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

No. 98-751

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IN THE anaes pene

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1998

Hecla Mining Company,

Petitioner,

Ws

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

REPLY BRIEF OF PETITIONER

HECLA MINING COMPANY

Mark Wielga

Counsel of Record

Scott W. Hardt

Dorsey & Whitney, LLP

370 Seventeenth Street, Suite 4400

Denver, CO 80202

(303)629-3400

Counsel for Petitioner

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TABLE OF CONTENTS

SUMMARY OF ARGUMENT .................... 1

AEUSWURETE 6 koe ce cee cae 2

I. THE PARTIES AND AMICI CURIAE AGREE

IT.

THAT THE ISSUE PRESENTED IN THE

PETITION I“ OF NATIONAL SIGNIFICANCE

RESPONDENTS’ ARGUMENT ON THE MERITS

SS UNE ee oi exe oa a eee ess 4

A. Although Rejected By Both the District and

Appellate Courts, Respondents Continue To

Argue Their “Factual” Case............ 4

B. Respondents Have Mischaracterized

Petitioner’s Analysis ................. 5

C. Respondents Suggest Incorrectly That the

Ninth Circuit’s Dual Standard Is Consistent

with Supreme Court Precedent ........ 7

D. Respondents’ Ratification Theory Is

MMO UIE eos sos en es e-e 9

E. The Legislative History Does Not Support

Respondents’ Position ............... 9

aa oy cre hi ta Nese a bows He a 10

il

TABLE OF CITED AUTHORITIES

Cases

Christiansburg Garment Co. v. EEOC,

Pe BOR Ry 5-7

Fogerty v. Fantasy, Inc.,

Piet eR ie \,8

Pennsylvania v. Delaware Valley Citizens Council for Clean

Air, 475 UB; BO ek cc cccc cc cgocees 8

Razore v. Tulalip Tribes of Washington,

66 F.3d 236 (9" Cir. 1995) .................. 6

]

SUMMARY OF ARGUMENT

Both the Respondents and Amici Curiae emphasize

that the issue raised by Hecla Mining Company (“Hecla”) is

one of great national importance, and that its resolution by

this Court will have a substantial impact on the course of

litigation arising under federal environmental laws, such as

the Clean Water Act (“CWA”) and the Comprehensive

Environmental Response, Compensation and Liability Act

(“CERCLA”). Given the pervasiveness of such litigation,

the Court’s decision in this case will impact essentially

every industrial sector of the U.S. economy.

Turning to Respondents’ arguments on the merit 3,

Respondents mischaracterize Hecla’s position, and this

Court's analysis in other attorneys fee cases. Respondents’

argument boils down to the untenable propositions that the

plain language of the CWA and CERCLA should be ignored,

and that because federal environmental laws supposedly

serve the same purposes as the federal civil rights laws,

they should be interpreted identically. However, the

unique role played by plaintiffs seeking to enforce their

rights under the civil rights laws is unmatched by the role

of environmental groups seeking to litigate under the

federal environmental laws. Consequently, given the plain

language of the CWA and CERCLA, and the distinct

purposes served by those laws, there is no defensible reason

to treat prevailing plaintiffs and defendants who seek

recovery of their attorney fees under these statutes in the

dramatically disparate manner dictated by the Ninth

Circuit’s dual standard.

Because there is complete agreement among the

parties that the issue presented in the Petition is of great

importance, and because the Ninth Circuit’s decision

departs from sound legal analysis, Hecla’s Petition should

be granted.

2

ARGUMENT

I. THE PARTIES AND AMICI CURIAE AGREE

THAT THE ISSUE PRESENTED IN THE

PETITION IS OF NATIONAL SIGNIFICANCE

The CWA and CERCLA are two of the most

ubiquitous federal environmental laws. See, e.g., Amici

Curiae Brief, pp. 3-4. Respondents concur with Hecla that

the interpretation of the attorney fee provisions of these

statutes is of great significance. Respondents agree that

the operation of these provisions dramatically impacts how

environmental citizen suit provisions are utilized by

environmental organizations and _ other _ citizens.

Respondents conclude that the dual standard applied by the

U.S. Court of Appeals for the Nin‘h Circuit creates

significant incentives for bringing pr.vate citizen suits

—_——————omder~ federal environmental laws, and that an

interpretation that allowed district courts greater

discretion to award fees to prevailing defendants would

substantially affect decisions as to when and whether such

suits would be brought. Brief of Respondents in Opposition

to Petition for Writ of Certiorari (“Opposition”), pp. 9, 17.

