SAINT JOHN‘S ORGANIC FARM; Peter Dill, individually, Plaintiffs-Appellants, v. GEM COUNTY MOSQUITO ABATEMENT DISTRICT, a political subunit of the State of Idaho; Gem County, State of Idaho, a political unit of the State of Idaho, Defendants-Appellees.
No. 07-35797
United States Court of Appeals, Ninth Circuit
July 16, 2009
Amended Aug. 3, 2009
574 F.3d 1054
Argued and Submitted March 10, 2009.
Susan E. Buxton, Moore Smith Buxton & Turcke, Mark L. Pollott, Murray D. Feldman, Holland & Hart, LLP, Michael John, Kane, Boise, ID, for the appellee.
Before: W. FLETCHER, RONALD M. GOULD and RICHARD C. TALLMAN, Circuit Judges.
Opinion by Judge WILLIAM A. FLETCHER; Concurrence by Judge TALLMAN.
ORDER AND AMENDED OPINION
ORDER
The opinion filed in this matter on July 16, 2009, 2009 WL 2053143, is amended as follows:
1. The party caption is amended to delete the reference to intervenor parties and now reads:
“SAINT JOHN‘S ORGANIC FARM; PETER DILL, individually, Plaintiffs-Appellants, v. GEM COUNTY MOSQUITO ABATEMENT DISTRICT, a political subunit of the State of Idaho; GEM COUNTY, STATE OF IDAHO, a political unit of the State of Idaho, Defendants-Appellees.”
2. The counsel listing is amended to delete any reference to counsel for intervenor parties and now reads:
“William M. Eddie, FIELD JERGER, LLP, Portland, OR, Charles M. Tebbutt, WESTERN ENVIRONMENTAL LAW CENTER, Eugene, OR, for the Appellants Susan E. Buxton, MOORE SMITH BUXTON & TURCKE, Boise, ID, Mark L. Pollott, Boise, ID, Murray D. Feldman, HOLLAND & HART, LLP, Boise, ID, Michael John Kane, Boise, ID, for the Appellee”
OPINION
WILLIAM A. FLETCHER, Circuit Judge:
Plaintiffs Saint John‘s Organic Farm and Peter Dill (collectively, “Dill“) filed suit under the citizen-suit provisions of the Clean Water Act (“CWA“),
The Settlement Agreement (“Agreement“) limited GCMAD‘s pesticide spraying in several ways and provided that an application for “costs of litigation (including reasonable attorney and expert witness fees)” under
I. Background
This case arises out of GCMAD‘s longstanding use of pesticides to control mosquitoes in Gem County, Idaho. Among other measures, GCMAD has applied adulticides—pesticides used to kill adult mosquitoes—by spraying from airplanes and “fogging” from trucks. Dill sent GCMAD a notice of intent to sue pursuant to
After the EPA refused to grant a permit to GCMAD, the parties engaged in preliminary settlement talks. Before a settlement was reached, however, GCMAD brought suit against the EPA and Dill in federal district court for the District of Columbia. GCMAD sought a declaratory judgment that either it was not required to obtain a permit or that the EPA was required to issue it a permit. However, GCMAD consistently contended in that court that a permit was not required. Dill responded by filing suit in federal district court in Idaho. As he had alleged in his intent-to-sue letter, Dill again alleged that GCMAD was violating the CWA by discharging pesticides (not limited to adulticides) into the waters of the United States without an NPDES permit. The district court in Idaho stayed proceedings pending resolution of the suit in D.C. district court.
The D.C. district court dismissed GCMAD‘s suit in January 2003. Gem County Mosquito Abatement Dist. v. EPA, 398 F. Supp. 2d 1, 4 (D.D.C. 2005). It held that there was no case or controversy between GCMAD and the EPA because both parties took the position that no permit was required. Id. at 6-8. It further held that venue in D.C. was improper for GCMAD‘s claim against Dill. Id. at 12-13. GCMAD appealed this decision to the D.C. Circuit, but then dismissed its own appeal. GEM County Mosquito Abatement Dist. v. EPA, 2005 WL 3789086 (D.C. Cir. Sept. 8, 2005).
