The Wilderness Society v. Rogers C. B. Morton, Secretary of the Interior

pursu- proceedings the Board before the record set as to our remand ant opinion of November forth in our Importers Ass’n v. C. A. American

B., F.2d 168. Importers the American

Counsel for

Association, petitioner, response parties request to the memo-

to our Opinion and Order

randa directed January 28, 1974, to, referred above light the court has advised developed present on the re- as situation objection further it has no mand agreement, time as conditioned

free subject Board,1 petition of its review, Board, and the in its re- sup-

sponse, forth reasons has set its

port of affirmance.

Upon foregoing consideration of the approving

the order of the Board

agreement, Board, conditioned

Affirmed. al., et WILDERNESS SOCIETY Appellants,

Rogers MORTON, Secretary of the C. B. Interior, et al.

Nos. 72-1796 to 72-1798. Appeals,

United States Court District of Columbia Circuit.

Argued July 11, 1973. April 4,

Decided 1974.

As Amended June 1974. may require memorandum, attention further states states in its Association “ problems potentialities petitioner of these Board. The . . . wishes to record problems beginning and do not decision irrelevant to this existence several now finality. way retain affect future seri to arise and which jurisdiction. continuing injure trade,” ously import

Washington, C.,D. were on the memo- opposition randum to the bills of costs. Hogan, Rockville, Md., F.

Thomas support on the memorandum in appellant The bill of costs for Cordova District Union. Fisheries BAZELON, Judge, Before Chief and WRIGHT, ROBINSON, LEVENTHAL, MacKINNON, WILKEY, and ROBB Judges, sitting en banc. Circuit Judge: WRIGHT, J. SKELLY Circuit Appellants Society, Wilderness Fund, Inc. Environmental Defense request Friends of the Earth an award expenses attorneys’ fees related successfully prose to, cuted trans- bar construction of the pipeline. Society See Wilderness Morton, U.S.App.D.C. 121, v. F. 156 479 842, 917, denied, 2d cert. 411 93 U.S. S. 1550, (1973). Ct. 36 L.Ed.2d 309 A bill of costs has also been filed The Cor Union, appellant dova District Fisheries primary in No. 72-1798. While is proprie sue now before us concerns assessing against ty attorneys’ fees Alyeska appellee Pipeline Com Service pany, Alyeska objections has also raised expenses in certain the bill of costs. Flannery, Washington, M. D. Dennis agree Government, how argued C., support in the bill costs ever, expenses requested that all Wil Society et The Wilderness proper, 28 derness et al. see C., Washington, Dienelt, F. D. al. John (1970); parte Ex Peter U.S.C. 1920 support was also on memorandum in 543, son, 40 64 253 U.S. S.Ct. of the bill of costs. (Brandéis, (1920) J.), L.Ed. Pittle, Dept, Justice, Atty., Herbert among Alyes equally should be divided ka, argued opposition in costs bills Alaska, the State of United Clark, appellees. Edmund B. for federal prevailing party As it was not a States. Dept, Justice, on mem- Atty., was separate suit, Cor issue its opposition to the bills of orandum dova is not entitled to costs. See 28 U. appellees. for federal costs Rule 54(d), S.C. § Cf. III, Washington, Jordan, D. E. Robert respect to the main Fed.R.Civ.P. With argued opposition C., the bills of posed, hold that an award issue Pipeline appellee Alyeska Serv- costs appropriate and re fees is Washington, Mickey, D. ice Paul F. Co. mand the case the District Court op- C., also on the memorandum determine the fees. position bills of costs. Garrett, Washington, D. Theodore L. I argued opposition C., to the bills always equi existed Wil- There have appellee State Alaska. costs Copaken, Amer- exceptions the traditional D. table Allen and Richard liam H. “ rigid barring recovery Rather, eases. ican rule sets of ‘is litigant. original authority a successful eases in chancel faith, party equity particular lor to which a has acted bad as- do situa ” tion,’ properly Cole, supra, pun- v. sessment serves Hall at of fees U.S. 1746, quoting party’s Sprague Ti ish that obdurate behavior. 93 S.Ct. at Cole, 1, 5, supra, Bank, Hall v. 412 U.S. 93 S.Ct. conic National U.S. excep- Another and should be used 36 L.Ed.2d 702 S.Ct. “ ‘overriding plain- tion whenever includes cases in which the considerations ” recovery.’ the need tiff’s suit confers a indicate for such a benefit mem- Id., quoting bers of an class Mills v. Electric Auto-Lite ascertainable and in Co., supra, which an award of 396 U.S. at 90 S.Ct. fees will serve to spread litigation among the costs of See Mills Electric beneficiaries. equitable Recognizing their broad Co., Auto-Lite U.S. S.Ct. power, courts have concluded that some 616, (1970). 24 L.Ed.2d 593 justice require fee shift interests excep where the Neither of these historic a third class of cases “ ‘private applicable Appellees’ plaintiff attorney tions is here. acted meaning position vindicating general,’ policy of Miner that Con as to highest Leasing gress priority.” al Act and relevant administra considered ultimately regulations, though Piggie Enterprises, re

