Opposition Brief — Work v. Tyson Foods, Inc.

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No. 90-1774— JUN 14 1951

QFRICE OF Ti.

In The —

Supreme Court of the United States

October Term, 1990

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LEWIS STEPHEN WORK, et al.,

Petitioners,

vs.

TYSON FOODS, INC.; CITY OF GREEN

FOREST, ARKANSAS; and UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

S

Petition For Writ Of Certiorari -—

To The United States Court Of

Appeals For The Eighth Circuit

¢

BRIEF IN OPPOSITION

+

CONSTANCE G. CLARK

(Counsel of Record)

Davis, Cox & WRIGHT

Post Office Drawer 1688

Fayetteville, AR 72702-1688

(501) 521-7600

Attorney for Respondent,

City of Green Forest, Arkansas

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

A.

WHETHER A CITIZEN SUIT BROUGHT UNDER 33

U.S.C. § 1365 CAN BE PRECLUDED BY THE ENTRY

OF A CONSENT DECREE BETWEEN THE EPA AND

AN ALLEGED POLLUTER IN AN ACTION

INITIATED BY THE EPA AFTER THE CITIZEN SUIT

WAS FILED.

B.

WHETHER AN APPELLATE COURT CAN DENY

ATTORNEY’S FEES AND COSTS INCURRED ON

APPEAL BY CITIZEN PLAINTIFFS IN A SUIT

BROUGHT PURSUANT TO THE CLEAN WATER ACT.

il

TABLE OF CONTENTS

Page

Questions Presented for Review ............. i

ee le CR o.oo eve ods taxenrese tenes ii

Te OE FRI so ono ices 5 nova Seeie enue iii

a KK CY Pere 1

| MPTP 3

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iii

TABLE OF AUTHORITIES

Cases:

Atlantic States Legal Foundation, Inc. v. Koch Refin-

ing Co., 681 F. Supp. 609 (D. Minn. 1988).....

Atlantic States Legal Foundation v. Tyson Foods, 897

RG AS)

Chesapeake Bay Foundation, Inc. v. American Recov-

ery Co., Inc., 769 F.2d 207 (4th Cir. 1985)......

Citizens Coordinating Committee on Friendship

Heights, Inc. v. Washington Metropolitan Area

Transit Authority, 765 F.2d 1169 (D.C. Cir. 1985)....

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foun-

dation, Inc., 484 U.S. 49 (1987) ................

Hensley v. Eckerhart, 461 U.S. 424 (1983).........

Hudson River Fishermen’s Association v. County of

Westchester, 686 F. Supp. 1044 (S.D. N.Y. 1988)

Matter of Penn Central Transportation Co., 630 F.2d

ee

Missouri Coalition for the Environment v. Corps of

Engineers, 866 F. 2d 1025 (8th Cir. 1989).......

Sierra Club v. Coca-Cola Corporation, 673 F. Supp.

i

Sierra Club v. Electronic Controls Design, 703 F.

| :

Student Public Interest Research Group of New Jersey,

Inc. v. Georgia-Pacific Corp., 615 F. Supp. 1419 (D.

er hak es be we edb sae eee nee»

iv

TABLE OF AUTHORITIES - Continued

Page

United States v. Hooker Chemicals & Plastics Corp.,

540 F. Supp. 1067 (W.D. N.Y. 1962) ...............: 6

United States v. Hooker Chemicals & Plastics Corp.,

Fee Te We Se I BOE ober ie cake sccncesvesces 9

United States v. Ketchikan Pulp Co., 430 F. Supp. 83

a I I ge ere eebeee ends 6,9

United States v. Olin Corporation, 606 F. Supp. 1301

ee Ss sees kA e Rohe hack ehueuNes seaene es 8

Statutes AND OtHeR AUTHORITY:

EN ON gece coe ua ease cae dase aeaeS 4

Be Se NE is Beas ee tha were eoekeoesscesGye eee 4

RO er er ree ree 12

oe ee ee err er Terres rer ee Tre 10

oe Be ee Oe es eee 14, 15

STATEMENT OF THE CASE

On March 3, 1987, approximately 100 residents of an

area east of the small town of Green Forest, Arkansas

filed suit in the United States District Court for the West-

ern District of Arkansas against Tyson Foods, Inc., the

City of Green Forest, and 18 other defendants, seeking

relief under the Clean Water Act, 33 U.S.C. § 1251, et seq.,

as well as under a number of other federal and state

statutes and the common law of the State of Arkansas.

