Opposition Brief — Hecla Mining Co. v. Washington Wilderness Coalition

Supreme Court, U.S.

F I LE D

FEB 4 1999

No. 98-751

_ ee

In The

Supreme Court of the United States

October Term, 1998

* —_

HECLA 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

+

BRIEF OF RESPONDENTS IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

un @

MICHAEL AXLINI

Counsel of Record

Western Environmental Law

Center

1216 Lincoln Street

Eugene, Oregon 97401

(541) 485-2471

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

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Does the Ninth Circuit’s application in this case of

uniform Supreme Court and appellate court precedent on

fee awards in public interest cases provide any reason to

grant a writ of certiorari?

AAP CRETE Ps

CORPORATE DISCLOSURE

Pursuant to Supreme Court Rule 29.6, respondents

state that they have no parent companies, subsidiaries, or

affiliates.

|

111

TABLE OF CONTENTS

QUESTION PRESENTED

CORPORATE DISCLOSURE... 1}

TABLE OF AUTHORITIES iN

STATEMENT OF THE CASE

ARGUMENT ... nets dk waa eb wore 6Aa'e-ak.8 4

I. PETITIONER’S ASSERTION THAT THE CWA

AND CERCLA GRANT UNCONTROLLED DIS-

CRETION TO AWARD FEES AGAINST MER-

[TORIOUS PLAINTIFFS IS INCORRECT ...... 6

A. The Term “When Appropriate” Should Be

Interpreted In Light Of The Purposes Of The

un wnwasce,

B. The Evolution Of Statutory Language In

Post-Clean Water Act Citizen Suit Provisions

Confirms That Congress Approves Of The

Dual Standard For Fees In Citizen Suits ... 12

C. This Court Has Previously Recognized That

It Is Appropriate To Apply Civil Rights Fee

Jurisprudence To Fee Issues In Environmen-

Sa GP ae an ee

D. The Legislative History Of The CWA And

CERCLA Support This Court’s Dual Stan-

dard Approach.................. (eo ee §

Il. THERE IS NO DISCREPANCY AMONG THE

LOWER COURTS FOR THIS COURT TO CLAR-

i 22

Page

(

intic Stat 1 f Onondaga Depart

ent of Draina 1? initation, 899 F.Supp. 84

N.D.N.Y. 1995 23

rfranad hr pr { , » } Supp HHH (ft 8

Mich. 1992 23

tiansbur irment ( FEOC, 434 U.S. 412

Pa a ea a a a ea ree passim

MS lidated cdl n CO. Vv Realty Inve tment . 524

F.Supp. 150 (S.D. N.Y. 1981) ve Se res 14, 23

ironmental Compliance Oversight Corp. v

nithKline Beecham Corp., Civ. A. No. 94-1807,

194 WL 675297 (E.D. Pa. Nov. 21, 1994) 2

gi ited State 417 U.S 116

)7 4) 24

rty intasy, I} 910 U.S. 517 (1994) 8, 9, 10

Eckerhart, 461 U.S. 424 (1982)....... 15

Rowe, 449 U.S. 5 (1980) ....... 5

iependent Federation of Flight Attendants v. Zipes

O98 US. Fae Clipe sca ckcesuse tee ee 6

Keene Corp. v. United States, 508 U.S. 200 (1993) 17

rillard v. Pons, 434 U.S. 575 (1978) ............... 14

Jational Wildlife Federation v. Consumers Power Co.,

429 FSupp. 62 (WD. Mich. 1909). svesccscsewenees

TABLE OF AUTHORITIES - Continued

Page

Natural Resources Defense Council, Inc. v. Train, 510

rues Ore CEK,. CO. Bor aee cckens eancekueeees Gewaues 16

Newman v. Piggie Park Enterprises, Inc., 390 U.S.

SE (OOO 0. 50 ae decent ceseniee eee eee 9

PaineWebber Income Props. Three Limited Partnership

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

EPO) kaa a 6 cheb enkevedebees baaushaceaeeeeee 21, 24

Palumbo v. Waste Technologies Industries, 1994 U.S.

App. LEXIS 29355 (4th Cir. Oct. 20, 1994)......... 21

Pape v. Manistisque Papers, Inc., 114 F.3d 1188 (6th

ed OPEN E Terre per ere er

Pennsylvania v. Delaware Valley Citizens Council,

G70 UI. DOD CHRON) 6 ss hse sees eax ees i eS

Razore v. Tulalip Tribes of Washington, 66 F.3d 236

(thy Cle TOON, oso ho hae 4, 23

Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983)

5d de de ee owe Ok RA Oa ee ae ee ee ee 7, 16, 18, 21

Sierra Club v. Shell Oil Co., 817 F.2d 1169 (5th Cir.

ROOT Ps:4: 65-5290 nba thoes epee eee 22

Truck Components, Inc. v. Beatrice Co., 1996 U.S.

Dist. LEXIS 9946 (N.D. Ill. July 15, 1996).......... 21

United States Steel v. United States, 385 F.Supp. 346

(WVEP. Bs DOG. tds ides casas essbasarseneeesees 13

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

SAD (EEA. Wee. SR eases aceseeubeseeeealss 23, 24

STATUTES

Sy PR Er APP DE Ny tiiar Fateh a aN SuNe LE ae 13

TABLE OF AUTHORITIES Continued

RULES AND REGULATION

Federal Rule of Civil Procedure 39(

122 Cong. Rec. 8300 (March 26, 1976

H. Rep. No. 412, 93d Cong., 1st Sess. 19 (1973 20

~ Rep No. 11, 99th ¢ ong., Ist Sess. 63 (1985) 2

S. Re p No 1196, 9ist ¢ ney 2d Sess 90-D*

(1970) 19

S. Rep No. 128, 95th ¢ ong Ist Sess. 88 (1977) 20

5. Rep. No. 231, 93d Cong., 1st Sess. 17 (1973) 2

S. Rep. No. 414, 92nd Cong., 1st Sess. 81 (1971

reprinted in 1972 U.S.C.C.A.N. 3668 ..10, 17. 19

tS

Rep. No. 852, 94th Cong., 2nd Sess. (1976)

reprinted in 1976 U.S. Code Cong. & Adm

News 4673.....