The conclusion that this is an important national

issue is echoed by Amici Curiae Chamber of Commerce of

the United States of America, National Association of

Manufacturers, National Mining Association, Corporate

Environmental Enforcement Council, American Forest and

Paper Association, Inc., and Alaska Mining Association.

These amici curiae represent a broad cross-section of

industries and business owners in this country, who are

impacted by environmental citizen suits. Amici Curiae

Brief, pp. 1-2. As the amici point out, the issue raised by

Hecla is important to hundreds of thousands of businesses

in this country since the interpretation of the attorneys fee

provisions under the federal environmental laws not only

influences what suits will be brought, but also dramatically

impacts the manner in which citizen suits are defended. Id.

at 13-17.

Respondents do not dispute that there has been a

substantial increase in the number of citizen suits brought

in recent years under federal environmental laws, such as

the CWA and CERCLA. Opposition, p. 5, n. 7.

Respondents suggest only that if the majority of these suits

were won by plaintiffs, this rise in litigation would be

beneficial and consistent with Congress’ intent. Id

However, Respondents provide no basis for even suggestin,

that such are the facts. Instead, as discussed in the Brief

of Amici Curiae, and as evidenced by the few reported cases

arising under the federal environmental laws that have

gone to trial, the vast majority of such suits settle out of

court. Amici Curiae Brief, pp. 14-15. The mere fact that

defendants have settled these cases given the strong

disincentives to defend lawsuits created by the dual

standard for attorney fee awards, is not evidence that the

purposes of federal environmental statutes are being

furthered. To the contrary, the widespread settlement of

such cases suggests that the cost of settling even “winnable”

cases is increasingly being treated as a cost of doing

business in this country. While this may provide a de facto

lawyer employment fund financed by consumers of products

manufactured in this country, that certainly was not

Congress’ intent in enacting federal environmental statutes

such as the CWA and CERCLA.

Because the interpretation of the attorney fee

shifting provisions under the CWA and CERCLA is a

significant issue that affects a broad cross-section of society,

Hecla’s Petition for Writ of Certiorari should be granted.

4

Il. RESPONDENTS’ ARGUMENT ON THE

MERITS IS UNPERSUASIVE

A. Although Rejected By Both the District

and Appellate Courts, Respondents

Continue To Argue Their “Factual” Case.

In an attempt to persuade this Court that what the

Ninth Circuit did in this case was acceptable regardless of

whether a dual standard properly applies, Respondents

reiterate many of their factual allegations that were

rejected by the lower courts. See, e.g., Opposition, pp. 1-3.

In the end, Respondents ask this Court to believe that their

suit served an important role in somehow eliminating a

substantial source of pollution that the State of Washingtcn

was ignoring. Id. at 2.

The lower courts recognized that Respondents’

characterization is untrue. As summarized in Hecla’s

Petition, the State of Washington was closely regulating

Hecla’s historic mine site and had directed Hecla to cease

all discharges in accordance with a specific schedule.

Petition, p. 6. As a result, the Respondents’ suit could not

possibly serve any environmental protection purpose, and

was brought solely to further penalize Hecla by seeking

additional exactions, including fees for Respondents’

lawyers. Apparently recognizing that there was nothing

more that could be done to protect the environment,

Respondents dropped their claim for injunctive relief prior

to trial. Petition, p. 7.

Contrary to Respondents’ suggestion that this is a

case where attorney fees were properly denied, even if the

Ninth Circuit’s dual standard is inappropriate, this case

exemplifies the types of circumstances that district courts

should be permitted to consider in evaluating whether to

award attorney fees to a prevailing defendant. The Ninth

5

Circuit's dual standard improperly prohibits such an

evaluation.

B. Respondents Have Mischaracterized

Petitioner’s Analysis

In a misguided effort to minimize Hecla’s position,

Respondents suggest that Hecla is arguing that prevailing

plaintiffs and prevailing defendants should always be

treated identically for purposes of awarding fees.

