana, Portland, ME, for Maine Dept. of Transp.

Edward F. Lawson, Weston, Patrick, Willard & Redding, Boston, ME, Jeffrey A. Thaler, Bernstein, Shur, Sawyer & Nelson, Portland, ME, for Sierra Club.

Daniel L. Sosland, Conservation Law Foundation, Rockland, ME, for Conservation Law Foundation.

ORDER AND MEMORANDUM OF DECISION

BRODY, District Judge.

Defendant, Maine Department of Transportation ("Maine DOT"), brings this Motion to Dismiss an application for attorneys' fees and costs brought by Plaintiff-Intervenors, the Sierra Club and the Conservation Law Foundation ("CLF"), pursuant to the Clean Water Act ("CWA"), 33 U.S.C. § 1365(d). For the reasons set forth below, Defendant's Motion is granted. Since the Court holds that the Sierra Club and CLF are not entitled to recover attorneys' fees and costs under 33 U.S.C. § 1365(d), it does not reach the issue of whether or not the Eleventh Amendment bars any such award.

I. BACKGROUND

On July 18, 1994, the Sierra Club and CLF sent 60-day notice of intent to sue letters¹ to Defendants Maine DOT, Robert Wardwell & Sons, Inc. ("Wardwell Construction"), Bridge Construction Corp. ("Bridge Construction"), and T.Y. Lin International ("T.Y. Lin"), formerly Hunter Ballew Associates,² alleging various violations of the Clean Water Act in connection with the construction of an access road and terminal site on Sears Island. The letters advised Defendants that in the course of constructing the access road and terminal site they had illegally altered and filled wetlands on Sears Island. Plaintiff-Intervenors also sent a copy of the 60-day notice letter to the Environmental Protection Agency ("EPA").

Rather than commencing a civil enforcement action against Defendants prior to the expiration of the 60-day notice deadline, the United States of America ("United States") entered into settlement discussions with Defendants, the Sierra Club, and CLF. These negotiations lasted until November 1996. To ensure that the statute of limitations would not expire during these discussions, the parties entered into a Tolling Agreement, which was extended repeatedly as necessary.

On November 13, 1996, the United States filed a civil enforcement action against Defendants in this Court pursuant to 33 U.S.C. § 1319. On the same day, the United States filed a Consent Decree with the Court to which the United States, Defendants, the Sierra Club, and CLF were parties. Also on the same day, the Sierra Club and CLF moved to intervene, without filing a complaint, in the United States' enforcement suit. This motion was unopposed.

The Court approved the Consent Decree on April 9, 1997. The Decree requires Defendant Maine DOT to restore 3.2 acres of wetlands at the cargo terminal site on Sears Island, restore and enhance a 0.75 acre wetland on south-central Sears Island, provide streambank stabilization and wetlands enhancement at Dyer Creek in North Newcastle, Maine, and expend at least $ 100,000 on the acquisition and conservation of Atlantic Salmon habitat on the Ducktrap River. The Consent Decree further requires Defendants to pay a $10,000 civil penalty.

On May 7, 1997, the Sierra Club and CLF filed an application to recover costs and attorneys' fees from Defendants pursuant to 33 U.S.C. § 1365(d). Plaintiff-Intervenors contend that they are "prevailing parties" under 33 U.S.C. § 1365(d), entitled to recover attorneys' fees and costs from the date of the 60-day notice of intent to sue letters. Plaintiff-Intervenors further contend that any such award of fees and costs is not barred by the Eleventh Amendment. Maine DOT moved to dismiss this application,³ arguing that Plaintiff-Intervenors are not "prevailing parties" in an action brought under section 1365, and that even if the Sierra Club and CLF are entitled to attorneys' fees and costs under subsection 1365(d), any such award is barred by the Eleventh Amendment.

II. DISCUSSION

A prevailing party is generally not entitled to recover attorneys' fees in the absence of a statute which allows such an award. Alyeska Pipeline Service Co. v. Wilderness Soc'y, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975); Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 484 F.2d 1331, 1332 (1st Cir.1973). Plaintiff-Intervenors seek to recover attorneys' fees and costs pursuant to the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365. Subsection 1365(d) provides that:

The 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.