S. Rep. No. 92-451, reprinted in 1972 U.S.C.C.A.N

4234 .. oe 20

t

Rep. No. 99-50 (1985) 5

Mis ELLANEOUS

1D). Hodas, Enforcement In a Triangular Federal Sys

- ae ol . ee ee

STATEMENT OF THE CASE

Petitioner Hecla Mining Company (“Hecla”) main-

tains a thirty-eight acre impoundment, called Aspen

Pond, at its facility just upstream from the city of Repub-

lic, Washington, to hold wastewater and tailings from its

mining and milling operation. Petitioner’s App. B, at 8a.

The unlined impoundment, full of cyanide and heavy

metals, is perched next to and above Eureka Creek, which

runs down through the city of Republic. Aspen Pond

discharges contaminated wastewater at several points.

Petitioner’s App. B, at 8a-9a. Hecla’s own monitoring

data show that toxic pollutants are escaping from Aspen

Pond, and Hecla knew as early as 1984 that “seepage was

out of control.” Petitioner’s App. B, at 18a. The collection

systems that Hecla installed to capture this seepage are

not effective, and contaminated wastewater flows via

ground and surface water into the Eureka Creek water-

shed and down through the city of Republic. Petitioner’s

App. C, at 41a.

In 1994, the state of Washington issued a permit

expressly prohibiting Hecla from discharging pollutants

from Aspen Pond. Petitioner’s App. B, at 11a.! Despite

this prohibition on discharges from Aspen Pond, and

according to Hecla’s own data, Hecla discharges 31 mil-

lion gallons of wastewater from Aspen Pond into the

Eureka Creek watershed every year.* Cyanide, a highly

' Respondents dispute Hecla’s statement that Hecla’s

prior permits authorized it to discharge to ground and surface

water (Petition at 6).

* Respondents dispute petitioner’s statement that DOE

knew and understood that illegal discharges were occurring.

toxic chemical traceable only to Hecla’s facility, has been

detected in the surface waters of Eureka Creek just out-

side city limits. Metals associated with mine waste have

been detected in city wells at levels just below state

standards, and the state of Washington has ordered Hecla

to monitor city wells for contamination from the mine

site.> Respondents’ members work in Republic, live near

the mine site, and recreate next to a pond that has been

contaminated by Hecla’s illegal discharges.4

Government regulatory efforts were not effective in

controlling Hecla’s illegal discharges. The Washington

Department of Ecology’s (DOE’s) regional director testi-

fied at trial that the DOE has a single enforcement officer

for all of Eastern Washington, and that the agency’s bud-

get has been steadily reduced during the last five years.

Because Hecla’s discharges are illegal and harm or

threaten the health, recreational, and aesthetic interests of

respondents’ members, respondents brought this case

alleging violations of the Federal Water Pollution Control

Petition at 6. Nothing in the record supports this statement. At

most, DOE knew some leakage was occurring, but assumed

bypass-collection systems interrupted and returned those

discharges to the pond.

* Respondents dispute Hecla’s statement that “there was

absolutely no harm to the environment.” Petition at 19.

Respondents demonstrated extensive environmental harm from

cyanide and heavy metals.

+ Respondents dispute Hecla’s statement that respondents

are “well-funded professional organizations.” Petition at 20.

There is absolutely no evidence to support this statement. It was

not raised below, and it simply is not true.

Act (“Clean Water Act” or “CWA”) and the Comprehen-

sive Environmental Response, Compensation and Lia-

bility Act (“CERCLA”). 33 U.S.C. §§ 1251-1387; 42 U.S.C.

§§ 9601-9675.

The district court informed the parties, several days

before trial, that it intended to empanel an advisory jury

pursuant to Federal Rule of Civil Procedure 39(c). At that

point, respondents elected to simplify the case by pursu-

ing only the CWA claim. After a seven-day trial, the jury

found that Hecla had violated the CWA and recom-

mended that the court impose $295,000 in penalties. Peti-

tioner’s App. B, at 7a, 18a. The court, however, granted

Hecla’s post-trial motion to dismiss for lack of standing.

Petitioner’s App. B, at 36a. Following the court’s judg-

ment, Hecla filed a motion for expert witness and attor-

neys fees, and argued that respondents’ claims were

frivolous and brought in bad faith. The district court

rejected the motion. Petitioner’s App. C, at 51a. The court

found that respondents had “proved a Clean Water Act

violation” and reasoned that “when a party makes out a

factual case and fails only in its jurisdictional case, it is

difficult to characterize the claim as unreasonable or

without foundation.” Petitioner’s App. C, at 42a. The

court also rejected Hecla’s argument that respondents’

CERCLA claim lacked foundation. Although respondents

elected not to pursue the CERCLA claim at trial, the

Court nevertheless considered the CERCLA issues pre-

sented to be meritorious. Petitioner’s App. C, at 45a-48a.5

> Respondents dispute Hecla’s assertion that the case “was

brought merely on principle for a purely paper violation.”

