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Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York

June 9, 2008


The opinion of the court was delivered by: Scullin, Senior Judge



Currently before the Court is Plaintiffs' motion for supplemental attorney's fees in the amount of $143,305.65 and out-of-pocket expenses in the amount of $8,846.44 for work that their attorneys performed subsequent to the filing of Plaintiffs' prior motion for legal fees and expenses.


On March 31, 2000, Plaintiffs filed a complaint against Defendants alleging violations of the Clean Water Act for Defendant New York City's discharge of turbid water from the Shandaken Tunnel into Esopus Creek, a trout-fishing stream. This Court dismissed the complaint for failure to state a claim. The Second Circuit reversed that decision on October 21, 2001, finding that Defendant New York City's release of turbid water into Esopus Creek was an "addition" of a pollutant and subject to the Clean Water Act's National Pollution Discharge Elimination System ("NPDES") permitting requirements. See Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of N.Y., 273 F.3d 481, 493-94 (2d Cir. 2001). On remand after a bench trial, this Court assessed $5,749,000 in penalties against Defendants, ordered injunctive relief, and directed Plaintiffs to apply for attorney's fees and costs. See Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of N.Y., 244 F. Supp. 2d 41, 57 (N.D.N.Y. 2003). Subsequently, this Court awarded Plaintiffs $192,274.84 in attorney's fees and $81,964.32 in costs and granted Defendants' request to stay the award pending appeal.

Defendants appealed this Court's decision, and Plaintiffs cross-appealed. In June 2003, Defendants requested a stay of the appeal pending the Supreme Court's grant of certiorari and subsequent decision in S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004). Plaintiffs filed an amicus brief in Miccosukee in support of the respondents in that case regarding the issue of whether inter-basin transfers of pollutants constitute additions under the Clean Water Act. The Supreme Court issued its decision in Miccosukee on March 23, 2004, and the parties completed briefing the appeal in this case to the Second Circuit in August 2004.

On August 12, 2005, Defendants filed a motion to submit a supplemental brief to the Second Circuit. Attached to the motion were the supplemental brief and a copy of an Environmental Protection Agency ("EPA") memorandum dated August 5, 2005, which posited that some inter-basin transfers of pollutants were not subject to the Clean Water Act. On August 30, 2005, Defendants requested a stay and an injunction pending appeal from this Court. On September 9, 2005, Plaintiffs filed their response. This Court did not rule on Defendants' motion, and the SPDES administrative adjudicatory hearing proceeded as scheduled on October 17-19, 2005. Plaintiffs participated in that hearing and have been active in the administrative process since its inception. Plaintiffs filed comments on the draft Clean Water Act permit that the New York State Department of Environmental Conservation ("DEC") issued, attended a legislative hearing and an issues conference, and participated as a party in the adjudicatory hearing.

On September 23, 2005, in light of the delay in scheduling oral argument and Defendants' motion in this Court to enjoin the permitting process, Plaintiffs filed a motion to expedite the appeal in the Second Circuit. Plaintiffs also filed a Freedom of Information Act request with the EPA, seeking information that might explain the basis for the EPA's new position on inter-basin transfers of pollutants. Plaintiffs also filed a responsive supplemental brief with the Second Circuit on October 28, 2005, arguing that the EPA's memorandum was not entitled to deference and was based on a flawed interpretation of the Clean Water Act. The Second Circuit denied Plaintiffs' motion to expedite and heard oral argument on the appeal on November 21, 2005. Subsequently, the Second Circuit directed the parties to submit letter briefs regarding 33 U.S.C. § 1312 and New York's analogous variance proceeding. On June 13, 2006, the Second Circuit issued its decision affirming this Court's judgment in favor of Plaintiffs. Defendants petitioned for a writ of certiorari, which the Supreme Court denied.


In addition to seeking attorney's fees and costs for work that their attorneys performed related to the appeal of this Court's decision, Plaintiffs also seek attorney's fees and costs for work related to Plaintiffs' involvement in the State administrative proceeding regarding the SPDES permit and related to Plaintiffs' decision to file an amicus brief in the Miccosukee case.

