Petition for Writ of Certiorari — Hecla Mining Co. v. Washington Wilderness Coalition

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

Hecia Mining Company,

Petitioner,

Washington Wilderness Coalition, Okanogan

Highlands Alliance,

and Atlantic States Legal Foundation, Inc.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Mark Wielga

Scott W. Hardt

Dorsey & Whitney, LLP

370 Seventeenth Street, Suite 4400

Denver, CO 80202

(303)629-3400

Counsel for Petitioner

QUESTION PRESENTED

Does the Ninth Circuit’s rule improperly limit a district

court’s discretion in determining whether it is appropriate to

award attorney’s fees to a prevailing defendant in a citizen suit

brought under the Federal Water Pollution Control Act (“Clean

Water Act’’) and the Comprehensive Environmental Response,

Compensation and Liability Act of 1980 (“CERCLA”)?

SE ————————

LIST OF PARTIES AND RULE 29.6 STATEMENT

All of the parties to the appeal in the United States

Court of Appeals for the Ninth Circuit are listed in the caption.

Pursuant to Sup. Ct. R. 29.6, petitioner has no parent

company. Following are petitioner's non wholly owned

subsidiaries:

ConSil Corp.

Minera ConSil S.A. de C.V. (wholly-owned subsidiary

of ConSil Corp.)

Moonlight Mining Company

Nine Corporation

The Rosebud Mining Company, L.L.C.

Silver Mountain Lead Mines, Inc.

Wall Street Mining Company

ill

TABLE OF CONTENTS

PETITION FOR A WRIT OF CERTIORARI ....... oe

re at, oes eee ep eabensees eas

elas wes dunes eoececasesess _

STATUTORY PROVISIONS INVOLVED .....

STATEMENT OF THE CASE ........... Na er 2

A. The Facts Material To This Court's

Consideration of the Question Presented ........ 5

Be. PROCOOUMIES TIGIOW oo 5 nn ccc cc ccc een. 7

REASONS FOR GRANTING THE WRIT ..........-.9

I. THE NINTH CIRCUIT’S ATTEMPT TO

RESTRICT THE DISTRICT COURT'S

DISCRETION TO AWARD ATTORNEY

FEES TO PREVAILING DEFENDANTS

IN CLEAN WATER ACT AND CERCLA

CITIZEN SUITS CONFLICTS WITH THE

PLAIN LANGUAGE OF THE STATUTES

AND FINDS NO SUPPORT IN LEGISLATIVE

HISTORY ...

A. The Clear Language of the Statutes Dictates

that District Courts Have Discretion in Awarding

Attorney Fees to Prevailing Defendants. ..... LO

B. The Legislative History of the Clean Water

Act and CERCLA Supports an Interpretation

that is Consistent with the Plain Language of

CG GI, kin Sook Ce i er erees

Il. THE NINTH CIRCUIT’S IMPORTATION

OF A STANDARD EMPLOYED IN CIVIL

RIGHTS CASES INTO THE REALM OF

ENVIRONMENTAL CITIZEN SUITS IS

INAPPROPRIATE BECAUSE OF CLEAR

DIFFERENCES IN THE PURPOSES OF THE

STATUTES AND IN THE EQUITIES OF

CITIZEN SUITS BROUGHT PURSUANT

EOF BH RTERTEEEES Washoe essen eee accaes

A. The Goals of Civil Rights and Environmental

PS. 4 Suse caw arc eee cen ohn

B. The Equities of Citizen Suits Brought Pursuant

i) GE I Gb oe ca cere ds ea de oe was

Il. THIS COURT SHOULD GRANT THIS

PETITION TO ADDRESS THE PROBLEM

OF THE LOWER COURTS APPLYING

DISPARATE STANDARDS IN AWARDING

ATTORNEY FEES TO DEFENDANTS IN

ENVIRONMENTAL CITIZEN SUITS...........

APE 6b be ka ke awh ee a ee eh eke em adee

TABLE OF CITED AUTHORITIES

Cases

Atlantic States Legal Found. v. United Musical

Instruments, 61 F.3d 473 (6" Cir. 1995) ........... 19

Chartrand v. Chrysler Corp.,

785 F. Supp. 666 (E.D. Mich. 1992) .......... 21, 24

Christiansburg Garment Co. v. EEOC,

Ge Ue SER ROT E) s Gs0 ae bee te Be Mi Pate Ue

Consolidated Edison Co. v. Realty Investments

Assocs., 524 F. Supp. 150 (S.D.N.Y. 1981) ..... bl, 22

Environmental Compliance Oversight Corp. v.

SmithKline Beecham Corp., Civ. A. No.

94-1807, 1994 WL 675297, (E.D. Pa.

INOW: Zh, BR ak oc os ge eee een euaeenateeeee 24

Fogerty v. Fantasy, Inc.,

530 U.S. 317 (2908). 6 keener ee ey Ree

Gwaltney of Smithfield, Ltd. v. Chesapeake

Bay Found., 484 U.S. 49 (1987) ........... 4, 17-19

Hallstrom v. Tillamook County,

495 U.S. 20 (GR Soc ein eee eee 17, 19; 20.22

INS v. Cardoza-Fonseca,

480 U.S. 428 CIE)! oc cba 10

National Wildlife Fed. v. Consumers Power Co..,

7129 F. Supp. 62 (W.D. Mich. 1989) .............. 24

Newman v. Piggie Park Enter..,

50 U.S. Ge Cae 2 bhai eee See eee 17, 22

Painewebber me Props. Three Ltd. Partnershi

v. Mobil Oil Corp., 916 F. Supp. 1239

(MELD. FOR. TORO 6.ode Sevan ctaseduessotvass eee

Pape v. Manistique Papers. Inc.,

114 F.34.1 168-7” Cle; 1997) conn c-cldids cc cesncacce 23

Pavelic & LeFlore v. Marvel Entertainment Group,

408 US. LD GGG) « Skbceucesneci eee 12

Razore v. Tulalip Tribes of Washington,

66 F.3d 236, 240 (9® Cir. 1995) ......... > a oe He oe

Sierra Club v. Shell Oil Co.,

817 F.24 1160 (3 Cas. 1987) . ccs viawdeeetaseees 23

Sullivan v. Stroop,

496 U.S. 456 (ISP) «kas daa ee a

Truck Components Inc. v. Beatrice Co..,

No. 94 C 3228, 1996 WL 462520,

(N.D. ER. Jaap 1S, ISRO) once cccucnes suaseuue 24

United States v. American Trucking Ass’ns,

310 U.S. 334 (194Q) ... 108s ce eee 10

United States v. Lanier,

117 SC. 1219 CISST? oo cscecce ee 10, 11

United States v. Ron Pair Enter.. Inc..

489 U.S. Z3S CIS). cccwsssesaeen 10

Washington Trout v. Scab Rock Feeders,

823 F. Supp. 819 (E.D. Wash. 1993) ........... . 24

Statutes, Regulations and Rules

SP es tt SoG oo ened cane 645000 tewennee 1]

a gte Teel 5 eee Pare hs rn Me nnee 1]

33 U.S.C. § 1342 Seatirk shee era Swe ent eee

Se Sets BREE Wide s bat cnc ieda basse nenées . 12

ep Ses ED co on bk be cemse an ede >

Ae a Oe In, Sb da ba le i oh a SS 1]

Administrative Procedure Act, 5 U.S.C. § 552(b) ..... 12

Cees Ae Ait. G2 ULE, BS Fe ck ccc cdcncaccdeces 3

Clean Water Act, 33 U.S.C. §1365 ..... 1, 3,9, 11, 18, 19

Comprehensive Environmental Response,

Compensation, and Liability Act of

fou, GE WA. Pe oc cn se cee 2, 3, 9, 11, 18, 19

Emergency Planning and Community

Right-To-Know Act, 42 U.S.C. § 11046

Endangerea Species Act, 16 U.S.C. § 1540(g)

Latham Act, 15 U.S.C. § l117(a) ....... 12

Nouse Control Act. 42 U.S.C. § 4911

Vill

UR, Re BE we bee eee era 12

Solid Waste Disposal Act, 42 U.S.C. § 6972 ........... 3

Surface Mining Control and Reclamation Act,

Rk A Re ee ae ere a ee 2

Other Authorities

Conference Report No. 92-1236 (September 28,

1972), reprinted in 1972 U.S. Code Cong. &

Pe eee ree rT tee rere 13

H.R. Rep. No. 92-911 (March 11, 1972), reprinted

in 1 Legislative History of the Water Pollution

Control Act Amendments of 1972 ............... 13

H.R. Rep. No. 99-253(V), 99" Cong., 1* Sess.

SEE 24 sone cules eee Ae ee A ee ee 14

Ross Macfarlane & Lori Terry, Citizen Suits: Impacts on

Permitting and Agency Enforcement, 11-SPG Nat.

Resources & Env’t. 20 (Spring 1997) ............ 2,4

S. Rep. No. 414, 92d Cong., 1* Sess. 81

(1971), reprinted in 1972 U.S. Code

Cong. & Amin. News 3668 .............. 14, 16, 18

Stephen G. Allen, Environmental Bounty Hunters:

Reallocating Enforcement Authority Between

Citizens and the Government Under the Clean

Water Act, 5 Journal of Min. L. & Policy 257

CORE ose soe ee ee ea ae eee ee eee 2

te ti i ae nace “a

Walter B. Russell, III & Paul Thomas Gregory, Awards

of Attorney’s Fees in Environmental Litigation:

Citizen Suits and the “Appropriate” Standard,

oe 4,18

]

PETITION FOR A WRIT OF CERTIORARI

Petitioner Hecla Mining Company (“Hecla’”’) respectfully

petitions this Court for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Ninth

Circuit in this matter.