tive Newman Park v. court, manifestly jected Inc., 400, 402, 966, rea 964, 88 390 U.S. S.Ct. good faith, par See, g., (1968). e. sonable and assumed 19 1263 Bran L.Ed.2d long ticularly denburger Thompson, Cir., administra view 494 F.2d v. 9 practice supporting 25, 1974); 885, it. See Wilder tive Nat March decided Morton, supra, 156 EPA, v. U.S. ness v. ural Defense Council Resources App.D.C. F.2d at 864- Cir., (1973); Cooper 479 v. 1 484 F.2d 1331 although (1972); the “common bene Allen, Cir., 870. And 467 F.2d Don 5 836 given expanded Staunton, exception Cir., fit” has been 7 471 F.2d 475 ahue v. compare cases, scope denied, 955, Hall v. (1972), recent 93 S. cert. 410 U.S. Cole, supra, Sprague (1973); Ticonic Na 1419, v. v. L.Ed.2d Cole Ct. 35 687 777, 161, (1972), 59 Bank, Hall, Cir., S.Ct. af tional 307 U.S. 777 462 F.2d 2 rationale, (1939), 412 U.S. 83 L.Ed. 1184 we would alternate firmed on (1973); totally 1943, 1, stretch it outside its basic ration 36 L.Ed.2d 702 93 S.Ct. Cir., apply Knight Auciello, ale to it here. 453 F.2d 852 As is 1 discussed v. litigation fully below, may more Home Sites Lee v. Southern (1972); (1971); provided Cir., 143 Corp., well have 444 F.2d substantial benefits 5 particular and, indeed, America v. But individuals to United Steelworkers Cir., every Manufacturing proper Co., F.2d 439 citizen’s interest 8 ler govern functioning Lynn, system Club v. 1110, (1971); Sierra 1113 attorneys’ 834, imposing 5 F.Supp. E.R.C. ment. But fees on' W.D.Tex., 364 spread Daily Zurcher, Alyeska operate (1973); v. will Stanford 1745 among (1973); proportionately F.Supp. 18, N.D.Cal., costs of 23-24 366 beneficiaries, City requirement key Mayor Council Harper these v. theory. 1187, F.Supp. D.Md., Baltimore, benefit” See “common 359 Bangor Corp. R. (1973); & Co. v. Brhd of v. Volks Aroostook Calnetics 1218 Enginemen, C.D.Cal., America, Inc., 143 wagen Loc. Firemen & U.S. 353 812, 101, App.D.C. 90, F.2d 823 Unida v. F.Supp. (1973); 442 Raza La 1219 (1972); N.D.Cal., 94 F.R.D. Volpe, 57 M.D.Ala., F. Wyatt Stickney, 344 v. recently Supreme indi- Court has Allen, (1972); M. Supp. v. NAACP 387 power cated, equitable however, that the F.Supp. (1972); v. D.Ala., Sims 703 340 to award of federal courts F.Supp. 691 Amos, M.D.Ala., 340 justice so re- the interests fees when City Bradley Board of (1972); v. School power quire is not a narrow confined 1030 brought, E.D.Va., or continued in the face 28 Richmond, 53 F.R.D. small, 318, opposition, there Cir., will be will be (1971) reversed, , wrongdo- 937, upon deliberate granted, little brake ing. (1972), 412 U.S. cert. public policy In such instances 2773, L.Ed.2d 396 S.Ct. may suggest Awarding Attorney Ex an award costs Note,