Petition at 19. Nothing in the record supports this statement and

In making its fee determination, the district court

followed the Ninth Circuit’s decision in Razore v. Tulalip

Tribes of Washington, 66 F.3d 236 (9th Cir. 1995), which in

turn followed this Court’s decision in Christiansburg Gar-

ment Co. v. EEOC, 434 U.S. 412 (1978). Acknowledging

that it could not meet Razore’s standard, Hecla asked the

Ninth Circuit to overturn its decision in Razore on the

same legal grounds that Hecla raises in its petition to this

Court.® The Ninth Circuit declined to do so, and affirmed

the district court’s decision to deny Hecla’s request for

fees. Petitioner’s App. A, at 4a.

+

ARGUMENT

The CWA and CERCLA authorize courts to award

attorney fees “to any prevailing or substantially prevail-

ing party, whenever the court determines such an award

is appropriate.” 33 U.S.C. § 1356(d); 42 U.S.C. § 9659(f).

The Ninth Circuit, drawing directly from this Court’s

decision in Christiansburg Garment Co. v. EEOC, 434 USS.

412 (1978), awards fees to prevailing defendants only if

the defendants establish that the plaintiff’s claim was

“frivolous, unreasonable, or without foundation.” Razore

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

t is contradicted by the complaint and motions, which address

serious and substantive violations of the CWA and CERCA.

© Respondents appealed the district court’s standing

decision, and the Ninth Circuit affirmed that decision in the

same unpublished opinion denying Hecla’s fee appeal. See

Petitioner’s App. A. Respondents elected not to cross-petition

for certiorari.

Se en

1995) (citing Christiansburg). See also Hughes v. Rowe, 449

U.S. 5, 14 (1980) (applying same standard under 42 U.S.C.

§ 1988). This standard is not unique to the Ninth Circuit.

See infra Part Il (listing cases). The standard, moreover, is

consistent with the plain Janguage and Congressional

objectives of the CWA and CERCLA.

Hecla’s petition, without citing any disagreement

among the circuits of the federal court of appeals, or any

conflict with previous opinions of this Court, asks this

Court to consider adopting a new standard — one that

would remove all limits on judicial discretion and allow

courts to award fees against meritorious, but non-prevail-

ing, citizen respondents. Such a standard would under-

mine the very reason that Congress authorized citizen

suits in the Clean Water Act and CERCLA - to encourage

citizen enforcement of those Acts.? For the reasons

” Although Hecla refers ominously to an increase in the

number of citizen enforcement actions filed since the CWA was

adopted in 1972, Hecla fails to disclose what percentage have

been resolved against plaintiffs. An increase in the number of

meritorious citizen enforcement actions provides benefits

Congress intended. See D. Hodas, Enforcement of Environmental

Law In a Triangular Federal System: Can Three Not Be a Crowd When

Enforcement Authority Is Shared by the United States, the States, and

Their Citizens? 54 Md. L. Rev. 1552, 1574 (1995) (“only extensive

use of citizen suits as private attorneys géneral can safeguard

the enforcement system from collapse and prevent states from

using lax environmental enforcement as an economic

development tool.”). Congress has acknowledged: “Citizen

suits are a proven enforcement tool. They operate as Congress

intended —- to both spur and supplement . . . government

enforcement actions. They have deterred violators and achieved

significant compliance gains.” S. Rep. No. 99-50, at 28 (1985).

More enforcement means more compliance with the CWA and

explained below, Hec!a’s petition for a writ of certiorari

should be denied.

I. PETITIONER’S ASSERTION THAT THE CWA AND

CERCLA GRANT UNCONTROLLED DISCRETION

TO AWARD FEES AGAINST MERITORIOUS

PLAINTIFFS IS INCORRECT

The plain language of the CWA and CERCLA estab-

lishes that Congress intended that courts take into

account the goal of encouraging citizen enforcement

when awarding fees. See 33 U.S.C. § 1365(d); 42 U.S.C.

§ 9659(f) (“The court . . . may award costs of litigation

(including reasonable attorney and expert witness

fees). . . . “) (emphasis added). Hecla argues, however,

that because the statute provides discretion, judicial deci-

sions cannot restrict that discretion by limiting fee

awards to defendants to cases that are frivolous or unrea-

sonable. Petition at 10-15. But courts routinely develop

rules that bound the exercise of statutorily authorized

discretion. See Independent Federation of Flight Attendants v.

Zipes, 491 U.S. 754, 758 (1989) (“Although the text of the

provision does not specify any limits upon the district

courts’ discretion to allow or disallow fees, in a system of

laws discretion is rarely without limits.”). In fact, that is

what this Court did in Christiansburg, supra, with respect

to Title VII. And in this case, Congress specifically

included the phrase “whenever . . . appropriate” in the

statutory language to guide the exercise of discretion in

greater environmental protection. The fact that petitioners

would prefer less enforcement of the CWA is not a reason for

granting a writ of certiorari.

awarding fees.® Hecla’s “plain meaning” analysis over-

looks both this statutory guide to judicial discretion and

this Court’s historic role in guiding the exercise of discre-

tion to award fees.

A. The Term “Whenever... Appropriate” Should

Be Interpreted In Light Of The Purposes Of

The Clean Water Act

Of course, the term “whenever . . . appropriate” does

not fully explain when fees should be awarded. As this

Court recognized in Ruckelshaus v. Sierra Club, 463 U.S.