OPINIONS BELOW

The Court of Appeals’ panel decision (App. A), dated

August 4, 1998, is unreported. The District Court’s order

dismissing all claims against Hecla (App. B), dated May 6,

1997, is unreported. The District Court’s order denying

Hecla’s motion for attorney fees (App. C), dated July 9, 1997

is unreported.

JURISDICTION

The Court of Appeals’ panel decision of which review

is sought was rendered in an opinion filed on August 6, 1998

(App. A). This Court has jurisdiction to review the judgment

of the court of appeals by writ of certiorari pursuant to 28

U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED

The Clean Water Act citizen suit provision, 33 U.S.C.

§1365(d), provides in relevant part:

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

prevailing or substantially prevailing party,

whenever the court determines such award 1s

appropriate.

The CERCLA citizen suit provision, 42 U.S.C. §

9659(f), provides in relevant part:

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 the

prevailing or the substantially prevailing party

whenever the court determines such an award is

appropriate.

STATEMENT OF THE CASE

The number of citizen suits brought under the Federal

environmental laws has sharply increased over the past several

years.” Across the country, professional litigators have

discovered the citizen suit provisions contained in these statutes,

and are dedicating their practices to environmental litigation.

This explosion in environmental litigation has been driven in no

small part by the provisions contained in most environmental

od Between 1978 and 1983, potential plaintiffs

nationwide filed a total of 41 notices of intent to sue under the Clean

Water Act citizen suit provision; in 1983 and 1984, a total of 195

notices of intent were filed; between 1984 and 1987, 800 notices of

intent were filed. Stephen G. Allen, Environmental Bounty Hunters:

Reallocating Enforcement Authority Between Citizens and the

Government Under the Clean Water Act, 5 Journal of Min. L. & Policy

257 (1989-90). This “explosion” of citizen suits has continued through

the 1990s. Ross Macfarlane & Lori Terry, Citizen Suits: Impacts on

Permitting and Agency Enforcement, 11-SPG Nat. Resources & Env’t.

20, 20 (Spring 1997).

LoS)

citizen suit statutes that allow a prevailing party to recover its

costs and attorney fees.” While much attention has been paid

to the standards under which a prevailing plaintiff may recover

its attorney fees under these provisions, the lower courts have

been unable to reach a consensus as to what standards should

govern an award of attorney fees to a prevailing defendant.

Here, the Ninth Circuit panel ruled, without any

analysis, that the district courts may not award attorney fees to

a party who has successfully defended a Clean Water Act or

CERCLA citizen suit unless the defendant shows that the

plaintiffs claims were “frivolous, unreasonable, or without

foundation.” App. A, at 3a-4a (citing standard created in

Razore v. Tulalip Tribes of Washington, 66 F.3d 236, 240 (9"

Cir. 1995)). That decision is wholly at odds with the clear

statutory language contained in these statutes, is not premised

on any supportable legal analysis, and is a clear example of

judicial legislating that should be corrected by this Court. The

Ninth Circuit standard arbitrarily restricts the significant

discretion that Congress expressly vested in the district courts

2 ey

Beginning in the 1970s, Congress began inserting into

nearly every new federal environmental statute a provision authorizing

citizens to sue to enforce the statute in the event the agency entrusted

with enforcement of the statute failed to enforce it adequately. Many of

these statutes include fee-shifting provisions which, like the Clean

Water Act and CERCLA provisions at issue in this case, allow either the

“prevailing party” or “any party” to recover its fees in “appropriate”

circumstances. See. e.g.. Clean Air Act, 42 U.S.C. § 7604 (any party);

Emergency Planning and Community Right-To-Know Act, 42 U.S.C. §

11046 (prevailing party); Noise Control Act, 42 U.S.C. § 4911 (any

party); Endangered Species Act, 16 U.S.C. § 1540(g) (any party);

Surface Mining Control and Reclamation Act, 30 U.S.C. § 1270 (any

party); Solid Waste Disposal Act, 42 U.S.C. § 6972 (prevailing party);

Clean Water Act, 33 U.S.C. § 1365 (prevailing party): Comprehensive

Environmental Response, Compensation, and Liability Act, 42 U.S.C. §

9659 (prevailing party).

to determine when a fee award to a prevailing party is

“appropriate.” Courts in other circuits have struggled in this

muddied area of the law and have inconsistently applied various

standards that disfavor fee awards to defendants or, in contrast,

apply a more even-handed approach to awarding fees to the

prevailing party.”

Over the past years, citizen suits — originally envisioned

as a limited means of protecting the public interest by enforcing

federal environmental laws only when the responsible agencies

failed to do so” — have evolved into an aggressive litigation

tool used by a variety of plaintiffs to achieve a variety of goals

— some of which are entirely unrelated to environmental

protection or the public interest.” Consequently, as the number

of citizen suits has escalated, the equities involved in the suits

have not followed a bright line, and the lower courts have

struggled in trying to define the appropriate standards for fee

awards. The Ninth Circuit has decided to apply a “frivolous,

unreasonable, or without foundation” standard to substantially

restrict a prevailing defendant’s ability to recover fees,

regardless of the equities at issue in a particular case. See

7 See infra Section III.

7 See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., 484 U.S. 49, 60 (1987); Walter B. Russell, III & Paul Thomas

Gregory, Awards of Attorney’s Fees in Environmental Litigation:

Citizen Suits and the “Appropriate” Standard, 18 Ga. L. Rev. 307, 308-

09 (1984).

5 ° . ‘ . ‘ ‘

1 One reason for this proliferation of suits is an entire

cottage industry of lawyers specializing in locating potential citizen suit

plaintiffs and prosecuting their suits. See Ross Macfarlane & Lori

Terry, supra note 1, at 21. This development has reduced the public

interest justification for many citizen suits.

Razore, 66 F.3d at 240. Unfortunately, this standard is legally

unfounded and arbitrary.

This case presents the opportunity to correct the Ninth

Circuit’s improper restriction of the district courts’ discretion to

award attorney fees to prevailing defendants in Clean Water

Act and CERCLA citizen suits, and to clarify this important

area of the law. Since many of the federal environmental

statutes contain similar fee-recovery language, this Court’s

review of the Ninth Circuit’s decision would also provide much

needed guidance to the lower courts in assessing attorney fee

requests in the ever-increasing numbers of citizen suits brought

under these laws.”

A. The Facts Material To This Court’s

Consideration of the Question Presented

_ In 1981, Hecla Mining Company (‘Hecla’’) acquired a

mine near Republic, Washington that had produced gold and

Silver since the turn of the century (the “Republic Unit”). App.

B, at 4. Over the years, ore tailings and wastewater from the

mine were disposed in surface impoundments, or “tailings

ponds,” located on the mine property. App. B, at 8a-9a. The

State of Washington has been delegated authority to implement

the permitting provisions of the Clean Water Act. including

Section 402 of the Clean Water Act, which authorizes the

issuance of National Pollutant Discharge Elimination System

(“NPDES”) permits for discharges of pollutants to navigable

waters. 33 U.S.C. § 1342. The previous owner of the Republic

Unit had maintained waste discharge permits, issued by the

State of Washington which authorized the discharge of a certain

amount of wastewater from the only active tailing pond, known

7 See supra note 1.

as the Aspen Pond, to surface and groundwater.” App. B, at

10a.

In 1994, Hecla obtained a new permit from the

Washington State Department of Ecology (“DOE”). This was

a “zero discharge” permit, which provided that Hecla could not

discharge any wastewater from the Aspen Pond. App. B, at

lla. To achieve this Zero discharge standard, the permit

established a schedule for decommissioning Aspen Pond and for

building a replacement tailings pond that would employ modern

technology designed to eliminate seepage. App. B, at 1 la-12a.

Seep collection wells were installed to collect seepage and

pump it back to the pond. The DOE knew that a certain

amount of wastewater was seeping from the Aspen Pond, as it

had in the past issued permits expressly authorizing that

discharge. App. B, at 1la. The DOE also understood that it

would take time to eliminate all seepage from the historic

tailings pond. App. B, at 1la-13a. Consequently, as long as

Hecla complied with the closure schedule, DOE would deem it

to be in compliance with the “zero discharge” requirement of

the new permit. App. B, at 13a. While Hecla’s permit

contained the strictest discharge limitation possible — zero

discharge— this new permit was not labeled an NPDES permit

because, as a matter of policy, the DOE does not issue NPDES

permits for discharges to groundwater, and the seepage from

Aspen Pond was not discharging directly to surface waters.

App. B, at lla.

The Aspen Pond was constructed in the 1950's. One

early permit, issued in 1971, authorized discharge either to groundwater

or directly into Eureka Creek, which passes through the Republic Unit;

however, a later permit authorized discharge only to groundwater.

EE VO

B. Proceedings Below

In 1994 three environmental groups filed suit against

Hecla seeking penalties and injunctive relief for alleged

violations of the Clean Water Act and CERCLA. The groups

claimed that Hecla was violating the Clean Water Act because

the company was discharging water from the Aspen Pond, and

two other historic tailings areas on the Republic Unit property

without an NPDES permit. App. B, at 2a. The groups

premised their CERCLA claim on the theory that Hecla had

failed to report to the National Response Center the release of

a reportable quantity of a hazardous substance. App. B, at 2a.