The plaintiffs, petitioners here, alleged that their ground-

water was polluted as a result of Tyson Foods’ discharge

into the City’s publicly owned treatment works (POTW)

of greater quantities of waste than the POTW was capable

of handling. The plaintiffs sought declaratory and injunc-

tive relief, the imposition of civil penalties, compensatory

and punitive damages and attorney’s fees.

On September 28, 1987, the United States of America,

at the request of the Environmental Protection Agency

(EPA), filed suit in the same court against the City of

Green Forest and the State of Arkansas pursuant to the

Clean Water Act. The government also sought injunctive

relief and the assessment of civil penalties against the

City of Green Forest for its discharge of pollutants in

violation of the Act.

On January 28, 1989, the government lodged a pro-

posed consent decree settling its enforcement action.

Notice of the lodging of the proposed decree was pub-

lished in the Federal Register on February 21, 1989. On

March 17, 1989, the plaintiffs filed a motion seeking to

intervene in the EPA action and setting forth their objec-

tions to the proposed consent decree. In an order entered

on March 24, 1989, the district court denied the motion

for intervention. The consent decree was subsequently

approved by the court and filed on March 29, 1989.

Before trial commenced in the citizen suit, the City of

Green Forest filed a motion for partial summary judg-

ment, seeking dismissal of the plaintiffs’ Clean Water Act

claims on the basis of collateral estoppel and res judicata.

Agreeing with the City’s position that the plaintiffs were

seeking the same relief for the same alleged violations of

the Clean Water Act as had been sought by the EPA in the

government enforcement action and that resolution of

those issues by entry of the consent decree barred the

plaintiffs from proceeding with their Clean Water Act

claims, the district court granted the City’s motion and

dismissed with prejudice that portion of the complaint

seeking relief against the City under the Clean Water Act.

The plaintiffs were permitted to proceed against the ity

on all other claims stated in the complaint, although the

case went to the jury (as against the City) only on the

plaintiffs’ claim for damages based upon inverse condem-

nation. The jury returned a verdict in favor of the City on

the inverse condemnation claims.

The plaintiffs appealed to the United States Court of

Appeals for the Eighth Circuit. As against the City, the

plaintiffs argued, first, that the trial court erred in deny-

ing intervention in and consolidation with the EPA

action; second, that the district court erred in granting

partial summary judgment in favor of the City on the

Clean Water Act claims; and third, that the inverse con-

demnation claim was submitted to the jury under

improper instructions. In an opinion filed December 18,

1990, the Eighth Circuit Court of Appeals held that the

lower court properly denied the motion to consolidate. It

also found that the district court correctly dismissed the

citizens’ Clean Water Act claims on grounds of res judi-

cata. The appellate court further held that the trial court

erred in denying the plaintiffs’ motion to intervene in the

government enforcement action, but found the error

harmless except to the extent that the ruling prevented

the plaintiffs from seeking attorneys’ fees. Thus, the

Court of Appeals remanded the case in order to allow the

plaintiffs to attempt to recover fees. The Court of Appeals

also reversed and remanded on the plaintiffs’ inverse

condemnation claims, finding that the trial court submit-

ted that theory to the jury under erroneous instructions.

Both the citizen-plaintiffs and Tyson Foods, Inc. have

petitioned this Court for a writ of certiorari to the United

States Court of Appeals for the Eighth Circuit. Tyson’s

petition raises Clean Water Act issues which do not affect

the City and, thus, the City makes no response to Tyson’s

petition. The plaintiffs present three questions for review,

but only the first and the third of those three questions

call for a response by the City.