680 (1983):

[i]t is difficult to draw any meaningful guidance

from . . . use of the word ‘appropriate,’ which

means only ‘specially suitable: fit, proper.’ Obvi-

ously, in order to decide when fees should be

awarded .. . a court first must decide what the

award should be ‘specially suitable,’ ‘fit,’ or

‘proper’ for.

463 U.S. at 683 (internal citations omitted) (emphasis

added).

In the context of statutes that cast citizen plaintiffs in

the role of “private attorneys general,” this Court has

already determined, in Christiansburg Garment Co. v.

EEOC, 434 U.S. 412 (1978), that it is “appropriate” to

impose a more stringent standard on prevailing defen-

dants who seek fees. Although the statutory language at

8 In fact, to remove limits on judicial discretion would

promote inconsistent and ad hoc standards of the type that Hecla

purportedly seeks to avoid. See Petition at 23-25.

issue in Christiansburg did not on its face distinguish

between prevailing parties, such a rule furthers the pur-

poses of the statute. This “dual” standard, Fogerty v.

Fantasy, Inc., 510 U.S. 517, 520 (1994), is the one that the

Ninth Circuit and the district court correctly applied in

denying Hecla’s request for fees in this case.

The rationale for treating prevailing plaintiffs and

prevailing defendants differently for the purpose of

awarding fees in citizen suits is clearly explained in Chris

tiansburg. Christiansburg interpreted the fee provision in

Title VI, which contains language authorizing courts to

award fees to the “prevailing party.”? Like Hecia in this

case, the prevailing defendant in Christiansburg argued

that the plain meaning of Title VII’s fee provision did not

allow courts to treat prevailing plaintiffs and prevailing

defendants differently for the purpose of awarding fees

The Court rejected that argument outright: “[T]he permis-

sive and discretionary language of the statute does not

even invite, let alone require, such a mechanical construc-

tion.” 434 U.S. at 418. Rather than treating the parties

similarly, the Christiansburg court identified two equitable

considerations that compelled a more lenient fee standard

for prevailing civil rights plaintiffs, and a more difficult

standard for prevailing defendants.

The first consideration is that the “plaintiff is the

chosen instrument of Congress to vindicate ‘a policy that

’ Section 706(k) provides, “[T]he court, in its discretion,

may allow the prevailing party . . . a reasonable attorney's fee

(including expert fees) as part of the costs[.]” 42 U.S.C.

§ 2000e-5(k). The fee provisions of the CWA and CERCLA are

virtually identical.

———————————e

y

Congress considered of the highest priority.’ ” 434 U.S. at

418 (quoting Newman v. Piggie Park Enterprises, Inc., 390

U.S. 400 (1968)). The second consideration is that when a

district court awards attorney fees to a prevailing plain-

tiff, it is awarding them against a violator of federal law.

Id. To award fees against a good faith, but non-prevailing

plaintiff, would discourage private enforcement and

undermine the purpose of citizen enforcement provi-

sions. See 434 U.S. at 422 (awarding fees to defendants

“would undercut the efforts of Congress to promote the

vigorous enforcement of the provisions of Title VII”).

Based on these policy considerations, and backed by leg-

islative history indicating that Congress intended to

encourage citizen enforcement and deter frivolous suits,

this Court held in Christiansburg that lower courts could

award fees to a prevailing Title VII defendant only upon

finding that the plaintiff's action was “frivolous, unrea-

sonable, or without foundation, even though not brought

in subjective bad faith.” 434 U.S. at 421.

This dual standard was reaffirmed in Fogerty v. Fan

tasy, Inc., 510 U.S. 517 (1994). Fogerty involved a fee

decision governed by § 505 of the Copyright Act, which

contains fee-shifting language similar to the civil rights

statutes. See 17 U.S.C. § 505. Unlike this case, the circuits

at the time of Fogerty were divided over whether a pre-

vailing defendant seeking fees under the Copyright Act

should be required to establish that the plaintiff’s

infringement claim was frivolous or vexatious. 510 U.S. at

521 n.8. After reviewing the goals and policies of the

Copyright Act, this Court declined to apply the dual

standard, because the equitable considerations of the

Copyright Act are not the same as the civil rights statutes

10

Nor did this Court find Congressional intent in the Copy-

right Act to encourage plaintiffs to bring meritorious

infringement claims. Rather, this Court concluded that

the Copyright Act’s goal of “stimulatling] artistic cre-

ativity for the general public good,” is furthered by vig-

orous claims and defenses. Fogerty, 510 U.S. at 527

(“[D]Jefendants who seek to advance a variety of mer-

itorious copyright defenses should be encouraged to liti-

gate them to the same extent that plaintiffs are

encouraged to litigate meritorious claims of infringe-

ment.”). The Court, however, took the opportunity to

reaffirm that the dual standard is appropriate under other

statutes, including public interest statutes with fee-shift-

ing language virtually identical to the fee-shifting lan-

guage of the Copyright Act. Id. at 522-23.

Unlike the Copyright Act, both of the equitable con-

siderations that persuaded the Court to adopt a dual

standard in Christiansburg are present in CWA and

CERCLA citizen enforcement actions. The citizen suit

provisions in these laws, like the citizen suit provisions in

the civil rights statutes, were enacted to encourage citizen

participation in enforcing the important Congressional

objective of preserving natural resources and preventing

pollution. See, e.g., S. Rep. No. 414, 92d Cong., 2d Sess. 64

(1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3730 (“if the

Federal, State, and local agencies fail to exercise their

enforcement responsibility, the public is provided the

right to seek vigorous enforcement action.”). In addition,

when a court awards fees to a prevailing plaintiff in an

environmental citizen suit, as noted in Christiansburg,

supra, it is awarding fees against a violator of federal law.