On the eve of trial, the environmental groups voluntarily

dismissed their CERCLA claim, and also their prayer for

injunctive relief. App. B, at 2a.

During the trial, the plaintiffs attempted to show that

seepage from tailings ponds on Hecla’s Republic Unit

constituted a discharge into navigable waters, and _ that

therefore, the DOE should have issued a permit to Hecla labeled

an NPDES permit, rather than a wastewater discharge permit.

After trial to an advisory jury, the district court dismissed the

plaintiffs’ remaining Clean Water Act claim for lack of standing.

App. B, at 35a. The court held that the plaintiffs had not

proved injury to any interest, either environmental, recreational,

or health-based. For example, the court stated:

This was not Silent Spring. There was no

evidence that any living being even sustained

inconvenience, let alone injury. There were no

bloated fish floating belly-up, no featherless

birds, no smells, no defoliation, no loss of

habitat and no loss of aesthetics.

App. B, at 18a-19a. The court found that there was no

evidence that “there should have been or even might have been”

harm to fish and wildlife. App. B, at 19a. With respect to

human health risks, again, neither the court nor the jury found

evidence of harm. As the court stated: “The jury did not see

Hecla’s discharges as harmful. As one member of the jury put

it, ‘you could still drink the water out of Mud Lake or Eureka

Creek and not perish from it.’” App. B, at 20a.

The district court found that the environmental groups’

case was premised on a purely technical violation of the Clean

Water Act. App. B, at 21a. The court further found that, even

if the environmental groups had prevailed, the environment

would not have benefitted because the plaintiffs had dropped

their claim for injunctive relief, and the DOE had already

required Hecla to close its facility and meet a strict compliance

schedule for satisfying the “zero discharge” standard under its

permit. App. C, at 38a-39a. As the district court stated, “The

point of this suit was not to close Aspen Pond and save the

environment. DOE had already done that.” App. C, at 39a.

After the district court’s dismissal of plaintiffs’ Clean

Water Act claim, Hecla moved for costs and fees. The court

awarded Hecla costs as the prevailing party under Federal Rule

of Civil Procedure 54(d)(1). App. C, at 48a, 5la. However,

rather than exercising its discretion to determine whether the

award of attorney fees to Hecla would be “appropriate” in this

case, as directed by the Clean Water Act and CERCLA citizen

Suit provisions, the district court denied Hecla’s motion for

attorney fees outright based on untenable Ninth Circuit

precedent. App. C, at 40a-41a, 45a-46a. The district court

held that it was bound by the Ninth Circuit’s decision in Razore

vy. Tulalip Tribes of Washington, 66 F.3d 236 (9" Cir. 1995),

which prohibits district courts from awarding attorney fees to

a prevailing defendant in a Clean Water Act citizen suit, unless

the defendant shows the plaintiffs action was “frivolous,

unreasonable, or without foundation.” App. C, at 40a-4la

(citing Razore, 66 F3d at 240). The district court further

surmised, “it is probable the Ninth Circuit would apply the same

analysis [to the CERCLA citizen suit provision] as it did in

Razore.” App. C, at 45a-46a. Without any analysis, the Ninth

Circuit affirmed the district court’s ruling, citing its decision in

Razore as controlling. App. A, at 3a-4a.

REASONS FOR GRANTING THE WRIT

The plain language of the Clean Water Act and

CERCLA citizen suit provisions clearly provide for recovery of

attorney fees by any prevailing party, whenever the district

court deems it “appropriate.” 33 U.S.C. § 1365(d):; 42 U.S.C.

§ 9659(f). There exists no sound legal justification for

substantially limiting the district court’s discretion to determine

when it is “appropriate” for a prevailing defendant to recover its

attorney fees as the Ninth Circuit has done. The Ninth Circuit’s

automatic prohibition on the award of attorney fees to

prevailing defendants absent a showing that the plaintiff's claims

are “frivolous, unreasonable, or without foundation” is

untenable, and should be rejected by this Court in favor of an

approach that allows the federal district courts to evaluate all of

the circumstances of a case before it.

I. THE NINTH CIRCUIT’S ATTEMPT TO

RESTRICT THE DISTRICT COURT’S

DISCRETION TO AWARD ATTORNEY FEES

TO PREVAILING DEFENDANTS IN CLEAN

WATER ACT AND CERCLA CITIZEN SUITS

CONFLICTS WITH THE PLAIN LANGUAGE OF

THE STATUTES AND FINDS NO SUPPORT IN

LEGISLATIVE HISTORY.

A. The Clear Language of the Statutes Dictates

that District Courts Have Discretion in

Awarding Attorney Fees to Prevailing

Defendants.

It has long been established by this Court that in

interpreting a statute, the plain language of the statute controls.

If the language of a statute is clear and unambiguous, “that is

the end of the matter”: the Court should look no further than

that language in determining a statute’s meaning. Sullivan v.

Stroop, 496 U.S. 478, 482 (1990); United States v. Ron Pair

Enter., Inc., 489 U.S. 235, 241 (1989). This is true unless the

plain meaning of the statute would lead to “absurd or futile

results,” United States v. American Trucking Ass’ns, 310 U.S.

534, 543 (1940), or unless there is a “clearly expressed

legislative intention contrary to that language.” INS _v.

Cardoza-Fonseca. 480 U.S. 421, 432 n.12 (1987). This “plain

meaning” rule is based on the truism that in the vast majority of

its legislation Congress does mean what it says and thus the

Statutory language is normally the best evidence of

congressional intent. United States v. Lanier, 117 S.Ct. 1219,

1226 (1997).

The fee-shifting provisions of the Clean Water Act and

CERCLA unambiguously state that “the court . . . may award

eee

costs of litigation (including reasonable attorney and expert

witness fees)” to a “prevailing or substantially prevailing party”

whenever the court determines that such an award is

“appropriate.” 33 U.S.C. §1365(d); 42 U.S.C. §9659(f).

Nowhere do these provisions suggest that prevailing plaintiffs

are automatically to be treated differently from prevailing

defendants. Rather, the statutes adopt a single discretionary

standard which applies to the “prevailing party,” regardless of

whether that party is a plaintiff or defendant. Congress did not

impose any rigid limitations on a district court’s discretion to

award costs. Litigation costs “may” be awarded “whenever”

the court determines that such an award is appropriate. Id.

(emphasis added). By using these terms, Congress

unequivocally granted the district courts discretion to award

litigation costs to either party whenever they decide such an

award is appropriate, based on the particular facts of the case

before it. Fogerty v. Fantasy, Inc., 510 U.S. 517, 533 (1994)

(the use of the term “may” in a statute “clearly connotes

discretion”).

Indeed, it is difficult to imagine how Congress could

have been more explicit in granting broad discretionary

authority to the district courts. Other statutes show that

Congress knows how to impose limitations upon judicial

discretion to award fees to a prevailing defendant when it so

chooses. In fact, in the Pipeline Safety Act of 1992, Congress

included essentially the same standard the Ninth Circuit is

impermissibly trying to “legislate” here. The Act reads: “The

court may award costs, reasonable expert witness fees, and a

reasonable attorney’s fee to a prevailing plaintiff in a civil action

under this section. The court may award costs to a prevailing

defendant when the action is unreasonable, frivolous, or

meritless.” 49 U.S.C. § 60121. See also 15 U.S.C. § 15(c)

(similar dual standard in restraint of trade statute); 15 U.S.C. §

1692(k) (similar dual standard in debt collection statute). Thus,

it is clear that, when Congress intends to establish rigid dual

standards for attorney fee recovery, it can expressly do so.

Congress has clearly indicated when it intended to

subject prevailing defendants to a more onerous standard in

seeking cost awards in cases brought to enforce several other

federal statutes. For example, Section 552b(i) of the

Administrative Procedure Act, 5 U.S.C. § 552(b), expressly

provides that litigation costs may be assessed in favor of the

substantially prevailing party, “except that costs may be

assessed against the plaintiff only where the court finds that the

Suit was initiated by the plaintiff primarily for frivolous or

dilatory purposes.” 5 U.S.C. § 552b(i). Compare 42 U.S.C. §

11113 (in suit brought relating to professional review activities,

defendant who “substantially prevailed” entitled to attorney fees

if the claim was “frivolous, unreasonable, without foundation,

or in bad faith’). See also the Latham Act, 15 U.S.C. §

1117(a), and the Patent Act, 35 U.S.C. § 285 (both stating that

“(t]he court in exceptional cases may award reasonable attorney

fees to the prevailing party”). The obvious corollary is: when

Congress intends to vest the trial court with discretion to

determine when a fee award is appropriate to either party, it can

do so. It has done so in the citizen suit authorization contained

in the Clean Water Act.

In interpreting statutory language, a court’s task is to

“apply the text, not to improve upon it.” Pavelic & LeFlore v.

Marvel Entertainment Group, 493 U.S. 120, 126 (1989).

Because the fee-shifting provisions of the Clean Water Act and

CERCLA unambiguously grant the district court broad

discretion to award litigation costs to a prevailing party

“whenever the court determines that such an award is

appropriate,” it is wrong for the Ninth Circuit to adopt its own

rule narrowly limiting that discretion to significantly restrict the

ono allel

circumstances under which a prevailing defendant may recover

its fees.

B. The Legislative History of the Clean Water

Act and CERCLA Supports an

Interpretation that is Consistent with the

Plain Language of the Statutes.