+

ARGUMENT

A.

WHETHER A CITIZEN SUIT BROUGHT UNDER 33

U.S.C. § 1365 CAN BE PRECLUDED BY THE ENTRY OF

A CONSENT DECREE BETWEEN THE EPA AND AN

ALLEGED POLLUTER IN AN ACTION INITIATED BY

THE EPA AFTER THE CITIZEN SUIT WAS FILED.

On September 28, 1987, the EPA filed suit in the

United States District Court for the Western District of

Arkansas against the City of Green Forest. The action was

brought pursuant to the Clean Water Act, 33 U.S.C.

§ 1319, and sought injunctive relief and civil penalties,

alleging violation of the NPDES permit issued by the EPA

to the City of Green Forest. The United States of America

sought the same relief for the same alleged violations of

the Clean Water Act that the petitioners were seeking ina

suit they had filed against the City (and others) on March

3, 1987. On March 29, 1989, a consent decree was entered

in the EPA action filed against the City. The City then

filed a motion for partial summary judgment in the plain-

tiffs’ suit, seeking dismissal of the plaintiffs’ Clean Water

Act claims against the City on the basis of collateral

estoppel and res judicata. The trial court granted the

City’s metion and dismissed with prejudice that portion

of the complaint seeking relief under the Clean Water

Act. The plaintiffs were allowed to proceed against the

City on all other claims stated in the complaint. On

appeal, the Eighth Circuit Court of Appeals held that the

trial court properly dismissed the Clean Water Act claims

against the City on grounds of res judicata.

The petitioners now ask this Court to review the

question whether the entry of a consent decree in a Clean

Water Act case commenced by the EPA subsequent to the

filing of a citizen suit under that Act may have a res

judicata effect on the citizen suit. In their brief, the peti-

tioners focus on the role which they contend a citizen

may take when the government fails to act within the

sixty day period after notice of intent to sue is given

pursuant to 33 U.S.C. § 1365(b). The petitioners maintain

that under the Eighth Circuit’s ruling, citizen suits would

be barred from proceeding whenever the EPA subse-

quently commences and settles an enforcement action.

The City submits that the petitioners misconceive the role

which citizens are to play under the enforcement mecha-

nism of the Clean Water Act and, further, misread the

scope of the appellate court’s ruling.

As the Eighth Circuit noted in its opinion, the Clean

Water Act is intended to be enforced primarily by the

United States government. Thus, in Gwaltney of Smithfield,

Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987),

this Court stated:

The bar on citizen suits when governmental

enforcement action is underway suggests that

the citizen suit is meant to supplement rather

than to supplant governmental action. The legis-

lative history of the Act reinforces this view of

the role of the citizen suit.

484 U. S. at 60.

In Gwaltney, this Court held that to permit citizen suits

for wholly past violations of the Act “could undermine

the supplementary role envisioned for the citizen suit.”

484 USS. at 60.

The United States District Court for the Southern

District of New York’s well-spoken comments in Hudson

River Fishermen’s Association v. County of Westchester, 686

F. Supp. 1044 (S.D. N.Y. 1988) amplify the reasons for

delegating to private citizens a secondary, rather than a

primary, role. Responding to the Fishermen’s Associa-

tion’s argument that dismissal of its suit would leave the

group without a remedy, the Court declared:

We are particularly unimpressed with this

latter argument. The thrust of the CWA is to

provide society with a remedy against polluters

in the interest of protecting the environment.

Section 101 of the CWA, 33 U.S.C. § 1251(a). If

the Government's action achieves that end, the

fact that HudFish or any other private attorney

general is barred from duplicating that effort

should hardly seem surprising or harsh. The

Government, of course, as representative of

society as a whole, usually is in the best position

to vindicate societal rights and interests. In

those instances where, for whatever reasons, the

Government fails or declines to take action, the

CWA allows citizens acting as private attorneys

general to fill the void. That does not mean,

however, that HudFish is ipso facto entitled to its

own, “personalized” remedy in this or any other

CWA case. 686 F. Supp. at 1052.