Defendants object to Plaintiffs' request for attorney's fees and costs, arguing that the Court should substantially reduce Plaintiffs' fee application for several reasons. See Declaration of Hilary Meltzer, dated April 30, 2007 ("Meltzer Decl."), at ¶ 1. Specifically, Defendants assert that the Court should not require them to pay attorney's fees and costs related to Plaintiffs' involvement in the State administrative proceedings regarding the SPDES permit or as amicus in the Miccosukee case because Plaintiffs' "participation in these proceedings was not necessary to protect their rights under, or to compel compliance with, this Court's February 26, 2003 Order . . . [and] Plaintiffs did not prevail either as amici curiae in Miccosukee or as intervenors in the administrative SPDES permit proceedings and therefore are not entitled to fees or costs." See id. at ¶ 2.

For purposes of this motion, the Court will divide Plaintiffs' application into three parts:

(1) fees and costs associated with the State administrative SPDES permitting proceedings; (2) fees and costs associated with the Miccosukee case; and (3) fees and costs associated with the appeals in this case.

A. State Administrative Proceedings

In Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546 (1986), the Delaware Valley Citizens' Council for Clean Air ("Delaware Valley") and the United States filed suit to compel the Commonwealth of Pennsylvania ("Commonwealth") to implement a vehicle emission inspection and maintenance program ("I/M program") as required under the Clean Air Act. Pursuant to a consent decree approved in 1978, the Commonwealth agreed to establish an I/M program for ten counties in the Philadelphia and Pittsburgh areas by August 1, 1980. The consent decree called for the Pennsylvania Department of Transportation ("PennDOT") to seek legislation instituting a franchise I/M system under which the Commonwealth would contract with garage owners for the establishment of inspection stations. If the legislature failed to approve such a system, the consent decree required PennDOT to promulgate regulations allowing the Commonwealth to certify a number of private garage facilities to perform the inspections. In addition, the consent decree provided for the Commonwealth to pay Delaware Valley $30,000 for attorney's fees and costs incurred prior to the entry of the consent decree.

Things did not go smoothly after entry of the consent decree; and, for purposes of analysis, the Supreme Court divided the post-decree period into nine phases. Delaware Valley sought attorney's fees and costs for the work performed after issuance of the consent decree, and the District Court awarded Delaware Valley $209,813 in attorney's fees and an additional $6,675.03 in costs.

Primarily, the hours for which Delaware Valley sought compensation were those spent on the post-decree litigation. However, in Phases II and IX, the Commonwealth argued that Delaware Valley sought "compensation for work done in only tangentially related state and federal administrative proceedings." Id. at 554. The District Court disagreed and concluded that, "because the proposed regulations would have affected Delaware Valley's rights under the consent decree, it had a unique interest in the proceedings that made its work sufficiently related to the litigation to be compensable." Id. (citation omitted).

The Court of Appeals for the Third Circuit affirmed the award, finding that the work in Phases II and IX "'was useful and necessary for securing full enforcement of the decree' . . . ." Delaware Valley, 478 U.S. at 556 (quotation omitted). The Commonwealth sought a writ of certiorari, which the Supreme Court granted.

In the Supreme Court, the Commonwealth argued that "the plain language of the [Clean Air Act] clearly limits the award of fees to 'costs of litigation' for 'action[s] brought' under the Act, and that the lower courts erred in awarding attorney's fees for Delaware Valley's activities in Phases II and IX, both of which involved submission of comments on draft regulations to administrative agencies." Id. at 557-58. The Supreme Court rejected this argument.

The Court explained that,

[a]lthough it is true that the proceedings involved in Phases II and IX were not "judicial" in the sense that they did not occur in a courtroom or involve "traditional" legal work such as examination of witnesses or selection of jurors for trial, the work done by counsel in these two phases was as necessary to the attainment of adequate relief for their client as was all of their earlier ...

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