Opposition, p. 8. That is not Hecla’s position. As detailed

in its Petition, it is Hecla’s position that, in accordance with

the plain language of the CWA and CERCLA, and Congress’

intent in enacting those statutes, district courts should

have discretion in determining whether a prevailing

defendant should be awarded fees based upon its evaluation

of the particular facts of the case before it. What Hecla

objects to is the Ninth Circuit’s dual standard which

narrowly circumscribes the circumstances under which a

district court may award attorney fees to a prevailing

defendant, and prohibits district courts from considering

most of the facts before it. Consequently, Respondents’

argument that this Court has rejected a single “mechanical”

standard for awarding attorney fees to prevailing plaintiffs

and defendants under Title VII is irrelevant. Opposition,

p. 8 (discussing Christiansburg Garment Co. v. EEOC, 434

U.S. 412 (1978)).

Attempting to further “radicalize” Hecla’s position,

Respondents repeatedly suggest that under Hecla’s

analysis, district courts would have “uncontrolled” or

“unlimited” discretion in awarding fees, and would be free

to ignore Congress’ purposes in enacting the CWA and

CERCLA. Opposition, pp. 5, 6, 17, 18. Again, Respondents’

characterization of Hecla’s argument is misleading. Hecla

argues that the dual standard adopted by the Ninth Circuit

is contrary to the purposes of the CWA and CERCLA, and

6

that district courts should be free to consider other factors

that are consistent with Congress’ purposes. In both this

case and in Razore v. Tulalip Tribes of Washington, 66 F.3d

236 (9 Cir. 1995), the Ninth Circuit summarily adopted

the Christiansburg dual standard that this Court employed

to further Congress’ specific purposes in enacting Title VII

of the Civil Rights Act. The Ninth Circuit never even

considered Congress’ purposes in enacting the CWA or

CERCLA.

What Hecla challenges in its Petition, is the Ninth

Circuit’s thoughtless transferral of a standard from the civil

rights context to the realm of federal environmental

regulation, which serves a dramatically different purpose

in American society. Both Hecla and Amici Curiae have

elaborated on the many differences between civil rights

laws and federal environmental laws, such as the CWA and

CERCLA. Petition, pp. 15-20; Amici Curiae Brief, pp. 10-

14. Given those differences, there is no justification for

applying Christiansburg’s dual standard to the CWA and

CERCLA. However, that does not mean that district courts

may ignore the purposes of those statutes in exercising

their discretion to award fees. Obviously, the purpose of

the underlying statute is a factor the district courts should

consider. Hecla’s position is entirely consistent with this

Court’s analysis in Fogerty v. Fantasy, Inc., 510 U.S. 517

(1994), wherein the Court rejected transferral of

Christiansburg’s dual standard to another statutory

context, but pointed out that Congress’ statutory purposes

are still relevant. In identifying some of the factors a

district court may consider when exercising its discretion to

award fees to a prevailing defendant under the Copyright

Act, the Court pointed out that consideration of a range of

factors is appropriate “so long as such factors are faithful to

the purposes of the Copyright Act.” 510 U.S. at 535, n. 19.

7

Contrary to Respondents’ suggestion that Hecla

would throw out the baby with the bathwater, the purposes

of the CWA and CERCLA would remain important to a

court’s analysis in the absence of a dual standard. The

issue before this Court is not whether federal district courts

should have “unlimited” discretion to award attorney fees

to prevailing defendants, but whether they should have

discretion to weigh all of the facts before them, in light of

the purposes Congress sought to promote in enacting the

particular statute at issue.

C. Respondents Suggest Incorrectly That

the Ninth Circuit’s Dual Standard Is

Consistent with Supreme Court

Precedent

Respondents are incorrect in suggesting that the

Ninth Circuit’s importation of a dual standard into the

CWA and CERCLA is consistent with Supreme Court

precedent. Respondents state that, in Christiansburg, this

Court held that a dual standard for attorneys fee awards

should apply to all statutes in which citizen plaintiffs act as

private attorneys general. Opposition, p. 7. There is

simply nothing in Christiansburg whatsoever to suggest

that the Court’s holding had such breadth. Instead,

Christiansburg’s holding was narrowly tailored based upon

a detailed analysis of Congress’ intent in enacting Title VII

of the Civil Rights Act. 434 U.S. at 418-22.

The differences between the purposes of Title VII,

and the CWA and CERCLA are many. For example, as

Respondents highlight, a primary reason for this Court’s

adoption of a dual standard under Title VII was its

conclusion that individual plaintiffs were “the chosen

instrument of Congress to vindicate ‘a policy that Congress

considered of the highest priority.’ ” Opposition, pp. 8-9

(quoting, Christiansburg, 434 U.S. at 418). However, as

8

discussed by Hecla and Amici Curiae, Congress determined

that the federal and state governments were to have

primary enforcement authority under the CWA and

CERCLA, and that citizens were to play a secondary,

supportive role. Petition, p. 17; Brief of Amici Curiae, pp.