As discussed above, the plain language of the fee-

shifting provisions in the Clean Water Act and CERCLA should

govern unless that language leads to absurd or impracticable

consequences, or there is a clearly expressed legislative intent

to the contrary. Certainly allowing the district courts discretion

to make fact-specific determinations as to whether to award

litigation costs in a particular case does not implicate the

“absurd or impracticable consequences” exception to the plain

language rule. Moreover, there is no “clearly expressed

legislative intention” to justify deviating from the statutory

language. Rather, the legislative history of the Clean Water Act

and CERCLA fully supports the vesting of discretion in the

district courts to determine when a fee award to a prevailing

defendant is “appropriate” given the facts and equities of a

particular case.

ror example, just six days before the 1972 Clean Water

Act Amendments were passed, the fee-shifting provision of the

Clean Water Act was discussed in the Joint Explanatory

Statement of the Committee of Conference (“Joint Explanatory

Statement”), authored by members of both the House and

Senate. The Joint Explanatory Statement provides only that

“[l]itigation costs may be awarded to any party if a court

determines that such an award is appropriate.” Conference

Report No. 92-1236 (September 28, 1972), reprinted in 1972

U.S. Code Cong. & Admin. News 3776, 3823. See also H.R.

Rep. No. 92-911 (March 11, 1972), reprinted in 1 Legislative

History of the Water Pollution Control] Act Amendments of

1972. See also, H.R. Rep. No. 99-253(V), 99" Cong., 1* Sess.

(1985) (Superfund Amendments and Reauthorization Act of

1986, amendment to CERCLA) (stating that the fee-shifting

provision allows the district court to “award costs of litigation,

including reasonable attorney and expert witness fees, to the

prevailing or substantially prevailing party whenever the court

determines such an award is appropriate”).

The decision to make attorney fee awards available to

either party at the discretion of the district court was a

measured and considered one. The Clean Water Act citizen suit

provision originally mandated that all successful plaintiffs

receive litigation costs; this language was excised by the

Committee prior to passage of the Act and replaced with

language allowing any prevailing party to recover fees. S. Rep.

No. 414, 92d Cong., 1* Sess. 81 (1971), reprinted in 1972 U.S.

Code Cong. & Amin. News 3668, 3757. In short, rigid rules

governing the recovery of fees were rejected.

There is simply no indication in the legislative history

that Congress intended to place limitations on the district

court’s discretion in determining whether an award of attorney

fees is appropriate. Rather, the language suggests that a district

court’s determination of whether to award costs should be

driven by broad public interest considerations. While

defendants should be entitled to an award of litigation costs

(including attorney fees and expert witness fees) in defending

actions that were frivolous or harassing, such cases do not

constitute the exclusive list of circumstances under which

Congress determined that an award of costs may be appropriate.

Rather, such cases are simply one obvious example of when a

litigation cost award would be in the public interest. See, e.g.,

S. Rep. No. 414, 92d Cong., 1“ Sess. 81 (1971), reprinted in

1972 U.S. Code Cong. & Amin. News 3668, 3747. The

nia

;

ultimate determination of when an award of attorney fees is

“appropriate” was left to the sound discretion of the district

courts.

II. THE NINTH CIRCUIT’S IMPORTATION OF A

STANDARD EMPLOYED IN CIVIL RIGHTS

CASES INTO THE REALM OF

ENVIRONMENTAL CITIZEN’ SUITS IS

INAPPROPRIATE BECAUSE OF CLEAR

DIFFERENCES IN THE PURPOSES OF THE

STATUTES AND IN THE EQUITIES OF

CITIZEN SUITS BROUGHT PURSUANT TO THE

STATUTES.

In Razore, which was relied on by the courts below, the

Ninth Circuit adopted the restrictive standard that is applied in

awarding attorneys fees to prevailing defendants under the Civil

Rights Act. Razore v. Tulalip Tribes of Washington, 66 F.3d

236, 240 (1995) (adopting the “frivolous, unreasonable. or

without foundation” standard applied in a Title VII case in

Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978)).

The Ninth Circuit’s importation of a civil rights standard into

the realm of environmental citizen suits is inappropriate both

because it violates the fundamental rules of statutory

interpretation discussed above, and because the equities,

policies, and public interest considerations involved in the two

kinds of cases differ greatly. The goals of federal environmental

and civil rights statutes differ, and the role of plaintiffs in

enforcing the statutes differ. Indeed, the dual standard created

by the Ninth Circuit in Razore directly contradicts the purposes

of the Clean Water Act and CERCLA.

A. The Goals of Civil Rights and Environmental

Statutes Differ.

The goals of the two types of statutes differ importantly.

Civil nghts statutes are intended to stamp out all discrimination

against target groups. These statutes reflect a judgment’ that

discrimination of any sort, under any circumstances, is

fundamentally wrong and cannot be tolerated. There is no such

thing as an amount or type of discriminatory treatment that is a

necessary byproduct of a productive economy. Environmental

statutes, by contrast, attempt to balance competing, valid needs.

They are intended to control the amount of pollution that is a

necessary byproduct of economic activity. These statutes set

the maximum level of pollution that Congress, through the

agencies, determines is acceptable, given society’s industrial

needs. See S. Rep. No. 414, 92d Cong., 1“ Sess. 81 (1971),

reprinted in 1972 U.S. Code Cong & Admin. News 3668, 3713

(With respect to setting effluent limitations under the Clean

Water Act, stating, “The Committee has included language in

this section requiring that in the determination of effluent

limitations based on water quality, consideration must be given,

on a case-by-case basis, to a balancing of the economic and

social costs against the social and economic benefits sought to

be obtained”). Not only do most environmental statutes

contemplate that some level of pollution is necessary to sustain

our industrialized economy; they expressly authorize industry to

contribute to this pollution. The amount a particular entity is

legally authorized to pollute is set by government-issued permits

consistent with the applicable statute and implementing

regulations. In fact, the very provision of the Clean Water Act

that was at issue here, Section 402, authorizes the issuance of

NPDES permits for the discharge of prescribed levels of

pollutants. 33 USC § 1342.

One implication of this discrepancy between the goals of

civil rights and environmental statutes is that citizen suits play

different roles with respect to enforcement of the two types of

statutes. Cf. Christiansburg Garment Co. v. EEOC, 434 U.S.

412, 418 (1978) (in civil rights cases, “the plaintiff is the chosen

instrument of Congress to vindicate ‘a policy that Congress

considered of the highest priority’”) (emphasis added) (citing

Newman v. Piggie Park Enter., 390 U.S. 400, 401 (1968), an

earlier civil rights case) with Gwaltney of Smithfield. Inc. v.

Chesapeake Bay Found., 484 U.S. 49, 60 (1987) (the Clean

Water Act citizen suit “is meant to supplement, not supplant,

governmental action”). While in the civil rights context rhe goal

is to maximize meritorious citizen suits in order to eradicate

discrimination, in the environmental context Congress sought to

strike a balance by carefully delineating the role of citizen suits.

See Hallstrom v. Tillamook County, 493 U.S. 20, 29 (1989)

(legislative history of Resource Conservation and Recovery Act

(“RCRA”) indicates an intent to strike a balance between

encouraging citizen enforcement of environmental regulations

and “avoiding burdening the federal courts with excessive

numbers of [citizen] suits”). The policies served by the Clean

Water Act and CERCLA are “more complex, more measured”

than simply maximizing the number of lawsuits brought under

those acts. Cf. Fogerty v. Fantasy, Inc., 510 U.S. 517, 526

(1994). Rather, environmental citizen suits are encouraged only

to the extent that they attack the type and degree of pollution

that Congress has determined is unacceptable, given the need to

balance economic activity with environmental protection, and

only if they do not intrude on the government’s primary

responsibility to protect the environment through agency action.

As a result, in the environmental context, not all citizen

Suits that may otherwise be considered technically meritorious

serve the public interest.* Only those citizen suits that enforce

the balance that Congress struck in the Act truly serve the

public interest, and the district courts should be allowed to

evaluate whether a suit had anv public interest component in

determining whether to award attorney fees to a prevailing

defendant.

For example, Congress has recognized that “citizen suits

are proper only if the Federal, State and local agencies fail to

exercise their enforcement responsibility.” Gwaltney of

Smithfield v. Chesapeake Bay Found., 484 U.S. 49, 60 (1987)

(quoting S. Rep. No. 92-414, p. 64 (1971), reprinted at 2A

Legislative History of the Water Pollution Control Act

Amendments of 1972, p. 1482 (1993)). Recognizing that the

public interest is not advanced by citizen intrusion into

governmental enforcement of the environmental laws, Congress

has prohibited citizen suits where a governmental agency is

“diligently prosecuting” an action to address alleged violations.

33 U.S.C. § 1365(b) (prohibiting citizen suits under the Clean

Water Act where EPA or the state “has commenced and is

diligently prosecuting” an action to enforce an effluent

limitation under the Clean Water Act); 42 U.S.C. § 9659(d)

(prohibiting citizen suits where EPA “has commenced and is

diligently prosecuting” an action under CERCLA or under the

Solid Waste Disposal Act); see also Gwaltney, 484 U.S. at 376

(recognizing the “potentially intrusive” role of citizens groups

where governmental enforcement is underway). Similarly, to

ensure that the cleanup of contaminated sites will not be slowed

or halted by litigation, Congress has barred citizen suits where

a site is subject to an EPA-ordered removal or remedial action

under CERCLA. 42 U.S.C. § 9613(h).

ad See Walter B. Russell, If] & Paul Thomas Gregory,

supra note 4, at 355-58.