33 U.S.C. § 1365(d).

Defendant Maine DOT argues that under the plain language of this section, Plaintiff-Intervenors are not entitled to recover attorneys' fees and costs. Subsection 1365(d) unambiguously authorizes an award of fees only "in any action brought pursuant to this section." (emphasis added). Plaintiff-Intervenors never brought an action pursuant to 33 U.S.C. § 1365. Instead, after sending 60-day notice letters to Defendants and EPA, Plaintiff-Intervenors participated in settlement discussions with the other parties and intervened in the United States' civil enforcement suit brought pursuant to 33 U.S.C. § 1319. As a result, Plaintiff-Intervenors' fee application falls outside of the statutory authorization of fees in subsection 1365(d).

In addition, Plaintiff-Intervenors are not "prevailing or substantially prevailing" parties as required by subsection 1365(d). Parties are considered "prevailing parties" for the purposes of attorneys' fees "if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978) (interpreting the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988); Public Interest Research Group of New Jersey. Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir.1995) (interpreting 33 U.S.C. § 1365(d)). Not only did Plaintiff-Intervenors never litigate under section 1365, but in addition, Plaintiff-Intervenors did not seek any additional relief beyond that sought by the United States when they intervened in the United States' enforcement action. While Plaintiff-Intervenors did participate in settlement discussions, it is the United States, not Plaintiff-Intervenors, that "prevailed" in this litigation. See United States v. Hooker Chemicals & Plastics Corp., 591 F.Supp. 966, 968 (W.D.N.Y.1984) (rejecting intervenors' claim for attorneys' fees where their participation did not result in any change to the settlement agreement).

The policy considerations underlying the citizen suit provision of the Clean Water Act further support a denial of Plaintiff-Intervenors' fee application. The requirement that a citizen file a letter of intent to sue sixty days before bringing a private enforcement action indicates that Congress intended citizen suits under 33 U.S.C. § 1365 to "supplement rather than to supplant governmental action." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 60, 108 S.Ct. 376, 382, 98 L.Ed.2d 306 (1987). The Supreme Court has noted that "citizen suits are proper only `if the Federal, State, and local agencies fail to exercise their enforcement responsibility.'" Id. (quoting S.Rep. No. 92-414, at 64 (1971), reprinted in 2 A Legislative History of the Water Pollution Control Act Amendments of 1972, at 1482 (1973)).

The evidence demonstrates that the United States exercised its enforcement responsibility. Within a few weeks after receiving Plaintiff-Intervenors' 60-day notice letter, the EPA referred the case to the Department of Justice, which, in turn, met with Defendants and Plaintiff-Intervenors to discuss settlement negotiations. In order to ensure that the statute of limitations would not expire before these negotiations concluded, the United States and all of the other parties agreed to a Tolling Agreement. The First Circuit has held that the primary purpose of fee awards under the Clean Water Act is not punishment, but the promotion of citizen enforcement. See Roosevelt Campobello Int'l Park Comm'n v. United States Environmental Protection Agency, 711 F.2d 431, 434 (1st Cir.1983) (citing Natural Resources Defense Council v. Environmental Protection Agency, 484 F.2d 1331, 1338 (1st Cir.1973)). Since there was no need for citizen enforcement in this case, there is no basis for an award of attorneys' fees.

Plaintiff-Intervenors put forth three arguments in favor of a fee award. First, Plaintiff-Intervenors contend that the filing of a 60-day notice letter constitutes commencing an "action" under section 1365. The three cases Plaintiff-Intervenors cite, however, are factually distinct from the current case. In Student Public Interest Research Group v. Monsanto Co., 721 F.Supp. 604, 615 (D.N.J. 1989), the court held that the Clean Water Act's statutorily mandated 60-day notice letter provision constituted the beginning of the litigation for purposes of calculating an award of attorneys' fees. After filing a 60-day notice letter, however, the public interest groups in Monsanto commenced a lawsuit against the defendant pursuant to 33 U.S.C § 1365, and litigated for several years while the EPA took no action. Id. at 608. In contrast, here, the EPA...