Opposition Brief — Ad Hoc Committee for Akwesasne Rights v. Reynolds Metals Co.

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No. 85-669

Supame Court, U.S.

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NOV 14 1066

JOSEPH F. SPANIOL, JR.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

Ap Hoc COMMITTEE FOR AKWESASNE RIGHTS,

Petitioner,

Vv.

REYNOLDS METALS COMPANY, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

MEMORANDUM IN OPPOSITION OF THE

CANADIAN ST. REGIS BAND OF MOHAWK INDIANS

AND ASSENTING CLASS REPRESENTATIVES

HARRY R. SACHSE *

KEVIN A. GRIFFIN

SONOSKY, CHAMBERS & SACHSE

1050 - 31st Street, N.W.

Washington, D.C. 20007

(202) 342-9131

Counsel for the Canadian St. Regis

Band of Mohawk Indians and

Assenting Class Representatives

* Counsel of Record

November 14, 1985

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“~~

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-669

Ap Hoc COMMITTEE FOR AKWESASNE RIGHTS,

Petitioner,

REYNOLDS METALS COMPANY, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

MEMORANDUM IN OPPOSITION OF THE

CANADIAN ST. REGIS BAND OF MOHAWK INDIANS

AND ASSENTING CLASS REPRESENTATIVES

Petitioner seeks certiorari on two grounds: 1) that

the Court of Appeals erred in holding that it had not

appealed from the award of attorneys’ fees, and 2) that

the settlement should not have been approved.

1. On the settlement, we rely principally on the opin-

ions of the district court and the court of appeals. We

add the following. After extensive discovery and prepara-

tion for trial it became clear that plaintiffs’ case was not

nearly as strong as we had originally believed. A major

independent health study, upon which plaintiffs were rely-

ing to prove human health injury, showed no current in-

jury and predicted no future injury. The cattle and

vegetation damage had become dramatically less than

before an earlier round of pollution control. Against this

background the $666,900.00 (Canadian) settlement for

non-health injury only ' was clearly reasonable.

The settlement was widely explained and discussed and

was signed by all the leading farmers of the community.

It was reviewed by two outside attorneys, Mr. Bruce

Terris, of Washington, D.C., with eminent credentials in

environmental law, and Mr. Richard Lippes of Buffalo,

New York, selected by petitioner. Both recommended the

settlement. In short, there is no doubt that the settlement

is fair and no reason for this court to review the unani-

mous decisions of the district court and court of appeals

approving it.

2. Petitioner also seeks this Court’s review of the court

of appeals’ ruling that it had not appealed the award of

attorneys’ fees. Petitioner presents this as inartful plead-

ing on its part and overtechnicality on the part of the

court of appeals, but this is not the case.

The fact is that petitioner did not challenge the amount

of the attorneys’ fee below. This is not surprising. The

attorneys originally took this case on an hourly fee basis

under a contract with the Band approved by the leading

farmers. When it became clear that the Band did not

have the funds to pay the attorneys and expert witnesses

on au hourly basis, the attorneys agreed to be paid out

of the recovery, on a percentage basis but not less than

their hourly billings on the case at their ordinary hourly

rates.

1 Health claims had been dismissed without prejudice prior to the

settlement. The settlement expressly excluded those claims. Thus

they may be brought again when and if the evidence merits.

To facilitate the settlement the fees requested (and

approved by the district court) were some 25 percent less

than the hourly billing. All of this was thoroughly docu-

mented in the fee petition. See also Pet. App. at 33-34.

Indeed, the attorney for the petitioner, when asked to

give all his objections to the settlement, said:

As far as the fees, [the objectors] will testify

* * * that they are very grateful to Mr. Sachse for

the work he’s done, and his tireless effort over the

years on this case.

Their objection is that the fee will be paid out of

the settlement * * *. [T]he cause of the pollution is

Reynolds and Alcoa. They should pay that beyond

whatever the offer of settlement is * * *.

* * * So that the Ad Hoc Committee * * * would

object to the payment from the source that it’s in-

dicated to be from.

Supp. App. on appeal Vol. II, pp. 23-24 (emphasis added).

This was the only objection made to the fees before the

district court. Indeed none of the witnesses objecting to

the settlement testified against any aspect of the attor-

neys’ fee petition.

The district court issued separate orders approving the

settlement and approving the attorneys’ fees. Supp. App.

Vol. II, 482-483; Supp. App. Vol. II, 434-435. The notice

of appeal referred only to the settlement order. Notice of

Appeal, Docket No. 348. In light of the lack of testimony

opposing attorneys’ fees and the statement of petitioner’s

counsel, the omission of attorneys’ fees from the notice

of appeal does not appear to have been inadvertent.

The situation here is thus not like Foman v. Davis, 371

U.S. 178 (1962) relied upon by plaintiff. Under the cir-

cumstances here the court of appeals could reasonably

conclude that petitioner had not appealed what he had

not contested below. Indeed, had the court of appeals not

so found, it certainly would have held against petitioner

on the ground that it had not raised the issue below or

would have affirmed on the merits. There is no reason for

this Court’s review under these circumstances.

The sev. .ement provides significant benefits to the St.

Regis people. Distribution of the funds has been long

delayed by the unfounded objections of the Ad Hoc Com-

mittee. The petition for a writ of certiorari should be

denied.