Moreover, both the Clean Water Act and CERCLA

require potential citizen-plaintiffs to give 60 days notice of their

intent to sue to an alleged violator as well as to EPA and the

State. 33 U.S.C. § 1365(b)(1)(a); 42 U.S.C. § 9659(d). This

notice “both allows government agencies to take action and lets

the alleged violator cure the violation, either of which would

obviate the need for a citizen suit.” Atlantic States Legal

Found. v. United Musical Instruments, 61 F.3d 473, 476 (6"

Cir. 1995) (citing Hallstrom v. Tillamook County, 493 U.S. 20,

29 (1989)). The principle of prohibiting unnecessary citizen

Suits is also embodied in Section 505(a)(1) of the Clean Water

Act, which forecloses citizen suits for “wholly past” violations.

Gwaltney, 484 U.S. at 63-64; 33 U.S.C. § 1365(a)(1).

As these provisions demonstrate, Congress was not

simply concerned with maximizing the number of citizen suits

brought under the Clean Water Act and CERCLA. Rather.

Congress sought to encourage only those citizen suits designed

to benefit the environment while discouraging lawsuits which

will have little to no beneficial effect on the environment. Suits

brought merely on principle, those which seek retribution for

wholly past violations, and those in which the alleged violation

is already being addressed through governmental enforcement

were prohibited. This case, which was brought merely on

principle for a purely paper violation of the Clean Water Act.

where the State of Washington had already prescribed

restrictive discharge prohibitions, and where plaintiffs lacked

Standing because there was absolutely no harm to the

environment, is a prime example of an action which, although

not patently frivolous according to the district court, does

nothing to further the goals of the Clean Water Act or

CERCLA. As the district court found:

This action turned awkward on the eve of trial.

It became less of a public interest case after

plaintiffs abandoned their claim for injunctive

relief. As the evidence unfolded, it appeared

even less of a public interest case... The point

of this suit was not to close the Aspen Pond and

save the environment. DOE had already done

that.

App. C, at 39a. In such a case, the district court should have

been allowed to exercise its discretion in determining whether

it was appropriate to award attorney fees to Hecla.

B. The Equities of Citizen Suits Brought

Pursuant to the Statutes Differ.

In civil rights cases, the equities tend to be clear. An

individual plaintiff brings suit against a corporate entity that the

plaintiff alleges has discriminated against him. In these cases,

relatively unsophisticated an underfunded plaintiffs can “ill

afford to litigate their claims against defendants with more

resources,” Fogerty, 510 U.S. at 524. By contrast, modern day

environmental litigation is often initiated by large, sophisticated

organizations with significant resources and in-depth knowledge

of the law. See Hallstrom v. Tillamook County, 493 U.S. 20,

28 (1989) (“While the initial charge in a Title VII proceeding is

normally filed by an aggrieved individual . . . citizen suits under

RCRA are like any other lawsuit, generally filed by trained

lawyers who are presumed to be aware of statutory

requirements.”). While many environmental citizen suits are

brought by non-profit environmental organizations, these are

often, as in this case, well-funded professional organizations.

As the district court recognized,

Plaintiffs are public interest groups, but they are

also professional litigants. A Westlaw party

search reveals that Atlantic States Legal

—

Foundation has been involved in at least 45

actions dating back to 1984. Litigants enjoy no

special dispensation from the rules of Federal

procedure just because they happen to be

professional litigants.

App. C, at 50a.

In addition, more and more frequently in environmental

citizen suits, the plaintiff is not an environmental group at all,

but rather a for-profit corporate entity seeking to protect its

Own property or business position. In RCRA and CERCLA

citizen suits, for example, the owner of contaminated real

property may bring suit against the party that sold it the

property or against an adjacent landowner whose operations it

contends originated the contamination. See, e.g., Painewebber

Income Props. Three Ltd. Partnership v. Mobil Oil Corp., 916

F. Supp. 1239, 1241 (M.D. Fla. 1996) (RCRA suit by

landowner against neighboring landowner); Chartrand v.

Chrysler Corp., 785 F. Supp. 666, 668 (E.D. Mich. 1992)

(RCRA and RICO suit by purchaser of contaminated land

against seller of land). Or one corporate entity may bring suit

against a competitor under one of the environmental statutes.

despite the fact that the plaintiff's motive is to protect its own

revenue source, not the environment. See, e.g., Consolidated

Edison Co. v. Realty Investments Assocs., 524 F. Supp. 150,

151 (S.D.N.Y. 1981) (Clean Air Act suit brought by electric

utility against competing electric urility).

These realities of modern environmental litigation

deviate dramatically from the circumstances that led this Court

to adopt a strict standard for awarding attorneys fees to

prevailing defendants under the civil rights statutes in

Christiansburg Garment. See 434 U.S. 412. 421 (1978)

(enunciating limited “frivolous, unreasonable, or without

foundation” standard for Title VII cases). In Christiansburg

Garment, this Court acknowledged that the plaintiff in civil

rights cases is an individual, rather than an organization, and

that the individual plaintiff is seeking to enforce - singlehandedly

- a Congressional policy of “the highest priority.” Id. at 418

(citing Newman v. Piggie Park Enterprises, 390 U.S. 400, 402

(1968)). Nowhere did this Court suggest that its civil rights-

specific ruling should be extended to environmental cases. In

fact, this Court has acknowledged distinctions between the two

types of cases that militate against the blind application of

blanket standards to both types. See Hallstrom v. Tillamook

County, 493 U.S. 20, 28 (1990). Specifically, given the

differing positions that plaintiffs and defendants may have in

citizen suits under the Clean Water Act and CERCLA, unlike

cases brought under civil rights authorities there is no sound

basis for an absolute rule disfavoring recovery of attorney fees

by the defendants in these types of cases.

The Ninth Circuit completely ignored these differing

equities when enunciating its blanket Razore standard. If, as the

plain language of the Clean Water Act and CERCLA direct, the

district courts were free to make case-specific determinations of

whether an award of fees to a prevailing defendant is

appropriate, they could take into account the varying roles of

the parties in the litigation and the presence or absence of a

genuine public interest component in the case. That approach

would promote the goals of these statutes, and produce far

more equitable outcomes in attorney fee awards in these cases.

lil. | THIS COURT SHOULD GRANT THIS PETITION

TO ADDRESS THE PROBLEM OF THE LOWER

COURTS APPLYING DISPARATE STANDARDS

IN AWARDING ATTORNEY FEES TO

DEFENDANTS IN ENVIRONMENTAL CITIZEN

SUITS.

The issue presented in this case is arising with the

increasing frequency of environmental citizen suits nationwide.

Unfortunately, the lower courts are applying no uniform

standard to the award of attorney fees to prevailing defendants

in these suits. The Razore standard is so fully at variance with

the plain language of the statute that the courts seem unsure of

how to reconcile the two. The result is a multiplicity of ad hoc

standards and a needlessly muddied area of the law. Under the

circumstances, it is impossible for citizen suit plaintiffs or

defendants to divine what standard will apply in a given case.

Some courts, such as the Ninth Circuit, blindly apply the Razore

“frivolous, unreasonable, or without foundation” standard. See,

e.g., Consolidated Edison Co. v. Realty Investments Assocs..

L.P., 524 F. Supp. 150, 152-53 (S.D.N.Y. 1981).

Other courts, consistent with the statutory language,

apply a discretionary approach, not articulating any formal

standard for ruling on a defendant’s fee requests, but weighing

the facts to determine whether a fee award is appropriate under

the circumstances. See, e.g., Sierra Club v. Shell Oil Co., 817

F.2d 1169, 1175 (5" Cir. 1987) (noting, “the court is permitted

to award costs of litigation, including attorney and expert

witness fees, to any party whenever the court determines such

award is appropriate,” and upholding district court’s award of

attorney fees in Clean Water Act case to the prevailing

defendant); Pape v. Manistique Papers, Inc., 114 F.3d 1188 (6"

Cir. 1997) (table) (in unpublished disposition of RCRA citizen

suit, court of appeals approves district court’s award of attorney

fees to successful defendant as “appropriate under the

circumstances of this case”); Chartrand v. Chrysler Corp., 785

F. Supp. 666, 669 (E.D. Mich. 1992) (in suit brought under

both RCRA citizen suit authorization and the Racketeer

Influenced and Corrupt Organizations Act, articulating

“appropriateness” standard but denying defendant’s request for

fees, saying, “this Court finds that . . . there has not been any

discovery unique to the RCRA claim as opposed to the other

legal theories posited by the plaintiffs”); Environmental

Compliance Oversight Corp. v. SmithKline Beecham Corp..,

Civ. A. No. 94-1807, 1994 WL 675297, at 3 (E.D. Pa. Nov. 21,

1994) (in RCRA citizen suit, denying defendant fees under

“appropriateness” standard).

Other courts have employed other standards that place

various restrictions on fee awards to defendants. See, e.g.,

Washington Trout v. Scab Rock Feeders, 823 F. Supp. 819,

821 (E.D. Wash. 1993) (in Clean Water Act citizen suit,

employing combination of “meritless, groundless, or without

foundation” standard and “unreasonably and vexatiously”/

“intent, recklessness, or bad faith” standards to deny defendant

attorney fees); PaineWebber Income Props. Three Limited

Partnership v. Mobil Oil Corp., 916 F. Supp. 1239, 1244 (M.D.

Fla. 1996) (in Resource Conservation and Recovery Act

(“RCRA”) citizen suit, applying “intent, recklessness, or bad

faith” standard and denying defendant fees); National Wildlife

Fed. v. Consumers Power Co., 729 F. Supp. 62, 64 (W.D.

