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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1004

## Text

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]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1141%3A2. Public record. Not legal advice.