The Idaho district court lifted its stay in March 2005. In July 2006, the parties filed a Settlement Agreement (“Settlement Agreement” or “Agreement“) with the district court. The Agreement requires GCMAD: (1) to make a concerted effort to substantially reduce over five years its use of adulticides by attempting to meet yearly targets for reduced use; (2) not to engage in aerial spraying of adulticides except in the event of a declared health emergency; (3) not to engage in truck fogging of adulticides within 300 feet of the Payette River; on the Payette River Wildlife Management area or within 300 feet of a section of that area; or on or within 150 feet of any irrigation canal in the county; (4) to conduct surveillance monitoring and upgrade surveillance activities for mosquitoes and apply mosquito threshold standards before fogging; (5) to contribute funds annually to the Gem County Soil and Water Conservation District to help improve drainage in order to facilitate reduction of mosquito habitat; (6) to participate in a state planning committee on the West Nile Virus; (7) to work with landowners to eliminate mosquito habitat; and (8) to apply reasonable standards, take reasonable steps, and consider all relevant factors when complying with requests from property owners that their property not be sprayed.
The Agreement provides that the district court should retain jurisdiction to enforce its terms. Finally, the Agreement provides, “The parties have not agreed on the issues of attorney fees and costs. The parties agree that the Court will retain jurisdiction to decide any applications for attorney fees and costs pursuant to
Dill applied to the district court for attorney‘s fees. The district court denied Dill‘s application under
II. Standard of Review
We review the district court‘s award or denial of attorney‘s fees for abuse of discretion. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1118 (9th Cir. 2000). Under this standard, we review the district court‘s factual findings for clear error and review de novo its legal analysis. Id.
III. Discussion
Section 505(d) of the CWA provides:
The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate.
A. “Prevailing or Substantially Prevailing Party”
Dill contends that he is a prevailing party within the meaning of
A litigant qualifies as a prevailing party if it has obtained a “court-ordered ‘chang[e] [in] the legal relationship between [the plaintiff] and the defendant.‘” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep‘t of Health & Human Res., 532 U.S. 598, 604, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001) (alterations in original) (citation omitted). “[T]he plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant.” Tex. State Teachers Ass‘n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792, 109 S. Ct. 1486, 103 L. Ed. 2d 866 (1989). Following Buckhannon and Texas State Teachers, we have held that parties must have obtained judicially enforceable “actual relief on the merits of [their] claim that materially al-
We divide our application of Richard S. to the Settlement Agreement into three parts: (1) judicial enforcement; (2) material alteration of the legal relationship between the parties; and (3) actual relief on the merits of Dill‘s claim.
First, we conclude that the terms of the Agreement are judicially enforceable. The Agreement specifically provided that its terms would be enforceable by the district court. Pursuant to the Agreement, the district court‘s order dismissing Dill‘s complaint provided, “The Court expressly retains jurisdiction over the matter for the purposes of (i) enforcing the Settlement Agreement entered into between the parties and the terms of the Settlement Agreement are incorporated herein by reference, and (ii) deciding any applications for attorney fees and costs pursuant to
Second, we conclude that the Agreement effected a material alteration in the legal relationship between the parties. Dill and GCMAD did not agree in the district court on whether, or how much, GCMAD‘s behavior was changed as a result of the Agreement. Dill contended that the Agreement required GCMAD to change the manner in which it had been applying, and would apply, adulticides. However, GCMAD contended that the Agreement required it to do only what it was already doing and would continue to do. The district court declined to resolve this dispute. But the court noted that even if the Agreement required GCMAD to do only what it was already doing, it was undisputed that GCMAD‘s behavior became legally required rather than voluntary as a result of the Agreement.
Third, for the reasons that follow, we conclude that Dill achieved actual relief on the merits of his claim. To achieve such relief, a plaintiff must receive some actual relief that serves the goals of the claim in his or her complaint. As explained below, the relief achieved need not be of precisely the same character as the relief sought in the complaint, but it must require defendants to do something they otherwise would not have been required to do.
The threshold for sufficient relief to confer prevailing party status is not high. “If the plaintiff has succeeded on any significant issue in litigation which achieve[d] some of the benefit the parties sought in bringing suit, the plaintiff has crossed the threshold to a fee award of some kind.” Tex. State Teachers, 489 U.S. at 791-92 (alteration in original) (internal quotation marks omitted). In Farrar v. Hobby, 506 U.S. 103, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992), the Supreme Court made clear how little actual relief is necessary. Plaintiffs had received only nominal damages at trial, even though in the complaint they had sought substantial actual damages. The Court nonetheless held that the plaintiffs were eligible for attorney‘s fees as prevailing parties, explaining that “a plaintiff who wins nominal damages is a prevailing party” because a “judgment for damages in any amount, whether compensatory or nominal, modifies the defendant‘s behavior for the plaintiff‘s benefit by forcing the defendant to pay an amount of money he otherwise would not pay.” Id. at 112-13. Thus, while the nature and quality of relief may affect the amount of the fees awarded, an extremely small amount of relief is sufficient to confer pre-
In Fischer, 214 F.3d at 1115, we applied Farrar to hold not only that the amount of relief obtained may be much smaller than the amount sought, but also that it need not be identical in form. The plaintiff in Fischer had sought injunctive relief under the Americans with Disabilities Act against an inn that had refused to allow him to enter with his service dog. Id. at 1117. The parties entered into a settlement under which the inn agreed to print a four-paragraph statement explaining its policy of nondiscrimination against people with disabilities.