1]

Citizen suits provide a secondary benefit that should

be included in the analysis of equitable considerations.

They level the playing field and insure more uniform

compliance, so that conscientious dischargers who com-

ply with the provisions of CERCLA and the CWA are not

at a competitive disadvantage with those who do not

comply. Citizen enforcement “can provide the states,

through dedicated and persistent litigation, with the level

playing field that the federal government cannot provide

on its own.” D. Hodas, Enforcement In a Triangular Federal

System, supra, 52 Md. L. Rev. at 1574-78.

The second equitable factor in Christiansburg also

applies when interpreting the phrase “whenever

appropriate” in the CWA and CERCLA. When plaintiffs

prevail, it means that the fees that are awarded will be

paid by an entity that has been found to be in violation of

the statute. As in Christiansburg, this factor supports

treating prevailing plaintiffs differently than prevailing

defendants. Unlike imposing fees on violators of the law,

awarding fees~against meritorious but non-prevailing

plaintiffs would punish entities for having invested years

of time and effort in performing a civic duty (enforce-

ment of the law) with no expectation of monetary com-

pensation. !°

'0 Hecla implies that the attorneys who represent citizens in

these enforcement actions are mercenaries with pecuniary

interests having nothing to do with enforcement of the statutes.

Petition at 20-22. The mere fact that the attorneys are paid only

if they prevail, however, does not suggest any impropriety.

Hecla’s attorneys, of course, are paid for advocating their

clients interests whether they win or lose, and therefore have

less incentive to advocate only meritorious arguments.

12

In this case, plaintiffs established that Hecla is dis-

charging millions of gallons of toxic wastewater into the

watershed above plaintitts’ community, in violation of a

permit that prohibits such discharges. A jury found that

Hecla was violating the CWA, and recommended that the

court impose $295,000 in penalities. To order plaintiffs to

pay detendant’s attorney fees under such circumstances

would not be “appropriate,” and would certainly deter

other citizens from bringing the sorts of enforcement

actions that Congress so clearly intended.

B. The Evolution Of Statutory Language In Post-

Clean Water Act Citizen Suit Provisions Con-

firms That Congress Approves Of The Dual

Standard For Fees In Citizen Suits

Petitioners argue that because the Pipeline Safety Act

of 1992, 49 U.S.C. § 60121(b), and several other recent

statutes explicitly bifurcate the fee standard for prevail-

ing plaintiffs and prevailing defendants, the absence of

similar language in the CWA and CERCLA means by

negative implication that Congress intended a single

standard to be applied to both parties under the CWA

and CERCLA. Petition at 11. The more explicit bifurcation

in recent legislation, however, merely indicates congres-

sional approval of the dual standard developed by courts

in interpreting the “whenever . . . appropriate” language

of the CWA and other public interest statutes. These

enactments do not indicate that Congress meant some-

thing other than to encourage citizen enforcement under

the CWA.

[he citizen suit and fee-shifting provisions were

added to the Pipeline Safety Act in 1976. Congress

acknowledged that the purpose of the fee-shifting provi-

sions was to “insure effective enforcement and compli-

ance” with the Act. S. Rep. No. 852, 94th Cong., 2nd Sess.

(1976), reprinted in 1976 U.S. Code Cong. & Adm. News

4673. In imposing a more stringent fee standard upon

prevailing defendants, Congress specifically noted that

this provision was consistent with United States Steel v

United States, 385 F. Supp. 346 (W.D. Pa. 1974). United

States Steel interpreted § 706(k) of the civil rights statutes

\lthough § 706(k), like the fee-shifting provisions of the

CWA and CERCLA, does not expressly identify a fee

standard for prevailing defendants, the United States Steel

court applied a dual standard based upon the same rea-

soning later applied by this Court in Christiansburg, and

declined to award fees to a prevailing defendant. By

incorporating the judicially developed dual standard into

the statutory language of the later Pipeline Safety Act

Congress accepted, rather than rejected, the dual stan-

dard approach to interpreting the “whenever appro-

priate” language found both in civil rights statutes and in

the CWA and CERCLA

Congress has twice amended the CWA since the

whenever appropriate” language was adopted in the

citizen suit provision of the Act. See Act of December 27,

1977, Pub. L. No. 95-217; 91 Stat. 1566; Act of February 4,

1987, Pub. L. No. 100-4; 101 Stat 7. At the time of those

amendments, courts were applying the dual standard to

tee awards, and the only case to have addressed the dual

standard in the specific context of a CWA citizen suit had

held that the dual standard was appropriate in such case.

14

See, Consolidated Edison Co. v. Realty Investment Co., 524

F. Supp. 150, 153 (S.D. N.Y. 1981) (defendants may be

awarded fees under CWA only if case was “objectively

frivolous.”). It is well established that “Congress is pre-

sumed to be aware of an administrative or judicial inter-

pretation of a statute and to adopt that interpretation

when it re-enacts a statute without change.” Lorillard v.

Pons, 434 U.S. 575, 580 (1978). Had Congress disagreed

with the judicial interpretations being applied to the

“whenever .. . appropriate” language of the civil rights

laws, the CWA, or CERCLA, it could have corrected that

interpretation. Because it did not, the ratification princi-

ple suggests that Congress agrees with the dual standard

developed by this Court, and its application to a broad

range of public interest statutes with common fee-shifting

language.

