ELR Citation: ELR 20148
No(s). s. 83-2592, -2595 (D.D.C. Oct 4, 1985)

In a petition for attorney fees for work on a case involving paraquat spraying of marijuana on federal lands by the Drug Enforcement Administration (DEA), the court rules that the National Organization for the Reform of Marijuana Laws (NORML) is a prevailing party and entitled to fees to the extent its work did not duplicate that of another organization, that the government's litigation position was not substantially justified, and that NORML is not entitled to upward adjustment of the lodestar figure except with respect to a cost of living increase. The court first rules that NORML is a prevailing party under the Equal Access to Justice Act. The court rejects defendant's arguments that NORML filed was similar to a case filed by the Sierra Club the same day, the litigation strategies pursued by the two groups were different. In addition, at least one issue conceded by defendants in the consent judgment was based on a cause of action in the NORML suit only. The court then rules that even though the government eventually settled the case, its litigation position was not substantially justified. The DEA's failure to prepare an environmental impact statement (EIS) on the potential effects of the paraquat spraying ignores the well-settled rule that a federal agency must prepare an EIS prior to taking any action that may have significant adverse environmental impacts. The court observes that one case so holding also involved paraquat spraying by the DEA to eradicate marijuana, albeit in Mexico. The DEA's action in this case was also in direct violation of the Federal Insecticide, Fungicide, and Rodenticide Act which prohibits the use of paraquat in areas of recognized wildlife habitat. Defendants' statutory violations were aggravated by their initial defense of these actions in court. Turning to the amount of attorney fees to which NORML is entitled, the court holds that NORML may only claim fees for the issues on which it prevailed. The court finds that NORML performed in an advisory role to Sierra Club, assisting in legal research on many of the issues, and did not keep sufficiently specific time records. The court holds it may reduce the number of hours claimed to reflect its estimate of the duplicative work. The court holds that an hourly rate of $75 per hour is reasonable for the two NORML attorneys with 12-14 years experience, but reduces the hourly rate to $60 per hour for the third attorney who has 5 years experience. It reduces by 80 percent the hours claimed on the merits of the case, but makes no reduction in the hours claimed for work on the fee petition. Finally, the court allows a cost-of-living adjustment multiplier of 8.29 percent based on the Consumer Price Index, disallows upward adjustments of 20 percent each for quality of representation and bad faith by defendants, and allows awards for litigation expenses and court costs.

Counsel for Plaintiff
Frederick S. Middleton III, Howard I. Fox
Sierra Club Legal Defense Fund, Inc.
1424 K St. NW, Suite 600, Washington DC 20005
(202) 347-1770

Counsel for Defendants
James Draude
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3796