The argument advanced by the Fishermen’s Associa-

tion parallels quite closely that made by the petitioners in

this case. The citizens here object to the fact that they

were not able to dictate the terms of the settlement which

was ultimately reached with the City of Green Forest. Yet,

the cases clearly hold that citizen groups have no right to

prescribe the terms of a settlement. Even when citizens

are permitted to intervene in government enforcement

actions, they have no veto power over a settlement nego-

tiated between the government and a defendant. United

States v. Hooker Chemicals & Plastics Corp., 540 F. Supp.

1067 (W.D. N.Y. 1982); United States v. Ketchikan Pulp Co.,

430 F. Supp. 83 (D. Alaska 1977). Furthermore, civil penal-

ties assessed under the Clean Water Act are not payable

to individual citizens, but to the United States Treasury.

Gwaltney, supra; Sierra Club v. Electronic Controls Design,

703 F. Supp. 875 (D. Or. 1989).

Had the EPA filed its action within sixty days after

the petitioners gave notice of their intent to sue, the

citizens would not have been permitted to file suit to

redress alleged Clean Water Act violations, but would

have been relegated to the role of intervenors. As has

already been pointed out, the petitioners, as intervenors,

would have had no right to dictate the terms of any

settlement. For whatever reason, perhaps a lack of

resources or a prioritizing of violations demanding imme-

diate action, the EPA did not file suit against the City

until September of 1987, six months after the citizens filed

their suit. Given the fact that citizen groups do not have

veto power over settlements negotiated by the govern-

ment in cases where citizens are permitted to intervene,

why should this group of individuals have such power

simply because the EPA did not file its suit until six

months after the petitioners’ action was commenced? The

petitioners argue that the Eighth Circuit’s decision creates

a new limitation on citizens’ rights to maintain an action

under the Clean Water Act. The City submits that the

adoption of the citizens’ argument would create a new

right in citizen groups - the right to redress in their own

action the very claims resolved by a consent decree nego-

tiated in good faith and at arms length between the EPA

and the defendant. There is simply no basis for engrafting

such a right into the framework of the Clean Water Act.

The petitioners state in their brief that the decision

reached by the Eighth Circuit Court of Appeals on this

issue is contrary to the decisions of other courts and that

there is no authority for the holding beiow. The peti-

tioners fail to mention the decision of the United States

District Court for the Northern District of Alabama in

United States v. Olin Corporation, 606 F. Supp. 1301 (N.D.

Ala. 1985), upon which the Eighth Circuit placed substan-

tial reliance. In that case, the State of Alabama and the

United States sought injunctive relief to require Olin Cor-

poration to eliminate DDT from and restore the environ-

ment in the vicinity of Redstone Arsenal. As part of the

resolution of the case, Olin, the United States and Ala-

bama entered into a consent decree. After making the

decree available for public comment, the court entered it

on May 31, 1983. The previous January, the plaintiffs had

filed a separate action against Olin for injunctive relief

requiring Olin to remove DDT from the affected area.

Olin filed a motion for summary judgment, arguing that

the citizen suit was barred by res judicata.