Mich. 1989) (in Clean Water Act citizen suit, denying defendant

fees under “frivolous. meritless, or vexatious” standard); Truck

Components Inc. v. Beatrice Co., No. 94 C 3228, 1996 WL

462520, at *12 (N.D. Ill. July 15, 1996) (in citizen suit brought

under RCRA and CERCLA, stating that courts should approach

defendants’ fee requests with “caution” and stating that the

Christiansburg standard is “helpful” in determining whether a

defendant should be awarded fees).

Given the disparity between the plain language of the

“appropriateness” standard contained in the citizen suit

provisions of the Clean Water Act, CERCLA, and other

environmental statutes, and the Ninth Circuit’s blanket

“frivolous, harassing, or without foundation” rule, lower court

confusion over what standard applies to attorney fee requests by

prevailing defendants can only be expected to increase as

environmental citizen suits continue to proliferate. This Court

should review this case to clarify the appropriate standard for

the award of attorney fees to prevailing defendants in this

important and unsettled area of the law.

CONCLUSION

Because this petition raises important issues of federal

law that the lower courts have been unable to resolve in a

unilorm manner, this petition for a writ of certiorari should be

granted

Respectfully submitted,

MARK WIELGA

SCOTT W. HARDT

Counsel of Record

DORSEY & WHITNEY LLP

370 17™ STREET, SUITE 4400

DENVER, CO 80202

(303) 629-3400

Counsel for Petitioners

Dated: November 4. 1998

APPENDIX

APPENDIX A

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WASHINGTON WILDERNESS )

COALITION, ) NOS. 97-35565 &

a Washington nonprofit ) 97-35754

corporation;

OKANOGAN HIGHLANDS )

ALLIANCE, ) D.C. NO. CV-94-00233

a Washington nonprofit FVS

corporation;

ATLANTIC STATES LEGAL _ )

FOUNDATION, ) MEMORANDUM

a New York nonprofit

corporation,

Plaintiffs- Appellants-

Cross-Appellees,

HECLA MINING COMPANY,

a Delaware corporation,

Defendant-Appellee-

Cross-Appellant. )

~This disposition is not appropriate for publication and may not be

cited to or by the courts of this circuit except as provided by Ninth

Circuit Rule 36-3

Appeal from the United States District Court

for the Eastern District of Washington

Fred L. Van Sickle, District Judge, Presiding

Submitted August 4, 1998”°

Seattle, Washington

Before: D.W. NELSON, KOZINSKI, and NOONAN,

Circuit Judges.

The appellant organizations brought suit against Hecla

Mining Company (‘‘Hecla’’) alleging violations of federal

environmental statutes. After a trial before an advisory jury, the

district court granted Hecla’s motion to dismiss the suit on the

ground that the appellants lacked standing. The district court

awarded Hecla a portion of its costs bill. The court declined,

however, to grant Hecla’s motion requesting attorney’s fees.

We affirm.

The appellant organizations lack standing to bring suit

against Hecla. They failed to show that they have suffered any

cognizable injury, as required by Lujan v. Defenders of Wildlife,

~'The panel unanimously finds this case suitable for decision

without oral argument. Fed. R. App. ?. 34(a); 9th Cir. R. 34-4.

Finally, wiih regard to Hecla’s cross-appeal of the district

court’s decision not to award attorney’s fees, we reject Hecla’s

challenge to the application of the standard articulated in

Razore v. Tulalip Tribes of Washington, 66 F.3d 236, 240 (9th

Cir. 1995). Razore is the settled law of this circuit, and the

appellants offer no compelling reason to revisit it.

AFFIRMED.

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

WASHINGTON WILDERNESS )

COALITION, a Washington )

Corporation, OKANOGAN )

HIGHLANDS ALLIANCE,

a Washington corporation, )

and ATLANTIC STATES ) No. CS-94-233-FVS

LEGAL FOUNDATION, INC.. _ )

ORDER

Plaintiffs,

HECLA MINING COMPANY,

a Delaware Corporation,

Defendant.

[rial to the bench concluded on April 1, 1997. Michael

Axline, Richard A. Smith and Charles M. Tebbutt represented

plaintiffs; defendant was represented by Mark Wielga, Scott W.

Hardt and Jerry K. Boyd. This Order will memorialize the

Court's findings and conclusions. FRCP 52(a).

A. Procedural Background

Plaintiffs are environmental organizations whose

representative members are Susan Coleman and Michael

Petersen. Defendant Hecla operates mines throughout the

northwest and is headquartered in Coeur d'Alene, Idaho.

Plaintiffs commenced this action on June 2, 1994 alleging two

causes of action. The first claim was brought under Section 301

of the Clean Water Act [CWA], 33 U.S.C. § 1311, and alleges

that Hecla is discharging pollutants into navigable waters

without a National Pollutant Discharge Elimination System

[NPDES] permit. The second claim was brought under the

comprehensive Environmental Response Compensation &

Liability Act (CERCLA), 42 U.S.C. § 9603(a), which require:

a person in charge of a facility to report to the National

Response Center any release of a hazardous substance in

quantities equal to or greater than allowed by statute as soon as

he has knowledge of such a release. Plaintiffs sought penalties

and injunctive relief.

a eee

Ct. Rec. 80

B. Transactional Background

Hecla's Republic Unit is located several miles north of

Republic, Washington and produced gold and silver from the

turn of the century forward. During the extraction process,

crushed ore is treated with various chemicals including cyanide.

Most of the cyanide is recovered, but minute quantities remain

in solution when tailings are pumped in slurry form from the mill

into a 38 acre impoundment known as Aspen Pond. In addition

to ore tailings, Aspen Pond also received wastewater from the

mine shafts. Additionally, it receives pumped-back water

captured at two seepage collection points.

Aspen Pond is the focal point for geographical orientation.

The facility is regularly oval in shape and covers 38 acres. It

is unlined except for the water containment qualities of the

tailings themselves. It is undisputed the pond seeps, although

the amount of seepage and the degree to which it is recovered

and returned is in dispute. One seep [{"Aspen Seep"] 1s located

to the south of the pond. A collection system returns seepage

a ee a

to Aspen Pond from this location. Another ["Unknown Seep"]

lies to the east. There is no collection system at this location.

Situated to the southeast is former Tailings Pond #1 which was

constructed in the late 1930's. It received tailings between 1937

and 1941 when the embankment washed out during a flood.

Ex. M. The contents flowed down the Eureka Creek drainage

and some came to rest as far as six miles below the pond. Exs.

N & QO. With the exception of a portion of the lower

embankment, the original boundaries of Tailings Pond #1 can no

longer be ascertained. Former Tailings Pond #2 is located to

the west of Aspen Pond. It was also constructed in the late

1930's and in use until the early 1960's when it was

decommissioned and revegetated. A third seep ["Mud Lake

Seep"] is located at its base where water is collected and

returned to Aspen Pond.

Plaintiffs allege that all three ponds are sources of water

pollution: (1) Aspen Pond because it is leaking into

groundwater and from three seep points, one of which finds its

10a

way into Eureka Creek; (2) Pond #1 because although no

longer used in mining operations, tailings still remaining after

the 194] flood continue to leach contamination which finds its

way into Eureka Creek; and (3) Pond #2 which is seeping into

Mud Lake.

Hecla’s predecessor-in-interest obtained a Washington

State waste discharge permit on August 24, 1971, the year prior

to enactment of the CWA. The permit allowed up to 230,000

gallons per day to be discharged to either groundwater or

directly into Eureka Creek. Ex. FF. On November 1, 1976, a

new permut issued which allowed for discharge of up to 274,000

gallons per day to groundwater, but not to surface waters. Ex.

GG. Hecla acquired the property in 1981. In 1984, Hecla

learned the unlined Aspen Pond was responsible for significant

discharge into groundwater. Ex. 8, pages 6-7. An apparent

“smoking gun” was created when a Hecla employee drafted a

memo to his supervisor noting the seepage and advising that it

mught not be wise to confirm this with outside help. The memo

eee

12a

issuing the permit that seepage had been occurring for years

from this unlined pond and would continue to occur so long as

tailings were added. Ex. 5, page 6. Moreover, it is a closure

permit which established a schedule for decommissioning Aspen

Pond and building a replacement fourth pond which would

employ modern technology designed to eliminate seepage.

Effective November 30, 1994, Aspen Pond would be closed.

Litigation followed when Hecla appealed the terms of the

permit to the Pollution Control Hearings Board [PCHB]. Kettle

Range Conservation Group, an environmental organization,

cross-appealed. On May 24, 1994, PCHB denied Hecla's

motion for a stay. Ex. 6. Prior to the hearing on the merits,

Hecla agreed to dismiss its appeal and DOE issued a new permit

on December 29, 1994. Ex. II. The stipulation for settlement

between Hecla and DOE recites that the terms of this permit

“are protective of human health and the environment." This was

the permit in effect at the time of trial.

13a

DOE knew that overnight compliance was impossible.

Hecla was given until July 1, 1995 in which to cease adding

tailings to Aspen Pond and until November 30, 1996 to cease

discharging mine drainage into the pond. Ex. II, page 4. The

permut did not provide for a firm closure date, but did require

Hecla to submit a closure plan by the end of 1995 and required

the company to provide evidence of economic responsibility for

the costs of closure within 90 days after DOE approval of the

plan. Id. at page 8.