also pert from the Lit will remove the burden Environmental Fees in Witness seeking plaintiff 1222, shoulders of the igation, 1237-1246 58 Corn.L.Rev. ” * * * right. (1973) vindicate . Knight supra, pre Auciello, 453 F.2d at has not court While litigation, directly 853. In much or not viously whether to focus occasion had general” formally designated action, attorney rule as a class “private party sues not to vindicate own attorneys’ fees, salient his it stressed interests, Ryan, minor, which often are but to Freeman v. consideration enjoin injuries inju U.S.App.D.C. 1, a broad F.2d class— quite accompanied when (1968), an award ries which extensive when collectively. See, g., viewed the comment: e. Sierra fees with Morton, Club 736-738 & 405 U.S. proceed objective in ac- “Our 739 n. 31 L.Ed.2d 636 S.Ct. principles equitable so cordance with (1972); United v. Students Chal States attorneys whose as to reward lenging Regulatory Agency Procedures, stopping unauthorized an service 412 U.S. 37 L.Ed.2d S.Ct. payment of benefit has been cases, (1973). In such suc “[i]f involved, private persons of class routinely cessful forced by public interest observance fees, to bear their few own executive officials administrative aggrieved parties position would be statutory their au- limitations of thority.” public by to advance the interest invok injunctive powers of federal equity paramount principle of It is a Piggie courts.” Newman v. Park Enter go both much farther that the court will prises, Inc., supra, 402, 390 U.S. at grant in fur- relief and to withhold S.Ct. at con 966. When violation than interest therance of the gressional enactment caused little only private are involved. interests when great injury individual, one System Virginian Railway v. Co. See important public harm interests when 552, 40, No. U.S. Federation perspective of viewed from the (1937), where L.Ed. 789 S.Ct. protected broad class intended to be legislature’s that the Court added statute, that not fees to award counsel policy public interest and declaration seriously purposes of can frustrate the give inducing “persuasive courts is Congress. Cole, supra, v. See Hall relief.” U.S. 93 S.Ct. 1943. Where argu persuasive the find private relies on to effectuate law suits courts these congressional ments advanced adopting policy in of broad favor attorney general ex private public interests, attorneys’ fees are of rule. ception American to the traditional necessary private ten that liti ensure gants Lee such suits. See will initiate important pub- of an “The violation supra, Corp., v. Southern Home by way Sites may policy little involve lic single 444 F.2d at 145. benefits Substantial in- damages, far as actual so general depend should concerned, in com- little or is dividual upon the individ the financial status parison vindication the cost * * jf volunteering plaintiff or ual serve as may feel a defendant upon charity public-minded law litigation, partic- and, that the ularly, cost yers. supra, Staunton, Donahue v. circum- financial may party 483; injured mean 471 F.2d at Raza Unida stances of an La. being suit Volpe, chances supra, n. 57 F.R.D. at 101 & 10. recog justified growing Despite be reference trend very policies. considerations, one nize these least same reluctant attor court has been award gen II neys’ private attorney fees under a theory, reflecting eral concern that the Ameri- chief rationale behind general exception up the would swallow might parties can rule is notion that awarding fees to suc rule and result instituting discouraged unjustly from statutory parties in cessful all causes defending to vindicate actions Bradley Board action. See School losing rights penalty if the in court City Richmond, Cir., opponent’s included the fees of their (1972), granted, 412 329-331 cert. U.S. Distilling counsel.1 See Fleischmann 2773, 37 L.Ed.2d 396 93 S.Ct. Brewing Corp. Co., 386 v. Maier U.S. (1973). Note, The Allocation of At Cf. 714, 718, 18 L.Ed.2d 475 87 S.Ct. torney’s After Mills v. Electric Fees McCormick, (1967); Fees and Counsel Co., Auto-Lite 38 U.Chi.L.Rev. Litigation Expenses Ele- Other as an 328-336 fears are Such Damages, ment of 15 Minn.L.Rev. lightly disregarded, for the Ameri to be possibility un- 639-642 barring attorneys’ can rule fees to suc just of- deterrence of is most extraordinary litigants except cessful plaintiff’s point ten from the stated pol important circumstances is based on relatively An view. individual with a icies of own. But if the matter damage