The trial court granted Olin’s summary judgment

motion, holding that because the plaintiffs sought the

same relief as that requested and attained by the govern-

ment in the earlier litigation, the plaintiffs’ claims were

barred by res judicata. In reaching its decision, the court

noted that the weight of authority indicates that when a

state or the federal government represents all of its citi-

zens in a parens patriae suit, a consent decree entered in

such a suit is conclusive upon those citizens and is bind-

ing upon their rights. Explaining the concept, the court

stated that in a proper parens patriae action, a government

is deemed to represent all of its citizens when the govern-

ment is a party in a suit involving a matter of sovereign

» interest, and there is a presumption that the state will

adequately represent the position of its citizens. It noted

that parens patriae lawsuits traditionally involve a govern-

ment suing to enjoin alleged nuisances caused by air or

water pollution. The parens patriae concept was also rec-

ognized by the Second Circuit Court of Appeals in United

States v. Hooker Chemicals & Plastics Corp., 749 F.2d 968 (2d

Cir. 1984). Furthermore, res judicata principles were sim-

ilarly applied to bar certain citizens’ claims in Student

Public Interest Research Group of New Jersey, Inc. v. Georgia-

Pacific Corp., 615 F. Supp. 1419 (D. NJ. 1985). See also,

Missouri Coalition for the Environment v. Corps of Engineers,

866 F. 2d 1025 (8th Cir. 1989); United States v. Ketchikan

Pulp Co., supra.

To support their argument, the petitioners cite Atlan-

tic States Legal Foundation, Inc. v. Koch Refining Co., 681 F.

Supp. 609 (D. Minn. 1988) and Chesapeake Bay Foundation,

Inc. v. American Recovery Co., Inc., 769 F.2d 207 (4th Cir.

1985). Rather than addressing the issue raised here, those

cases dealt only with the question whether a subse-

quently filed government enforcement action compels the

dismissal of a citizen suit. It is one thing to say, as those

cases did, that a subsequently filed EPA action does not

per se bar a pending citizen suit; it is quite another to

extend those holdings, as petitioners would have this

Court do, to allow a citizen suit to proceed after a consent

decree has been reached between the EPA and the pollu-

ter.

Sierra Club v. Coca-Cola Corporation, 673 F. Supp. 1555

(M.D. Fla. 1987), which the petitioners also cite in their

brief, is likewise distinguishable. While that case found

that a consent decree entered into between the EPA and

Coca-Cola did not affect the rights of the citizen group,

the citizen suit there had been consolidated with the

EPA’s action. Here, the citizens’ motion to have their case

consolidated was denied and the denial was upheld by

10

the Eighth Circuit Court of Appeals as a proper exercise

of the district court’s discretion, given the interests of

expedition and economy. (App. 16)

The City would also point out to this Court the fact

that the citizens who object to the preclusive effect given

to the consent decree in this case did have a voice in the

settlement of the government’s enforcement action. On

January 28, 1989, the government lodged its proposed

consent decree settling the enforcement action it had

prosecuted against the City of Green Forest. Notice of the

lodging of the consent decree was published in the Fed-

eral Register on February 21, 1989, as required by 28

C.F.R. § 50.7. On March 17, 1989, the citizens filed their

objections to the proposed consent decree. The decree

was thereafter approved by the district court and filed on

March 29, 1989.

In their brief, the petitioners complain that they were

denied a hearing in which to present their position and

arguments. (Petitioners’ Brief, p. 17) Yet, the petitioners

never requested an evidentiary hearing. Furthermore, the

regulations promulgated with regard to consent judg-

ments in actions such as this one say nothing of a right to

a hearing. Rather, 28 C.F.R. § 50.7 provides for an oppor-

tunity on the part of persons not parties to the action “to

comment” on the proposed judgment prior to its entry by

the court. The regulation goes on to state that prior to the

entry of the consent judgment, “the Department of Justice

will receive and consider, and file with the court, any

written comments, views or allegations relating to the pro-

posed judgment.” (emphasis supplied)

11

Lastly, the City notes that the scope of the Court of

Appeals’ ruling in this case is limited. The Eighth Cir-

cuit’s decision cannot fairly be read to bar every citizen

suit from proceeding whenever the EPA subsequently

commences and then settles its own enforcement action.

Certainly, if the citizen suit seeks to redress different

violations of the Clean Water Act or if it seeks a different

type of relief, then res judicata or collateral estoppel

principles will not apply. Also, the appellate court’s rul-

ing will not prevent citizens from maintaining a suit to

enforce the terms and provisions of a consent decree. In

short, the decision of the Eighth Circuit is limited to its

facts. In this case, the citizens admittedly sought to

redress in their action the very violations which were

covered by the consent decree negotiated between the

City and EPA. Under long-standing principles of res judi-

cata and collateral estoppel, the Eighth Circuit properly

found that the City should not twice be forced to defend

itself against the same allegations of wrongdoing, nor

should it twice be subjected to civil penalties or other

relief for the same violations of the Clean Water Act.