C. The Court Has Previously Recognized That It Is

Appropriate To Apply Civil Rights Fee Juris-

prudence To Fee Issues In Environmental Cases

Hecla argues that the Christiansburg standard cannot

be “imported” from civil rights cases into environmental

cases because “the equities, policies, and public interest

considerations involved in the two kinds of cases differ

greatly.” Petition at 15. The differences cited by Hecla,

however, are not differences at all, and support, rather

than undermine, application of the Christiansburg dual

standard to environmental cases.

This Court has previously recognized the similarities

. — . . .

advanced by environmental and civil rights statutes and

the similarity in methods used to achieve those objec-

tives: “Given the common purpose of both [Clean Air

Act] § 304(d) and § 1988 to promote citizen enforcement

of important federal policies, we find no reason not to

interpret both provisions governing attorney’s fees in the

same manner.” Pennsylvania v. Delaware Valley Citizens

Council, 478 U.S. 546, 560 (1986); see also Hensley v.

Eckerhart, 461 U.S. 424, 433 n.7 (1982) (interpreting fee

provisions of section 1988 and of the 1964 Civil Rights

Act similarly).

The legislative history of the citizen suit provision of

the Clean Air Act, on which the CWA and CERCLA

provisions are based, establishes that Congress was influ-

enced by the success of citizen enforcement of the Civil

Rights Act and used the Civil Rights Act citizen suit

provision as a model for the Clean Air Act citizen suit

provision:

Our experience in areas of massive unlawful

racial discrimination . . . tells us that however

hard it might try, government will never have

the manpower, the techniques, or the awareness

necessary to enforce the law for all. Private

enforcement of those laws is the only way the

individual can be assured that rights cannot be

violated with impunity. Pollution control is

another such area. If we are really serious about

controlling the quality of our environment

before it destroys the quality of our lives, we

must give the individual affected by, or con-

cerned about pollution in his life, the power to

stop them through the legal process.

Statement of Attorney General Ramsey Clark in support

of citizen suit provision of Clean Air Act of 1970, reprinted

16

in Natural Resources Defense Council, Inc. v. Train, 510 F.2d

692, 728 (D.C. Cir. 1975). This Court recognized as early

as Ruckleshaus v. Sierra Club, 463 U.S. 680, 682 n.1 (1983),

that “the interpretation of ‘appropriate’ in § 307(f) [of the

Clean Air Act] controls construction of the term in [six-

teen other environmental statutes, including the Clean

Water Act].”

Hecla argues that environmental cases are different

from civil rights cases because civil rights cases involve

absolute bars on certain behaviors, while environmental

cases involve standards developed after balancing compet-

ing environmental and economic interests. Petition at

16-17. This, however, is a distinction without a difference.

Regardless of how a standard is developed or where it is

set, violations of the standard are prohibited. In both civil

rights and environmental cases, Congress sought to enlist

the aid of citizens in enforcing that law and preventing

violations. Hecla cites no authority for the proposition that

Congress was less concerned with violations of environ-

mental laws than it was with violations of civil rights laws,

and Respondents are unaware of any such authority.

Petitioner’s argument that citizen suits supplement

EPA’s enforcement authority, whereas civil rights laws

are enforced directly by injured parties (Petition at 17), is

also beside the point. Congress meant to encourage citi-

zen enforcement in both cases, and the dual standard

adopted in Christiansburg is necessary to achieve Con-

gressional purposes in both cases.!! Perhaps more

11 Petitioners point to the sixty-day notice requirement and

“diligent prosecution” defenses of the CWA and CERCLA as

17

importantly, because plaintiffs in environmental citizen

suits do not stand to gain financially from acting as

private attorneys general, they will be unwilling to risk

prosecuting even meritorious cases if faced with the risk

of paying a defendant’s fees when, as in this case, they

succeed on the merits but lose on a procedural issue. The

interpretation urged by Hecla would thus “render{[ ] the

[citizen suit] statute useless, in all or nearly all instances,

to effect the very object it was originally enacted to

accomplish.” Keene Corp. v. United States, 508 U.S. 200,

213-14 (1993).

D. The Legislative History Of The CWA And

CERCLA Support This Court’s Dual Standard

Approach

Hecla argues that because Congress rejected a provi-

sion that would have made fee awards mandatory under

the CWA, and instead adopted a provision that made

awards discretionary, Congress necessarily meant to

leave courts complete discretion to award fees to either

plaintiffs or defendants. Petition at 14 (citing S. Rep. No.

414, 92nd Cong., 1st Sess. 81 (1971), reprinted in 1972

evidence that “Congress sought to encourage only those citizen

suits designed to benefit the environment while discouraging

lawsuits which will have no beneficial effect on the

environment.” Petition at 19. Again, this observation does not

indicate that Congress was less concerned with enforcement of

environmental laws than civil rights laws. Assuming the sixty-

day notice and diligent prosecution provisions are satisfied, the

analysis is the same — did Congress intend to encourage citizen

enforcement? The answer is yes in both environmental and civil

rights cases.

18

U.S.C.C.A.N. 3668, 3747). Hecla’s conclusion, however, is

not compelled or even supported by the language on

which Hecla relies. A decision to authorize, but not com-

pel, courts to award fees hardly means that Congress

intended courts to have unlimited discretion. The more

direct legislative history of both the CWA and CERCLA

shows that Congress intended to use fee awards to

encourage citizen suits, and limit awards to defendants to

cases in which suits were found to be frivolous or harass-

ing — the very standard that has been consistently applied

by courts, including this Court, in cases where Congress

has authorized citizens to enforce public laws.