claim, example, small could closely, examined becomes evident easily discouraged pressing general private attorney exception, court, claim in how merito- matter applied at least as to the factual circum good be, he in rious faith .believed present case, stances of the not incon losing paying the if the lawsuit meant policies sistent the tra with the behind might attorney’s defendant’s fees which To ditional American rule. the con approach or of his even exceed the value trary, present claim. Farmer v. American an award Arabian Cf. pressed years ago might the American rule as what Another rationale for over 100 time, expense, pass and difficulties of if fees were awardable. that “the proof come to question quite litigating in themselves able to inherent Courts shown attorney’s develop reasonable fees and workable standards what constitutes reasonable pose judicial pp. setting substantial burdens for fees. See text at Distilling Litigation administration.” Fleischmann over the amount 1036-1037 infra. 714, Corp. Brewing Co., hardly Maier to be burdensome. v. 386 U.S. fees can be said of Indeed, o agree parties 18 L.Ed.2d 475 able on a 87 S.Ct. are often Amos, (1967). Spain, See, g., also Oelrichs v. U.S. e. v. 82 reasonable fee. M.D.Ala., Sims (15 (1972). Wall.) 211, (1872) F.Supp. 691, 693 n. 3 21 L.Ed. 43 : 340 “ ** * proved particularly standard There is no fixed delicate Nor has the honorarium can be measured. fee re courts to scale down unreasonable quests. See, N.D.Tex., Hinds, g., than counsel demand much more Some e. v. Bates willing pay F.Supp. 528, (1971). apparent others. clients are Some 334 533 than counsel more others. More with which the courts have handled ease necessary. employed than are When both in have been numerous cases granted, which fees expressly client and counsel the fees au know either under statutes party paid thorizing recovery there is VII to be danger the other fees such as Title Rights abuse. A reference to a mas- 42 Act of U.S.C. Civil might ter, jury, 2000e-5(k) eq (1970), or an issue be neces- under traditional sary proper amount, predic exceptions, to ascertain the dire uitable undercuts the might grafted litigation possibly appropriate this fees tions that determination of protracted unduly See, g. more animated and than that e. will burden the courts. original Corp., Cir., an cause. It would be office v. 4 444 F.2d Robinson Lorillard delicacy (1971) Culpepper Reynolds ; of some of the court 791 Co., Metals charges, might Cir., (1971) ; to scale down the some- 5 Lea v. 1078 necessary.” Cir., (1971) ; Corp., times be Mills 4 F.2d Cone 438 86 think, however, experience Telephone Co., actual Bell Parham v. Southwestern trustworthy guide Cir., (1970). is a than ex- more fears 8 433 F.2d 421 1032 227, 235, Co., Lie?, Oil U.S. 85 Ultimate Burden S.Ct. 20 Vand.L.Rev. ; (1964) (1967). id. 13 L.Ed.2d 248 at 1222-1223 & 1230 Goldberg, (Mr. Justice S.Ct. Looking at from this case concurring). Ehrenzweig, But see view, point unavailability of at- and the Reimbursement of Counsel Fees torneys’ might significantly fees deter Society, Calif .L.Rev. 792 Great having brought them from this merito- argument course, has Of litigation. prosecuting rious this point equal from the defendant’s merit case, appellants litigation undertook faced with view. A defendant a rela proportions. According monumental might tively induced small claim well be appealed their costs, bill the matters plaintiff’s capitulate demands, 4,500 lawyers’ consumed over hours of though legitimately even he felt he had time, inall addition to the efforts before losing good defense, if the District Court when this ac- plaintiff’s paying court would mean preliminary tion was commenced and in- attorney’s McCormick, supra, fees. See junctive relief obtained. See Wilderness Simply stated, at 641. Minn.L.Rev. Hickel, D.D.C., F.Supp. then, imposition of fees on This burden was assumed losing thought party to raise hope obtaining monetary not in the litigation thereby stakes to dis award, protect pecu- nor to an interest courage submitting individuals members, liar to and their rights judicial their determination. important statutory rather to vindicate rights of all citizens whose interests argument force Whatever might be affected construction of the great concededly run of civil has pipeline. litigation, inapposite plainly we think it Whether we consider the Mineral present case. the circumstances Leasing regula- Act and administrative Alyeska brought so often to our