The district court denied a grant of attorney‘s fees, but we reversed, holding that “[b]ecause Fischer has an enforceable settlement that requires the Inn to do something it otherwise would not be required to do, Fischer is a ‘prevailing party.‘” Id. at 1118. We stated, “According to Fischer‘s complaint, the goal of his ADA claim was to obtain an injunction that would force the Inn to change its alleged policy and practice of denying access to people who use service dogs. In the end that is exactly what he achieved.” Id. at 1120.
In this case, Dill sought to require GCMAD to cease discharging pesticides into the waters of the United States unless it could obtain a NPDES permit. Specifically, the complaint asked the district court, inter alia, to “grant the following relief:” “Enjoin Defendants from applying pollutants in the Payette River, its tributaries, and all other surface waters in such a manner as will result in further violations of the Act. In particular, Plaintiffs seek an order enjoining Defendants from discharging pollutants without a NPDES permit.”
The EPA refused to issue a permit to GCMAD on the ground that under its interim interpretive guidance no permit was necessary for GCMAD to engage in discharge of pesticides for purposes of mosquito control. This guidance was incorporated into a formal regulation providing that mosquito abatement programs that comply with the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA“) do not result in the discharge of pollutants under the CWA and therefore do not require a NPDES permit.
Dill did not succeed in obtaining the precise legal ruling and relief that he sought in his complaint. Perhaps if he had had enough money, he could have continued his suit and joined in the multidistrict litigation that culminated in the Sixth Circuit‘s decision in National Cotton Council. But he settled instead. In practical terms, the remedy Dill achieved in the Settlement Agreement was an important part of what he sought in his suit under the CWA. In his complaint, Dill asked for an injunction against unpermitted discharges of all pesticides (not limited to adulticides) into specified waters of the United States. In his judicially enforceable Agreement, Dill got the equivalent of an injunction against discharges of adulticides into those waters. That is, GCMAD entered into a judicially enforceable Agreement not to engage in any aerial spraying of adulticides except in a declared health emergency, and not to engage in any truck fogging within either 300 or 150 yards of specifically described waterways, including the Payette River.
Based on the EPA‘s construction of the CWA in its then-interim guidance under which GCMAD was not required to obtain a NPDES permit, the district court concluded that Dill‘s relief did not promote the goals of the CWA. However, the interim guidance (later, the formal regulation) on which EPA relied has now been held invalid in National Cotton Council as inconsistent with the CWA, in a decision rendered after the district court ruled on Dill‘s application for attorney‘s fees. The Sixth Circuit‘s decision in that case vindicates Dill‘s litigation position that GCMAD‘s actions violated the CWA, and shows that the terms of the Agreement reducing discharges of pesticides into the waters of the United States serve the goal of the CWA.
We therefore hold that the Agreement meets the three conditions necessary to make Dill a prevailing party.
B. “Appropriate”
Section 1365(d) provides that the district court may award attorney‘s fees to a prevailing party “whenever the court determines such award is appropriate.”
Our sister circuits have not agreed on a uniform standard for determining appropriateness for a prevailing plaintiff under
For the reasons that follow, we do not adopt any of these standards, and instead hold that the “special circumstances” standard first elaborated in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S. Ct. 964, 19 L. Ed. 2d 1263 (1968), is the proper standard for determining whether an award of attorney‘s fees to a prevailing plaintiff is “appropriate” under
In Piggie Park, the Supreme Court considered a request for attorney‘s fees under Title II of the Civil Rights Act of 1964. It held that “one who succeeds in obtaining an injunction under [Title II] should ordinarily recover an attorney‘s fee unless special circumstances would render such an award unjust.” Id. at 402 (emphasis added). The Court reasoned:
When a plaintiff brings an action under that Title, he cannot recover damages. If he obtains an injunction, he does so not for himself alone but also as a “private attorney general,” vindicating a policy that Congress considered of the highest priority. If successful plaintiffs were routinely forced to bear their own attorneys’ fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts. Congress therefore enacted the provision for counsel fees—not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II.