12-13. Thus, in contrast to the civil rights laws, Congress’

intent in enacting the citizen suit provisions of the CWA

and CERCLA was “more complex, more measured than

simply maximizing the number” of suits brought.” Fogerty,

510 US. at 526.

Respondents now ask this Court to ignore the

delicate balance that Congress struck under the CWA and

CERCLA, whereby Congress sought to control and limit

pollution caused by industry, while ensuring the continued

economic viability of this country. Unlike the Civil Rights

Act, where Congress determined that no discriminatory

behavior is appropriate, Congress has recognized that some

“pollution” is a necessity in conteinporary society.

Providing some incentive for businesses to actively defend

questionable citizen suits, rather than simply passing on

the costs of a quick settlement to consumers as a cost of

doing business in this country, fully promotes Congress’

purposes in enacting the CWA and CERCLA.

1 Citing Pennsylvania v. Delaware Valley Citizens

Council for Clean Air, 478 U.S. 546 (1986), Respondents suggest that

this Court has already held that the citizen suit provisions of federal

environmental statutes and civil rights statutes should be interpreted the

same. Opposition, pp. 14-15. That is incorrect. In Delaware Valley, the

court compared these areas of law in considering only whether fees could

be recovered by a prevailing plaintiff for time spent in certain

administrative activities. The court did not in any way consider the issue

presented here, or the unique roles that citizen plaintiffs play under the

two statutory schemes.

9

D. Respondents’ Ratification Theory Is

Insupportable

Respondents’ suggestion that Congress somehow

ratified use of a dual standard under the CWA and

CERULA is untenable. Plaintiffs assert that by expressly

incorporating a dual standard in the Pipeline Safety Act of

1976, Congress was somehow acknowledging that every

time it used the very different language authorizing a fee

award “whenever appropriate,” it was really intending to

apply a dual standard. Opposition, pp. 12-13. That

suggestion is ridiculous. Congress’ enactment of the

Pipeline Safety Act in 1976 shows that Congress knew how

to spell out a dual standa’d when it intended such a

standard to apply. When Congress subsequently enacted

CERCLA in 1980, it did not use dual standard language

even though it had clearly done so in prior legislation where

it intended such an interpretation. Congress’ decision not

to use express dual standard language in CERCLA or when

it amended the CWA demonstrates its intent that a dual

standard not apply.

E. The Legislative History Does Not

Support Respondents’ Position

Respondents argue that the legislative history of the

CWA and CERCLA support application of a dual standard.

because Congress acknowledged that a defendant would be

protected from frivolous suits by the attorney fee recovery

provisions. Opposition, pp. 17-21. However, rather than

suggesting that prevailing in a frivolous lawsuit is the only

situation where a defendant could recover its attorney fees,

Respondents’ selected references merely suggest that is one

circumstance where a prevailing defendant is entitled to its

fees.

10

That Congress believed the attorney fee recovery

provisions would protect defendants from frivolous suits in

no way supports a conclusion that there are no other

circumstances under which a prevailing defendant should

be allowed to recover its fees. This Court clearly

acknowledged that in Fogerty, 510 U.S. at 535, n. 19. In

rejecting application of a dual standard under the

Copyright Act, the Court acknowledged that there are

several factors that a district court should consider in

determining whether an attorney fee award to a prevailing

defendant is appropriate. Id. The Court stated that such

factors include frivolousness, as well as motivation,

objective unreasonableness, and the need in particular

circumstances to advance considerations of compensation

and deterrence. Id. Thus, the recognition that

frivolousness is one factor that a district court may consider

in determining whether attorney fees are appropriate for a

prevailing defendant in no way indicates that a narrow dual

standard applies under which that is the only circumstance

when fees may be awarded.

CONCLUSION

For the reasons stated above, in Hecla’s Petition and

in the Brief of Amici Curiae, Hecla’s Petition For Writ of

Certiorari should be granted.

Respectfully submitted,

MARK WIELGA

Counsel of Record

SCOTT W. HARDT

DORSEY & WHITNEY LLP

370 17™ STREET, SUITE 4400

DENVER, CO 80202

Dated: (303) 629-3400

February 12,1999 Counsel for Petitioners