As upon tion issues which the court rested attention, of its the value investment opinion declaring pipeline unlaw- stake in this was over a billion ful, or the National Environmental Poli- delay in dollars. Each week’s construct cy (NEPA) Act issues which the court pipeline imposed additional an undecided, appellants left succeeded in Any million in costs. award $3.5 private attorneys general role as conceivably large case, though protecting statutory vital interests. sense, paltry compari absolute will be Alyeska argued son in de interest had It is the width limitation fending appeal. the interest Leasing Where Section 28 Mineral Act many greater than the congres- stake is times of 1920 does not amount to a expected opponent’s policy cost of one’s attor preeminent importance. sional of ney’s fees, any possibility dispute of deterrence But the in this was more t.2 surely is if not nonexisten interpretation remote than a debate over of that Cf. Note, Attorney’s Appellees’ primary argument Fees: Where the Shall Act. was parties appellees prevailing 2. Labor-Management Had been the Reporting 102 of the & sought attorneys’ appellants, and fees from Disclosure Act of 1959 was awarded fees possibility signifi- the ground of deterrence would be from the defendant union on the the cant and the rationale of the American rule suit benefitted all union members and reim- recovery would therefore bar of In fees. bursement of un- fees out of the treasury this sense there is an admitted lack reci- litiga- ion would shift the costs of procity granting a 7-8, fees under tion to these beneficiaries. U.S. at private attorney general theory. The same 93 S.Ct. 1943. Had the union defendant reciprocity, however, appears prevailed lack merits, to be however, present theory in so-called “common benefit” cases. doubtful the same would have Cole, required awarding Hall v. 412 U.S. 93 S.Ct. fees to defendant because (1973), example, deterring L.Ed.2d 702 the suc- risk from plaintiff brought bringing cessful in a suit § under suit. 93-153, that, pipeline. whatever the width restrictions Alaska Public Law 93rd (November originally meant, Cong., 1973). settled ad- 1st Sess. Act important practice imposes The those re- statute several ministrative evade designed protect requirements precedence. took In the new strictions final duty analysis, than contin- involved the interest. Rather this case prior practice permitting the re- ue the free Executive Branch to observe land, imposed by Legislative, use strictions of Government the new statute U.S.App.D.C. requires issuing agency Ryan, see to receive Freeman v. right-of- 1, 3, (1968), and the “fair market value” of 408 F.2d Congress way empowers agency responsibility primary and to assess of the against right-of-way recipient regulate all under Constitution to proc- use reasonable administrative costs lands. Wilderness essing Morton, application monitoring U.S.App.D.C. supra, at an right way. 93-153, Pub.L. § at 891-893. (amending Leasing Act of Mineral functioning system proper The 28(i))- special statute The contains § government is, under the Constitution provisions making operator of the course, important American, every pipeline damages strictly liable for re- appellants’ and in this sense great suit had sulting right-of-way, id., of the use therapeutic value. Mills v. Cf. 204. section of the same new § Co., supra, Electric Auto-Lite 396 U.S. requires operator to statute main- requiring S.Ct. 616. But $100,000,000liability tain fund to sat- Congress Leasing to revise the Mineral isfy id., 204(c)(5). claims, Forc- permitting Act rather than continued ing Alyeska go Congress amend clear, though evasion of anachronis- certainly the 1920 Act not a was sterile- tic, more restrictions has had other con- exercise technicalities devoid equally important crete and benefits. public significance. suit, As a result has awarding equities Leasing in favor of amended the Mineral Act re- efforts on NEPA issues move the restrictions of the 1920 statute just compelling.3 spe- permit Elaborate construction of the trans- seismically pipeline litiga- most one of the 3. across The environmental from this benefit generously recognized by areas the world are and remote tion active the Honora- sig- very Train, real. These and other likewise ble Russell E. then chairman of the simply problems ade- not nificant President’s Council on Environmental Quali- proposal ty quately initial faced and now Administrator of the Environ- Department Agency, presented of the In- mental Protection before Joint Eighth Judicial terior Conference of Tenth pipeline us- had been constructed “If the Circuits June 1973: design specifications, original Pipeline may “The Alaska been very likely example judicial tidy process, have resulted would very of the but damage example environmental been serious it has an excellent where Indeed, operational problems. also serious NEPA the courts have forced rec- integrity pipeline physical itself of the onciliation of environmental concerns with major very engineering practices at stake. sound much pipeline “Thus, project. energy the case The President has now aesthetics, simply pipeline not been one of called for construction possible date, wilderness wildlife and concern over the earliest and the of disturbance, Admin- pollu- legislation water worries over has istration introduced important present tion, It right-of-way these are. as all of would remove the re- example clearly urging envi- sound where and an strictions swift action on the was analysis sound was essential bill. ronmental siting. delay completion engineering and “To some process honesty, pipeline reality, has been one “In all is unreasonable. govern- industry learning though, delay and both for much of the has been bene- seriously industry problems constructing I that The ment. believe ficial. a hot ' pipeline permafrost very difficul- real technical oil are underestimated across appreciate problems constructing failed to the task and ties of real. 1034 See, Co., g., procedures provided e. under the Mills v. Electric Auto-Lite cific supra. protection of serves Where as a cat- amendments ensure 1973 alyst change thereby Id., 101 effect and