Id. at 402. We have interpreted the “special circumstances” standard of Piggie Park quite strictly, such that fee awards “should be the rule rather than the exception.” Ackerley Commc‘ns, Inc. v. City of Salem, 752 F.2d 1394, 1396 (9th Cir. 1985) (internal quotation marks omitted).
We have applied the Piggie Park “special circumstances” standard in a variety of statutes. We have necessarily applied it to all successful civil rights plaintiffs under
In Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air (“Delaware Valley“), 478 U.S. 546, 106 S. Ct. 3088, 92 L. Ed. 2d 439 (1986), the Supreme Court interpreted § 304(d) of the Clean Air Act (“CAA“), which authorizes an award of attorney‘s fees to a successful party. The Court interpreted § 304(d) in the same manner as § 1988, writing, “Given the common purpose of both § 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.” Id. at 560. The language of § 304(d) of the CAA is
In Marbled Murrelet v. Babbitt, 182 F.3d 1091 (9th Cir. 1999), we applied Delaware Valley to the attorney‘s fees provision of the Endangered Species Act (“ESA“). Citing Delaware Valley, we wrote that “attorney‘s fees provisions in environmental statutes with similar language and purpose as the attorney‘s fees provision in the Civil Rights Acts should be interpreted in the same way.” Id. at 1095; see also Ruckelshaus, 463 U.S. at 691 (“[S]imilar attorney‘s fee provisions should be interpreted pari passu.“). We concluded, “Given the similarity in language and purpose between the attorney‘s fees provisions of the Civil Rights Act and the ESA, Delaware Valley mandates that we apply to the ESA the civil rights standard for awarding fees to prevailing[parties].” Marbled Murrelet, 182 F.3d at 1095. Like § 304(d) of the CAA, the attorney‘s fees provision of the ESA is essentially the same as
The CAA (at issue in Delaware Valley), the ESA (at issue in Marbled Murrelet), and the CWA (at issue in this case) are all broad public interest statutes that authorize citizen suits to enforce their substantive provisions. Moreover, the language in the attorney‘s fees provisions in each of the three statutes is in all relevant ways identical. We interpret
We hold that the district court may deny attorney‘s fees to a prevailing plaintiff under
The district court has not had the opportunity to apply this standard to this litigation. We therefore remand to that court for a determination, under this standard, whether an award of attorney‘s fees is “appropriate” within the meaning of
IV. D.C. District Court Suit
Because the district court did not award attorney‘s fees to Dill, it did not decide whether attorney‘s fees should have been awarded not only for the work done in connection with the suit in the Idaho district court, but also for the work done in connection with the suit in the D.C. district court. Therefore, we remand to the district court to allow it to address that question in the first instance.
Conclusion
We hold that Dill is a prevailing party under
REVERSED and REMANDED. Costs on appeal to Dill.
TALLMAN, Circuit Judge, Concurring:
I write separately for two reasons. First, we do not today determine whether the facts of this case constitute the requisite “special circumstances.” This question remains in the discretion of the district judge on remand. As we have explained, we employ “a two-pronged test to determine whether special circumstances exist to justify denying attorney‘s fees.” Am. Broad. Co. v. Miller, 550 F.3d 786, 788 (9th Cir. 2008) (per curiam). This test requires a showing whether (1) “awarding the attorney‘s fees would further the purposes” of the statute, and (2) “the balance of equities favors or disfavors the denial of fees.” Id. (citing Mendez v. County of San Bernardino, 540 F.3d 1109, 1126 (9th Cir. 2008); Bauer v. Sampson, 261 F.3d 775, 785-86 (9th Cir. 2001); Gilbrook, 177 F.3d at 878). It is important that the district judge make findings of fact and conclusions of law showing what special circumstances exist in the case, and I emphasize that the standard of review for an award under this doctrine remains the traditional abuse of discretion standard. See id.; Jankey v. Poop Deck, 537 F.3d 1122, 1129 (9th Cir. 2008).
Second, the policy implications of today‘s holding concern me. Courts should not be interpreting attorney‘s fee requirements in such a way as to discourage settlement. If today‘s holding is read too literally, I believe there is a disincentive for parties in environmental litigation to negotiate a settlement.
Gem County was following the EPA‘s policy that no NPDES permit was re-
If our opinion leads ineluctably to the conclusion that no special circumstances can be established under this set of facts, I am not sure why a defendant would not “roll the dice” before a potentially sympathetic jury. This unfortunate result would deter otherwise desirable settlements to avoid costly and uncertain trials. Only time will tell whether the guidance we articulate in this opinion will truly further the congressional aims behind the Clean Water Act‘s citizen attorney general provision. Congress is, of course, always free to clarify when attorney‘s fees may appropriately be assessed in these types of cases.