The first environmental statute to authorize citizens

to sue and recover fees and costs when they prevail was

the Clean Air Act of 1970 (CAA). The CAA provided that

fees could be awarded to “any party, whenever the court

determines such award is appropriate.” 42 U.S.C.

§ 7604(d). This provision has served as a model for other

environmental citizen suit provisions that have come

after it, including the CWA citizen suit provision. As this

Court noted in Ruckleshaus v. Sierra Club, supra, 463 U.S.

at 682, n.1, “the interpretation of ‘appropriate’ in § 307(f)

controls construction of the term in [sixteen other envi-

ronmental] statutes [including the CWA].” The Senate

Report on the CAA explains the legislative understand-

ing of when an award of fees to a defendant might be

“appropriate”:

Concern was expressed that some lawyers

would use section 304 to bring frivolous and

harassing actions. The Committee has added a

key element in providing that the courts may

award costs of litigation, including reasonable

eS

19

attorney and expert witness fees, whenever the

court determines that such action is in the pub-

lic interest. The court could thus award cost of

litigation to defendants where the litigation was

obviously frivolous or harassing. This should

have the effect of discouraging abuse of this

provision, while at the same time encouraging

the quality of the actions that will be brought.

S. Rep. No. 1196, 91st Cong., 2d Sess. 36-39 (1970) (quoted

in NRDC v. Train, 510 F.2d 692, 725 (D.C. Cir. 1975)). As

noted in Train, 510 F.2d at 728, Congress adopted the fee-

shifting provisions of the CAA citizen suit in part due to

the success of a similar provision in the Civil Rights Act

in forcing compliance with the Act.

The next environmental law adopted by Congress

with a fee-shifting citizen suit provision was the Federal

Water Pollution Contro! Act Amendments of 1972 (later

renamed the Clean Water Act). The fee-shifting language

of the CWA was virtually identical to that of the CAA.

And as with the CAA, Congress made clear that the

“whenever .. . appropriate” language was intended to

encourage citizen enforcers, and provide for awards to

defendants only when cases were “frivolous.” See S. Rep.

No. 414, 92nd Cong., Ist Sess. 81 (1971) (“The court could

thus award costs of litigation to defendants where the

litigation was obviously frivolous or harassing.”).

By the time the citizen suit provision of CERCLA was

adopted in 1986, Congress had echoed the “frivolous or

harassing” language in the legislative history of a number

20

of environmental statutes,'? and it did so again with

CERCLA. CERCLA provides for an award of fees to “the

prevailing or substantially prevailing party whenever the

court determines such award is appropriate.” The Senate

Report accompanying CERCLA states:

As with similar provisions in other environmen-

tal citizens suit laws, this will encourage private

enforcement by allowing such awards to private

'2 See, e.g., Marine Protection, Research, and Sanctuaries Act

of 1972, 33 U.S.C. § 1415(g)(4) (court may award fees to any

party “whenever appropriate”); S. Rep. No. 92-451, reprinted in

1972 U.S.C.C.A.N. 4234, 4249-50 (court may award fees to

defendant if “the court concludes that the purpose of the suit

was harassment. ... ”); Endangered Species Act of 1973, 16

U.S.C. § 1540(g)(4) (court may award fees to party “whenever

the court determines such award is appropriate”); H. Rep. No.

412, 93d Cong., Ist Sess. 19 (1973) (fee provisions are to “be

interpreted in the same fashion” as the MPRSA); Safe Drinking

Water Act, 42 U.S.C. § 300)-8(d) (court may award fees to party

“where the court determines such award is appropriate.”);

S. Rep. No. 231, 93d Cong., 1s: Sess. 17 (1973) (court may award

fees to prevailing defendants only “as a deterrent against

frivolous suits. ... ”); Toxic Substances Control Act of 1976, 15

U.S.C. § 2618(d) (fees may be awarded “if the court determines

such award is appropriate”); 122 Cong. Rec. 8300 (March 26,

1976) (“The standard for awarding fees and costs to a prevailing

defendant is not the same as for a plaintiff because, if it were,

the risk to the average citizen of bringing suit under this section

would be so great that it would discourage such suits”)

(Statement of Senator Tunney in support of S. 3149); Surface

Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1270(d)

(court may award fees to any party “whenever the court

determines such award is appropriate.”); S. Rep. No. 128, 95th

Cong., Ist Sess. 88 (1977) (court may award fees to defendant

only if defendant shows suit was brought in “bad faith” -

standard is intended to be the same as for other environmental

laws).

———————

21

plaintiffs where the court determines the bring-

ing of the action was in the public interest, while

discouraging frivolous suits by allowing costs to

be awarded to defendants in appropriate cases.

S. Rep. No. 11, 99th Cong., Ist Sess. 63 (1985).!3

Congress has extensive experience in drafting citizen

suit legislation, and is well aware of the dual standard

that courts, including this Court, have applied in cases

where citizens have been authorized to enforce public

laws. Congress has consistently expressed approval of

that standard. Far from supporting Hecla’s argument, the

legislative history of the CWA, CERCLA, and other envi-

ronmental legislation supports the Ninth Circuit’s appli-

cation of the Christiansburg standard to Hecla’s fee

application in this case.

3 The Solid Waste Disposal Act (also known as the Resource

Conservation and Recovery Act, or RCRA), contains fee-shifting

language similar to other environmental legislation. 42 U.S.C.