environmental interests. § Leasing 1920, service, (amending Act achieves a an Mineral valuable 28(h)(1) (2)). appropriate award of need not have & One even § history though hindsight proceeds to know that the suit never suc- pro- improving cessful on commitment and conclusion merits. See tecting Telephone is one Parham v. our natural environment Southwestern Bell Co., pol- Cir., (1970). national 8 the most vital of current 433 F.2d 421 Cf. only Corp., of a vast Gilson v. 2 NEPA is one Chock Full O’Nuts icies. banc). legislative end, Cir., (1964) (en effort that but it 331 F.2d toward 107 among important the most because appeal Here lawsuit and generally scope. its Scien- broad catalyst served as a to ensure that Information v. Institute for Public tists’ Department of the Interior an drafted 395, 402-405, AEC, U.S.App.D.C. 156 impact statement and that the statement 1079, And F.2d 1086-1089 481 thorough complete. was It must be congressional policy pursuit of effective recalled that when commenced legislation NEPA, much under as with Depart this suit 1970 Interior area, depends on in the environmental though ment, ready to issue the neces diligence attorneys gener- private sary rights-of-way, yet had not drafted bring willingness al and their suit impact an environmental for statement further broad interests.4 pipeline. comply failure to ground NEPA was an alternative controlling do it of Nor we think preliminary injunc District Court’s importance did not ac this court Hickel, tion. See Wilderness v. tually decide issues supra. the NEPA McEnteggart Cataldo, v. 1 Cf. subsequently decided Cir., (1971), denied, 451 F.2d 1109 cert. legislation impact pipeline 2878, 408 U.S. 92 33 S.Ct. L.Ed.2d prepared by Department statement (1972). Requiring Department 767 Interior deemed suffi shall be impact to draft an statement as mandat cient under NEPA. See Pub.L. pub ed law not benefitted the 203(d). supra, The advancement of statutory right lic’s to have information legislative important policy justifying consequences about the environmental an award of fees can be ac pipeline. It led to also the refine complished plaintiff even where the does environmentally protective stip ment of sought by not obtain ultimate relief placed ulations as conditions filing prosecution rights-of-way.5 of his suit. fully- particularly AEC, U.S.App.D.C. the outset —the new v. 156 — decision-making (NEPA) (1973) ; in matters conditions 1079 Natural Resources substantially Council, Morton, affect environment. Defense Inc. v. 148 U.S. government ill-equipped part, App.D.C. 5, (1972) (NEPA) ; was On 458 F.2d 827 institutionally informationally Coordinating both dealing Calvert Cliffs’ v. Committee complex problems AEC, U.S.App.D.C. 33, with the US 1109 F.2d (1971) pipeline. (NEPA) ; New would contend that now Environmental Defense Department’s response Ruckelshaus, U.S.App.D.C. Interior first Fund v. right-of-way appli- pipeline (1971) (Federal Insecticide, NEPA 439 F.2d 584 really adequate.” Fungicide, Act) ; cation & Rodenticide Sierra Club Lynn, F.Supp. W.D.Tex., 5 E.R. See, g., e. 4. Preserve Citizens Overton (1973) (NEPA). C. 1745 Volpe, Park U.S. S.Ct. (1971) (Department Department 28 L.Ed.2d See United States of the Inte- Transportation Highway rior, Impact Federal-Aid Act and Final Environmental Statement: ct) ; Proposed Pipeline, I, Natural Resources Defense Trans-Alaska Vol. A Council, Cir., EPA, App. Inc. v. 484 F.2d 1331 Under the 1973 amendments (Clean (1973) 1970) ; Leasing Air Amendments to the Mineral Act of the right-of-way pipeline Institute Public Scientists’ for Information for the trans-Alaska

