ELR Citation: ELR 21264
No(s). C 87-6063 TEH (N.D. Cal. Jul 31, 1989)

The court holds that plaintiffs are entitled to $74,973 in interim attorney fees under the Equal Access to Justice Act for their challenge to a Corps of Engineers' wetlands determination under the Federal Water Pollution Control Act (FWPCA). The court holds that 48.25 hours to prepare plaintiffs' partial summary judgment brief and supporting affidavits is reasonable. The court holds that 38 hours on pre-complaint activities was reasonable. These activities included reviewing FWPCA cases and regulations, telephone calls and meetings with the Environmental Protection Agency and the Corps, and Freedom of Information Act requests. The court holds that plaintiffs' attorneys reasonably spent 21 hours preparing a three-page settlement letter to the Corps, but certain redundant and nonproductive work must be deleted from the hourly total. The court holds that the Corps must compensate plaintiffs for time spent litigating against the port seeking to perform dredge and fill operations. Although the port may have pressed different points than the Corps, almost all the litigation has focused on the Corps' decision to disclaim jurisdiction. The court holds that the number of hours requested for work on the fee application is reasonable, although it is approaching the time spent on the merits. The court next finds that plaintiffs could not have found alternative counsel with the necessary expertise who would have been willing to take this case at the $75 statutory rate. Recent Ninth Circuit authority suggests that this finding is necessary to support a rate exceeding $75 per hour. The court declines to reconsider its holding that plaintiffs are not entitled to attorney fees under the FWPCA.

[Previous decisions in this litigation are published at 18 ELR 20992 and 21401 and 20 ELR 21261.]

Counsel are listed at 20 ELR 21262.