ELR Citation: ELR 20156
No(s). 07-35797 (9th Cir. Jul 16, 2009)

The Ninth Circuit reversed a district court decision denying an organic farm's application for attorneys fees in its underlying CWA action against a county for discharging pesticides into U.S. waters without an NPDES permit. Below, the farm and county entered into a settlement agreement that limited the county's pesticide spraying in several ways and provided that an application for attorney fees under the CWA's citizen suit provisions, §505(d), could be made to the district court. The district court denied the farm's request for attorneys fees, holding that the farm was not a "prevailing or substantially prevailing party" and, in the alternative, that it was not "appropriate" to grant fees to the farm. Contrary to the district court's ruling, the farm was a prevailing party under §505(d). The terms of the agreement are judicially enforceable, it effected a material alteration in the legal relationship between the parties, and the farm achieved actual relief on the merits of its claim. The court also held that attorneys fees may only be denied to a prevailing plaintiff under §505(d) where there are "special circumstances." Since the lower court did not have the opportunity to apply this standard, the court remanded the case for the lower court to determine whether attorney fees are appropriate.