According to the DOE official who issued the permit,

Water Quality Section Manager Carl Nuechterlein, Hecla would

be "deemed to be in compliance" with the zero discharge

requirement so long as it was in actual compliance with the

closure schedule. As long as the schedule was maintained,

DOE would not take enforcement action. When a permit holder

exceeds effluent limitations, it is DOE's common practice to

bring the polluter into compliance over a period of time. DOE

takes the position that Hecla has all permits required by law.

16a

jutting out of what had previously been the embankment was a

point source. The culvert was part of a stormwater collection

system designed to channel rain water and snow melt from the

area of Tailings Pond #1. Ex. GG. Remaining for the finder of

fact was whether Hecla was adding pollutants to Eureka Creek

through the culvert and if so whether such discharge was

covered by the stormwater permit.

(3) Tailings Pond #2: The Court also held that Tailings

Pond #2 was a point source as a matter of law. (Ct. Rec. 80,

page 6). The questions remaining for trial were whether this

facility was discharging pollutants into Mud Lake and if so,

whether such discharges were covered by the stormwater

permit.

D. The Advisory Jury Verdict

The jury was a diverse group, the members of which had no

difficulty digesting the evidence and independently forming

concrete opinions. At the same time, they were able to achieve

consensus. Ordinarily, it would be inappropriate to inquire into

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18a

which manifested itself in at least three seeps, two of which

were flowing into surface waters. TR 11-12, 16-17, 21-22. As

to Tailings Pond #1, the jury believed that leaching occurring

between the headwaters of the creek and its entry into the

culvert might have played some role, but the real culprit was

Unknown Seep which ran directly into Eureka Creek, and the

source of the seep was Aspen Pond. TR 3-4, 7-9, 12-13.

Second, the jury wished to punish and deter Hecla. TR 28,

30-31. Hecla knew at least as early as 1984 that seepage was

out of control. Ex. 8, pages 6-7. One of the company’s

perceived failings was to disregard the advice of its consultants.

TR 26-27. The result was not nearly as punishing as it could

have been. The penalty assessed for Unknown Seep was $1 per

day, or rounded up slightly, $3,000 for the relevant time frame

which is substantially less than the $25,000-27,500 per day

which could have been assessed. The penalty assessed for Mud

Lake Seep was $100 per day, or $292,000 for the relevant time |

;

frame. The significance of the jurors’ motivation is that thev

* : : |

20a

neither Mud Lake nor Eureka Creek provide habitat for fish.

Mud Lake freezes over in winter and photosynthesis ceases

when the ice becomes snow covered. It is probable that in

severe winters, the lake freezes solid. These features, coupled

with the decaying vegetation covering the bottom of the lake

render it anaerobic during the winter. Dr. Houghton was

reasonably certain the lake did not currently contain any fish.

Eureka Creek does not provide habitat because of physical

barriers which prevent upstream migration, the dearth of

pooling areas, steep gradient, and the fact that the upper reaches

of the creek go dry in mid-summer.

he jury did not see Hecla's discharges as harmful. As one

member of the jury put it. "you could still drink the water out o1

Mud Lake or Eureka Creek and not perish from it. TR 29. As

nother put it, "So as far as the safety of the water and the

contaminants in the water, to my mind there was no question

that it really wasn't making it hazardous in any way, and there

. . - i ohaah ee

is no concern that in the future there is going to be these terrible

22a

The jury found technical violations, and being unimpressed

with Hecla's responsiveness, imposed a technical penalty of

approximately one-fifth of one percent of what could have been

imposed. The jury approached the lack of injury with such

certainty that it tends to flavor the answer to a question the jury

was not asked to answer. If no injury is shown to the flora and

fauna of the area, or to those who view and/or interact with the

flora and fauna, how can plaintiffs’ representatives show injury

to themselves?

E. Standing

"Article [II limits the jurisdiction of federal courts to ‘cases’

and ‘controversies.’. . . Standing is an essential, core component

of the case or controversy requirement.” San Diego County

Gun Rights v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996). "An

organization can establish standing either by demonstrating that

its members suffered injury in fact for which the organization

Can sue in its representational capacity, or by demonstrating that

the organization itself has suffered injury in fact." Heart of

30a

imposing an access servitude on any lands in which the public

may have an interest. In practice, however, research has failed

to disclose any reported Washington case which has employed

the public trust doctrine to burden a lake front property owner

by opening-his land to all members of the public who wish to

use It.

On the contrary, attempts to apply Wilbour more broadly

have not met with success. Harris v. Hylebos Industries, Inc., 8!

Wn.2d 770, 784-87, 505 P.2d 457 (1973). The general rule

remains that a mparian owner may enjoy exclusive possession of

his land and exclude others. Veach vy. Culp, 21 Wn. App. 454,

458, 585 P.2d 818 (1978), rev'd on other grounds, 92 Wn. 2d

570, 599 P.2d 526 (1979). The fact that one might have a right

to use water does not afford permission to traverse the lands of

another to exercise that right. Id. Illustrative is Kemp v.

Putnam, 47 Wn.2d 530, 288 P.2d 837 (1955), overruled on

other grounds, Save a Valuable Environment (SAVE) v. City of

Bothell, 89 Wn.2d 862. 867, 576 P.2d 401 (1978). Holding

29.

52a

(2) Fishing the Sanpoil: Ms. Coleman fishes in the Sanpoil

River some thirty miles below Republic. The river is fed by

Granite Creek which in turn is fed by Eureka Creek. She

relayed a hearsay statement that the fisheries are in decline.

This is too remote to satisfy standing requirements. Friends of

the Earth, Inc. v. Crown Cent. Petroleum Corp., 95 F.3d 358,

361-62 (Sth Cir. 1996). "Water runs downhill" is a truism. Id.

At the same time, it is a trite truism. The record is silent as to

how diluted Eureka Creek becomes upon entering Granite

Creek and how diluted Granite Creek becomes upon entering

the Sanpoil River. Since Eureka Creek water has itself not been

shown to be hazardous; 1.e., "you could still drink the water. .

. and not perish from it.” it would take a substantial leap of faith

to conclude that events transpiring thirty miles away are fairly

raceable to Hecla's discharges.

(3) Generalized concern: Mr. Petersen expressed a

generalized concern for the future of plants and wildlife. This

is precisely the sort of interest no longer cognizable after Lujan.

(4) Republic water: Mr. Petersen spends some time in

Republic on business and when there drinks the water. Ms.

Coleman works in Republic and drinks the water on a daily

basis. Both are concerned that the city wells may become

affected as time ~ ses. The evidence reflected no scientific

hydrological link between the Republic wells located near the

confluence of Granite Creek and the Sanpoil River other than

the fact that water flows downhill. The only evidence of a

hydrological nexus was to the contrary; i.e., that ground faults

prevent Eureka Creek water from migrating to the well site

Ex. RR. Moreover, testing of the Republic wells has

shown that with a single exception, city water meets water

eee

— This evidence is weak. No expert testified to this at trial

Exhibit RR is a letter from a Hecla unit manager dated November 4,

1994 urging that DOE need not be concerned about the Republic wells

because of the lack of a hydrological connection with the Hecla facility

rhe author does not disclose the basis of hi knowledge. DOE

apparently cid not accept this position because the December 1994

permit continued to require monitoring of the Republic wells. M1

Nuechterlein disclaimed any knowledge of the technical aspects of the

exhibit, but testified that DOE wanted more data before eliminating tk

monitoring requirement. TR 932. Weak or not, Exhibit RR is the or

evidence in the case touching upon the issue

EKxs. RR, SS. The si >

‘ ES CXCEenti

Kx. SS.

36a

1994 closure date. This issue fails both the injury and

traceability prongs of Lujan.

Because plaintiffs, through their representative members,

have demonstrated no particularized injury affecting them in a

personal and individual way as required by Lujan, supra they

have not carried their burden of establishing standing. With

respect to the Republic wells anc the Sanpoil River, even

assuming injury were shown in some theoretical sense, plaintiffs

have not demonstrated traceability.

IT IS HEREBY ORDERED:

This action is DISMISSED for lack of standing.

IT IS SOQ ORDERED. The District Executive is hereby

directed to enter this Order, enter judgment thereon, furnish

copies to counsel and close this file.

DATED this 8th day of May 1997

APPENDIX C

NITED STATES DISTRICT COURT

ASTERN DISTRICT OF WASHINGT*

NO. CS 94-233-FVS

WASHINGTON WILDERNESS

COALITION, a Washington

Corporation, OKANOGAN

HIGHLANDS ALLIANCE, a

Washington corporation, and

.TLANTIC STATES

LEGAL FOUNDATION

38a

Scott W. Hardt and Jerry K. Boyd. This Order will memorialize

the Court's rulings.

Background

After trial to the bench with an advisory jury, the Court

entered findings and conclusions on May 7, 1997 and held that

plaintiffs’ representatives failed to demonstrate particularized

injury and plaintiffs thus lacked derivative standing. Plaintiffs

made no effort to establish organizational standing.

Accordingly, the action was dismissed for lack of jurisdiction.

Defendant's motion for fees and costs followed as did plaintiffs’

motion to retax costs. Plaintiffs also seek a stay pending appeal.

This action turned awkward on the eve of trial. It became

less of a public interest case after plaintiffs abandoned their

claim for injunctive relief. As the evidence unfolded, it

appeared even less of a public interest case. Hecla was

effectively out of business the day PCHB denied its request for

a stay. That occurred prior to suit being filed. Although DOE

relaxed its grip in December 1994 by allowing Hecla additional

40a

(B) Motion for fees.

(1) CWA claim: A prevailing defendant may seek

fees and costs under the CWA.

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 prevailing or substantially prevailing party, whenever

the court determines such award is appropriate.