B.

WHETHER AN APPELLATE COURT CAN DENY

ATTORNEY’S FEES AND COSTS INCURRED ON

APPEAL BY CITIZEN PLAINTIFFS IN A SUIT

BROUGHT PURSUANT TO THE CLEAN WATER ACT.

The petitioners also ask this court to review the pro-

priety of the Eighth Circuit Court of Appeal’s denial of

their motion for attorney’s fees and costs incurred on

appeal from the district court judgment. On December 18,

1990, the Eighth Circuit Court of Appeals filed its opinion

12

in this case, affirming in part, reversing in part and

remanding for further proceedings the judgment of the

district court. The petitioners filed a motion for attorney’s

fees, costs and expenses, seeking to recover $85,686.00 in

attorney’s fees (together with any enhancement which

might be determined by the court) and $10,775.94 in costs

and expenses incurred in connection with the appeal of

this case to the Court of Appeals. The City of Green

Forest responded to the motion and on February 25, 1991,

the Eighth Circuit entered an order directing that each

party bear his or its own costs. (App. 43) Petitioners’

subsequent motion for clarification or reconsideration

was denied by the Court of Appeals in an order filed

March 27, 1991. (App. 82)

The petitioners maintain that they are entitled to

attorney's fees pursuant to 33 U.S.C. § 1365(d), which

provides:

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 prevail-

ing or substantially prevailing party, whenever

the court determines such award is appropriate.

The petitioners assert that they are the prevailing parties

in this litigation and, thus, that the Eighth Circuit Court

of Appeals improperly denied their motion for fees and

costs. The City of Green Forest submits that the Court of

Appeals’ order that each party bear its own fees and costs

for work performed by its counsel in connection with the

appeal was entirely proper and does not merit review by

this Court.

13

The first fact to bear in mind in analyzing this ques-

tion is that the petitioners’ case sought relief not only

under the Clean Water Act, but also under a number of

other federal and state statutes and under the common

law of the State of Arkansas. Two of the four issues raised

against the City on petitioners’ appeal to the Eighth Cir-

cuit arose out of the Clean Water Act; the other two

concerned the petitioners’ claim against the City for

inverse condemnation. The motion for fees and costs

submitted by the petitioners included time spent on all

issues involved in the appeal, not just time spent in con-

nection with Clean Water Act issues. There is no statutory

basis for petitioners’ recovery of fees and costs in connec-

tion with their common law claims against any of the

defendants. Citizens Coordinating Committee on Friendship

Heights, Inc. v. Washington Metropolitan Area Transit

Authority, 765 F.2d 1169 (D.C. Cir. 1985).

Secondly, the petitioners did not substantially prevail

against the City on their Clean Water Act claims. With

regard to the Clean Water Act, the petitioners argued on

appeal (1) that the district court erred in denying their

motion to intervene in the enforcement action filed by the

EPA and/or erred in refusing to consolidate the govern-

ment’s case with the citizens’ suit, and (2) that the trial

court erred in granting summary judgment in favor of the

City on the citizens’ Clean Water Act claims. The Eighth

Circuit Court of Appeals agreed with the district court

that the doctrine of res judicata barred the citizens’ Clean

Water Act claims against the City and, thus, that the

lower court correctly granted summary judgment against

the City on that issue. The appeals court also found that

the district court properly exercised its discretion in

14

denying the citizens’ motion to consolidate the EPA and

citizens’ suits. The only issue on which the petitioners

can conceivably argue that they prevailed as against the

City of Green Forest was on the intervention issue. Yet,

even though the Court of Appeals held that the lower

court erred in denying the citizens leave to intervene in

the EPA action, it found that the denial “for the most part,

was harmless error... . ” (App. 13)