§ 6972(e). Although the legislative history of this provision does

not discuss the dual standard or the meaning of “whenever

appropriate,” courts interpreting the provision have

determined that the dual standard applies, based on this

Court’s reasoning in Christiansburg, Ruckelshaus, and

Pennsylvania v. Delaware Valley Citizens Council, supra. See

PaineWebber Income Prop. v. Mobil Oil, 916 F. Supp. 1239, 1243-44

(M.D. Fla. 1996); Palumbo v. Waste Technologies Industries, 1994

U.S. App. LEXIS 29355 (4th Cir. Oct. 20, 1994); Truck Components,

Inc. v. Beatrice Co., 1996 U.S. Dist. LEXIS 9946 (N.D. Ill. July 15,

1996).

No

N

Il. THERE IS NO DISCREPANCY AMONG THE

LOWER COURTS FOR THIS COURT TO CLARIFY

Hecla’s statement that lower courts are applying “a

multiplicity of ad hoc standards” (Petition, at 23) stems

from a gross misreading of numerous court opinions.

Hecla is attempting to create confusion where none

exists. In reality, lower courts are uniformly applying the

dual standard when making fee determinations in envi-

ronmental citizen suits. Respondents are unaware of any

decision in which a court has applied the unlimited dis-

cretion that Hecla asks this Court to approve. There is

simply no unsettled law for this Court to clarify.

Hecla points to four cases in which, it argues, courts

did apply such a standard. Even a generous reading of

the brief fee discussions in those cases, however, does not

support Hecla’s argument. Other than reciting statutory

language, none of the courts elaborated on the basis for

their fee decisions. Hecla seems to believe that the courts’

recitation of statutory language alone is equivalent to

pronouncing that those courts were using a single discre-

tionary standard, rather than the dual standard endorsed

by this Court. This is not correct.

In Sierra Club v. Shell Oil Co., 817 F.2d 1169, 1175 (5th

Cir. 1987), and Pape v. Manistisque Papers, Inc., 114 F.3d

1188 (6th Cir. 1997), the two cases in which a prevailing

defendant was awarded fees, the claims were summarily

dismissed, one for lack of evidence and the other for lack

of standing and jurisdiction over pendent state law

claims. Without any express statement from these courts

as to the standard they applied, the facts of the cases

strongly imply that the courts used the dual standard

a

and, upon finding the plaintiffs’ claims to be frivolous,

awarded fees to the prevailing defendant. In the remain-

ing two cases cited by Hecla, the courts declined to award

fees to the prevailing defendant. See Chartrand v. Chrysler

Corp., 785 F. Supp. 666, 670 (E.D. Mich. 1992); Environmen

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

1994 WL 675297 (E.D. Pa. Nov. 21, 1994). These cases

contain so little discussion regarding the bases for their

fee decisions, that one can only guess, as Hecla did, as to

the standard that the courts applied.

In contrast, courts throughout the circuits routinely

apply the dual standard and consistently require prevail-

ing defendants to establish, as the Ninth Circuit does,

that a plaintiff’s claim was “unreasonable, frivolous, or

without foundation.” Razore v. Tulalip Tribes of Washington,

66 F.3d 236, 240 (9th Cir. 1995). See Atlantic States Legal

Foundation v. Onondaga Department of Drainage and Sanita-

tion, 899 F. Supp. 84, 87 (N.D.N.Y. 1995) (“frivolous,

unreasonable, or groundless, or that the plaintiff contin-

ued to litigate after it became so”); Washington Trout v.

Scab Rock Feeders, 823 F. Supp. 819, 821 (E.D. Wash. 1993)

(“meritless, groundless, or without foundation”); National

Wildlife Federation v. Consumers Power Co., 729 F. Supp. 62,

63 (W.D. Mich. 1989) (“frivolous, meritless, or vex-

atious”); Consolidated Edison Co. v. Realty Investment

Assoc., 524 F. Supp. 150, 153 (S.D.N.Y. 1981) (“objectively

frivolous”). Hecla’s claim that these virtually identical

standards are “ad hoc” and “confusing” is simply wrong.

Hecla also points to some courts’ references to bad

faith or vexatious conduct as a sign of confusion regard-

ing the proper standard for fee awards. Petition at 24. Bad

faith, however, is a separate and additional ground that,

a 7:

y S. .

if established, would also warrant an award of fees to a

prevailing defendant. See 28 U.S.C. § 1927 (authorizing an

award of fees against any attorney who “multiplies the

proceedings in any case unreasonably and vexatiously”);

F.D. Rich Co., Inc. v. United States, 417 U.S. 116, 129 (1974)

(“We have long recognized that attorney’s fees may be

awarded to a successful party when his opponent has

acted in bad faith, vexatiously, or for oppressive pur-

poses.”). Courts have not required prevailing defendants

to establish bad faith in addition to a groundless or

frivolous claim, but have merely noted that bad faith may

separately justify an award of fees. See, e.g., PaineWebber

Income Props. v. Mobil Oil Corp., 916 F. Supp. 1239, 1242

(M.D. Fla. 1996) (citing common law standard); Washing

ton Trout, 823 F. Supp. at 821 (citing 28 U.S.C. § 1927).

-$- — a

CONCLUSION

Hecla has presented no reason, much less any com-

pelling reason, for this Court to revisit the well estab-

lished standard that prevailing defendants must show

that citizen plaintiffs acted frivolously or unreasonably

before such defendants may recover attorney fees under

the CWA and CERCLA. Respondents respectfully request

that this Court deny Hecla’s petition for a writ of cer-

t1orar

Respectfully submitted

MICHAEL AXLINI

Counsel of Record

Western Environmental Law Center

1216 Lincoln St.

Eugene, OR 97401

(541) 485-247]