1035 given impact pass Congress the in order to Although the statement now on special pipeline the claim that the go-ahead Government’s on the basis only permit land prepared use involved a revoca- impact by the the statement permanent helped ble a Department, appeal license rather than at- focus right-of-way. Society major See Wilderness v. Congress the issue tention in on supra, U.S.App.D.C. Morton, 156 152- of a relative merits trans- raised —the addition, In 479 F.2d 873-875. versus a route.6 Canadian trans-Alaskan Cong.Rec. See, we note that after it became clear that g., e. S12795-S12803 119 Department persist the (daily 1973). Interior also Title ed., July 9, See issuing right-of-way despite supra. in the the 93-153, take III of Pub.L. the initial decision that Congress District Court’s approving im- action of right-of-way rejection the Mineral Leas- pact statement, violated total as a ing sought Act, appellants summary arguments appeal, made on but judgment Leasing Act recognition on Mineral is- appellants rather as a matter sue alone so could be question very had raised a substantial wading by the resolved courts without likely require courts were factually complex into more NEPA that, time considerable to resolve and Summary judgment opposed being providing issues. time in essence appellees, and were thus oil, delivery Slope for of North con- a argue an issue forced to brief gressional required.7 resolution was which, very on of their success because significant deem it We also issue, Leasing Act never be- Mineral Leasing ap- Act on which Mineral issues Compare adjudication. ripe came pellants clearly prevailed were somewhat Chicago Bros., Inc. Switzer Cardboard interrelated with the NEPA issues. It Co., Cir., 407 Tak- required precise analysis of the exact impact pipeline explicated factors, as these into account all subject expressly NEPA; made the terms and information under disclosed ess impact stipulations. provoke conditions of these See Pub.L. en- statements (Nov. Cong., decision-making. try 93d 1st Sess. into bureaucratic 1973), 203(c). interesting process provokes further It is also of remand The many Congress sup- encourages public involvement, note porting those perspective Congress employ immediate national construction pipeline en- is- trans-Alaska did so because “the concern with broad and thus itself ” * ** through long delays involved. sues vironmentalists — already Pipeline: Brody, have forced—achieved the inclusion Dominick & The safeguards plans strong for the Alas- v. Morton Wilderness and the Cong.Rec. ed., Pipeline (daily Act, kan July line.” S13574 Trans-Alaska Authorization (Senator Fannin). 16,1973) 352-353 Amer.U.L.Rev. Natural Resources note 61 the authors cite 6. Senator Peter Dominick of Colorado Morton, Council, U.S. Defense Inc. legislative assistant, Brody, his David former (1972), App.D.C. 5, 11, 458 F.2d original refer in this to our decision developed need for full im where we Congress consider, a “remand” to the pact informing purpose statement Leasing Mineral amendment of the merely legislature and the —not Act of environmental issue as higher-ups in the chain of executive com amending well. action of mand. resolving is- the Act and the environmental voluntary Gravel, sue resulted 7. dismissal Senator amend- author January provided already entire ment which that actions shortcomings having Department “Whatever taken of the Interior major compliance decide courts issues rather shall be deemed sufficient bases, disadvantages argued NEPA, such narrow are out- his that were amendment de- weighed by transferring languishing the result of feated “we would see ourselves * * controversy proper leg- year years forum —the court goal increasing public Cong.Rec. (daily ed., July 16, islature. participation S13571 1973). (Senator in environmental decision- also at S13574 id. making dispo- Fannin) (July 1973) ; is furthered the remand id. at S13684 Normally, (Senator Fannin). sition. this disclosure function accomplished proc- in the administrative 1036 awarding protect equities