Next, consideration must be given to the language of

Rule 39(a) of the Federal Rules of Appellate Procedure,

which governs the taxation of costs on appeal. The Rule

provides in pertinent part, “ .. . if a judgment is affirmed

or reversed in part, or is vacated, costs shall be allowed

only as ordered by the court.” Under Rule 39(a), if a

judgment is affirmed, costs are taxed against the appel-

lant. If a judgment is reversed, costs are taxed against the

appellee. If, as in this case, a judgment is affirmed in part

and reversed in part, the award of costs is entirely discre-

tionary with the court and, in general, equitable consider-

ations mandate that each party bears its own costs. See,

e.g. Matter of Penn Central Transportation Co., 630 F.2d 183

(3d Cir. 1980).

The City would also point out that the cases on

which the petitioners rely concern the recoverability of

fees and costs in connection with work performed at the

trial court level. For example, in Hensley v. Eckerhart, 461

U.S. 424 (1983), the issue was the plaintiffs’ entitlement to

attorney’s fees for work performed at the district court

stage of the proceedings. This Court should be aware of

the fact that on September 21, 1989, shortly after judg-

ment was entered by the district court, the petitioners

filed with that court an application for attorney’s fees in

15

the amount of $348,759.89 (plus any enhancement which

might be determined by the court) and costs in the

amount of $80,043.92. On petitioners’ motion, a consider-

ation of that fee application was stayed pending the

outcome of the appeal. Now that the appeal has been

concluded, the petitioners most certainly will ask the

district court to rule on the pending fee request. Further-

more, as a result of its decision that the trial court erred

in denying the citizens leave to intervene in the EPA

action, the Eighth Circuit Court of Appeals remanded this

case to the district court for the purpose of allowing the

citizens to seek attorney’s fees for their efforts “in spur-

ring the EPA into finally taking action against the City.”

(App. 15) Thus, on remand, the petitioners will be per-

mitted to seek fees against the City of Green Forest for at

least some of the work performed in connection with this

matter.

Finally, this respondent would emphasize that an

award of attorney’s fees under the Clean Water Act is not

mandatory, but is discretionary. Atlantic States Legal Foun-

dation v. Tyson Foods, 897 F.2d 1128 (11th Cir. 1990). Under

33 U.S.C. § 1365(d), the court may award costs of litiga-

tion if the court determines such an award to be appropri-

ate. More significantly, Federal Rule of Appellate

Procedure 39(a) vests complete discretion as to the taxing

of costs in the appellate court, especially in cases which

are affirmed or reversed in part. In cases like this one,

where the judgment of the district court is affirmed in

some respects, reversed in others and remanded for fur-

ther proceedings, the appellate courts routinely require

each party to bear its own costs, including attorney’s fees.

Given the disposition made by the Eighth Circuit Court

16

of Appeals in this case, an explanation of its ruling with

respect to fees and costs simply was not necessary.

.

CONCLUSION

A review on writ of certiorari is not a matter of right,

but of judicial discretion. Under the Rules of this Court, a

petition for writ of certiorari will be granted only when

there are special and important reasons therefor. In this

case, the petitioners have been unable to demonstrate a

conflict among the United States Courts of Appeal on any

of the questions presented. They have not established

that the decision of the Eighth Circuit Court of Appeals

conflicts with any applicable decision of this Court. As

the City has explained in its brief, the Court of Appeals

correctly applied the statutory provisions of the Clean

Water Act, the case law and the appropriate rules of

procedure in reaching its decision in this case. For all of

the reasons discussed herein, the City of Green Forest

respectfully requests that the petition for writ of cer-

tiorari be denied.

Respectfully submitted,

ConsTANCE G. CLARK

(Counsel of Record)

Davis, Cox & WRIGHT

Post Office Drawer 1688

Fayetteville, AR 72702-1688

(501) 521-7600

Attorney for Respondent,

City of Green Forest, Arkansas