33 U.S.C. § 1365(d).

To be entitled, a successful plaintiff need only prevail on a

significant point in contention. "All that is necessary is that ‘(1)

as a factual matter, the relief sought by the lawsuit was in fact

obtained as a result of having brought the action, and (2) there

was a legal basis for the plaintiffs' claim.’ " Idaho Conservation

League. Inc. v. Russell, 946 F.2d 717, 719 (9th Cir. 1991)

(citation omitted). The standard under which a prevailing

defendant may obtain fees and costs is more onerous. Razore

v. Tulalip Tribes of Washington, 66 F.3d 236, 240 (9th Cir.

1995). Razore borrowed the standard set out in Christianburg

Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S. Ct. 694, 700

4la

(1978), a Title VII case. A prevailing defendant will be entitled

to fees only if "plaintiff's action was frivolous, unreasonable, or

without foundation, even thcugh not brought in subjective bad

faith." 66 F.3d at 240.

The existence of Unknown Seep was uncontroverted.

Plaintiffs' expert John Monks observed it flowing into Eureka

Creek. TR 63. Defense expert Douglas Frick agreed with this

observation, although he disagreed that the source was Aspen

Pond. TR 640. It was Aspen Pond. Given the constituency of

“eee

chemicals flowing from the seep,” there is no other

explaration. Plaintiffs proved a CWA violation. Unknown Seep

was an unpermitted point source discharging pollutants to

navigable waters of the United States. That is all which is

required. Beartooth Alliance v. Crown Butte Mines, 904 F.

a iasindiadinaiealad |

The advisory jury focused on cyanide as a signature

chemical because while other contaminants may occur naturally in this

mineral rich area, cyanide can be attributed only to mining operations.

Cyanide occurs in nature; e.g., apricot pits, but no one pointed to an

apricot orchard at the Republic Unit. The water-runs-downhill axiom

has its limitations, but Aspen Pond is the only conceivable source of the

cyanide.

42a

Supp. 1168, 1172 (D. Mopt. 1995). Where plaintiffs failed was

in not establishing standing. Congress does not take CWA

violations lightly as evidenced by the stout statutory per-day

penalties. When a party makes out a factual case and fails only

in its jurisdictional case, it is difficult to characterize the claim

as frivolous or unreasonable or without foundation.

Hecla points to authority holding that a prevailing

defendant may be awarded fees under the Christianburg

standard even if the claim is dismissed on jurisdictional grounds.

Elks Nat. Foundation v. Weber, 942 F.2d 1480, 1485 (9th Cir.

1991), cert. denied, 505 U.S. 1206, 112 S. Ct. 2995 (1992).

Weber is distinguishable. In Weber, plaintiffs were litigants in

state court proceedings involving rights in an oil lease.

Dissatisfied with the decision of the state supreme court, they

filed a § 1983 action in federal court naming the members of the

court and seeking declaratory and injunctive relief. Id. at 1483.

What they should have done, of course, is petition the United

States Supreme Court for certiorari because that is the only

44a

Defendant's violation of the CWA and CERCLA have

adversely impacted the plaintiffs’ ability to use and

enjoy these areas and have injured plaintiffs health,

recreational, environmental, and aesthetic interests.

Complaint at { 11.

These representations were not borne out at trial. There

was no testimony that aesthetic values were harmed. There was

evidence that health interests were a concern. Certainly they

were. That is what prompted DOE's action in laying that

concern to rest by closing Aspen Pond. But there was no

evidence that plaintiffs’ representatives personally suffered injury

to their health or faced any scientifically sustainable risk that

they would. There was evidence plaintiffs’ representatives had

"environmental" concerns. Everyone does, but this is not the

sort of particularized harm the case law requires. Finally, there

was testimony that recreational interests were harmed. To

exercise that interest, however, would require plaintiffs’

representatives to become trespassers.

46a

The parties do not cite, and independent research has not

revealed, any decision in which a prevailing defendant has been

awarded fees under this section. However, § 9659(f) is word-

for-word identical to § 1365(d). Given this same wording, and

the parallel goals of CWA and CERCLA, it is probable the

Ninth Circuit would apply the same analysis it did in Razore. peda |

See ASLF v. Onondaga Dept. of Drainage and Sanitation, 899

F. Supp. 84, 87 (N.D. N.Y. 1995).

Plaintiffs’ case rested largely on the premise that dissociated

sodium ions which were at one time a constituent of sodium

cyanide are subject to the same reporting requirements as the |

parent compound. This view was not without support. In re |

Tri-State Mint, Inc., 1994 WL 157571 (E.P.A. 1994). In

denying plaintiffs' motion for summary judgment, the Court did

not reach the legal question, reserving it until the evidence was

in. It would be for the finder of fact to determine whether the

chemical at issue was narmless basic sodium and hence not

reportable or a dissociated form of a reportable substance. If

47a

the latter. it would then be for the Court to decide whether to

adopt Tri-State Mint. Tri-State Mint is weak when applied

here, both because of the decision's a priori reasoning and the

observation that unlike the fact pattern in Tri-State Mint, it is

probably not scientifically possible under the facts of this case

to say where the sodium ions originated. Nonetheless, it was

authority.

In an analogous vein, the Ninth Circuit has counseled

against moving precipitously when a litigant has at least a toe

hold on the law:

NMEC also sought indemnification for Riverhead's

RICO claims. Case law, here also, does not so clearly

bar NMEC's claims as to warrant sanctions. While

courts have held that there is no right to

indemnification or contribution (partial equitable

indemnification) under RICO. . . . neither the 9th

Circuit nor the Supreme Court have disposed of the

issue. With no higher court ruling, it certainly would

not violate Rule 11 for NMEC to argue that such a

right existed.

Riverhead Sav. Bank v. National Mortgage Equity Corp., 893

F.2d 1109. 1117 n.2 (9th Cir. 1990) (citations omitted).

48a

That is a broad statement, and possibly broader than the

Riverhead panel intended. It cannot be that the Couri was

Suggesting that a position which is manifestly frivolous,

disclaimed by every hornbook writer and contrary to the

established law of every other circuit becomes less frivolous

merely because no litigant has ever before had the temerity to

present the argument to the Ninth Circuit. Be that as it may, the

above-quoted passage counsels against penalizing a litigant for

exercising creativity. The evolution of the law would grind to

a halt were that the result. Plaintiffs’ CERCLA claim was weak

when brought and weaker still after entry of the order on

Summary judgment, but it was not frivolous, unreasonable, or

without foundation.

of Hecla's cost bill and awarded only $2,670 of the $21,404

requested. Plaintiffs seek total disallowance of costs on two

grounds: (1) Hecla incurred the costs of trial unnecessarily

because standing should have been challenged by pretrial

49a

motion; and (2) plaintiffs are public interest groups who serve

as private attorneys general and costs should not be assessed so

long as an action is brought in good faith.

(1) Costs unnecessarily incurred: Hecla knew all it was

going to know about its standing case upon deposing plaintiffs’

representatives. The question is whether the defense could have

etiectively made a motion at that time. The motion could have

been made, and it might have been successful, but success was

not certain. The key to the representatives’ asserted injury was

whether there was injury to anything.

If no injury is shown to the flora and fauna of the area,

or to those who view and/or interact with the flora and

fauna, how can plaintiffs’ representatives show injury

to themselves?

(Ct. Rec. 152, page 12).

Predictably, if faced with the motion, plaintiffs would have

pointed to well contamination, loss of habitat, loss of fishing

and loss of recreational opportunities. It would have been

necessary to try the entire case on paper; something courts do

50a

not do when credibility enters into the picture. Hecla may have

had strategy in mind independent of the likelihood of success on

the motion, but after hearing the case live, it seems improbable

that a motion would have been as effective as was trial.

(2) Public interest: Plaintiffs are public interest groups, but

they are also professional litigants. A Westlaw party search

reveals that Atlantic States Legal Foundation has been involved

in at least 45 actions dating back to 1984. Litigants enjoy no

special dispensation from the rules of federal procedure just

because they happen to be professional litigants. The rule in

this Circuit is that costs are awarded as a matter of course and

are denied only if the prevailing party has done something

culpable which merits sanctions. National Information Services,

Inc. v. TRW. Inc., 51 F.3d 1470, 1472-73 (9th Cir. 1995).

Hecla did nothing worthy of punishment.

A court cannot deny properly claimed costs without stating

areason. Id. at 1472: accord, Zenith Ins. Co. v. Breslaw, 108

F.3d 205, 207 (9th Cir. 1997). No such reasons come to mind

Sla

and plaintiffs advance none relative to Hecla's culpability other

than to assert that a pretrial motion on the standing issue should

have been brought. This Circuit has rejected plaintiffs’

contention that the losing party's good faith insulates it from

paying costs. National Information, supra, 51 F.3d at 1472;

accord, Zenith, supra, 108 F.3d at 207. The system expects

good faith on the part of all litigants as a matter of course.

National Information, supra, 51 F.3d at 1472. The inquiry is

not what the losing party has done right, but what the prevailing

party has done wrong.

IT IS HEREBY ORDERED:

(1) Plaintiffs' Motion to Stay (Ct. Rec. 159) is DENIED.

(2) Defendant's Motion for Fees and Costs (Ct. Rec. 154)

is DENIED.

(3) Plaintiffs Motion to Retax Costs (Ct. Rec. 172) is |

DENIED.

IT IS SO ORDERED. The District Executive is hereby

directed to enter this Order and furnish copies to counsel.

52a

DATED this 9th day of July 1997.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.