ELR Citation: ELR 21261
No(s). C 87-6063 TEH (N.D. Cal. Aug 30, 1988)

The court holds that an environmental group is entitled to attorney fees under the Equal Access to Justice Act (EAJA) for their successful challenge to a Corps of Engineers' wetlands determination under the Federal Water Pollution Control Act (FWPCA). The court first holds that plaintiffs are not entitled to fees under FWPCA §505(a)(1), since plaintiffs could not sue the Corps directly under that section. However, the court holds that plaintiffs may seek attorney fees under the EAJA. The court holds that fees may be awarded under the EAJA before a final judgment is issued. Interim fees may be awarded if the moving party has prevailed on the merits of a central issue. The court holds that plaintiffs are prevailing parties under the EAJA. The court rules that plaintiffs prevail when they obtain a court judgment that identifies a substantial flaw with an agency's interpretation of law or weighing of facts. Plaintiffs obtained a ruling that the Corps' wetlands determination was arbitrary and capricious. On remand, the Corps must make a new wetlands determination in accordance with the court's interpetation of the Corps' regulations. Although plaintiffs have not yet achieved their ultimate goal of stopping the dredging and filling, they prevailed on one of the central issues in the litigation. The court next determines that plaintiffs' attorneys are entitled to $160 per hour. An increase above the $75 per hour limit in the EAJA is justified based on the specialized skill required for the practice of environmental law. The court holds that plaintiffs are not entitled to an award of attorney fees against the port seeking to perform dredge and fill operations. Plaintiffs have not yet prevailed against the port, since they have only temporarily removed the port's defense to the enforcement action.

[Previous decisions in this litigation are published at 18 ELR 20992 and 21401.]

Counsel for Plaintiffs
Alan Waltner, Thomas Roy Gorman
Gorman & Waltner
1736 Franklin St., 8th Fl., Oakland CA 94612
(415) 465-4494

Counsel for Defendants
Gail Cooper
Office of the General Counsel
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-2090

Karen L. Egbert, Donald A. Carr, Thomas R. Lotterman
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Francis B. Boone, Ass't U.S. Attorney
Federal Bldg., 450 Golden Gate Ave., Rm. 16201, San Francisco CA 94102
(415) 556-1126