think the favor fees its massive interests. Since Alyeska unquestionably major efforts on the is- NEPA awas though party no case, sues even the court rendered real interest in this ac- judgment tively participating litigation on these matters. along Government, the with it think sum, par equities the In of this fair should bear of the at- support attor ticular case an award of torneys’ fees.8 Romney, 1 Silva Cf. neys’ plaintiffs-ap the successful fees to Cir., recogni- F.2d In 473 287 pellants. Acting attorneys private tion role in the Government’s general, only they not have ensured case, hand, Alyeska on the other should proper functioning gov system only bear half of the total fees. ernment, but have advanced properly The other half is allocated to protected very in a concrete manner sub and, the Government because of the stat- public stantial An interests. award of utory bar, by appel- must be assumed unjustly fees would not have discour equitable lants. this manner the aged Alyeska appellee defending from principle appellees bear fair denying its case in court. And fees litigation’s share full cost and might well have deterred congressional policy United undertaking heavy burden States be taxable for be fees can ac- litigation. commodated. Ill fees, Because assessment of Even are to if fees be awarded under appeal, even services on involves fac attorney general private theory, questions, tual an amount of award Alyeska question posed as to whether general should as rule fixed be Technically, should them. it is bear by Court, first instance the District aft appli- Alyeska’s Department, Interior hearing necessary er evidence as to if cation, which violated the Mineral Leas- the extent and nature services ing granting rights-of-way Act ex- rendered. See Perkins v. Standard Oil restrictions, cess width Act’s California, ofCo. 399 U.S. 90 S.Ct. Department’s it is the comply Interior failure (1970); 26 L.Ed.2d 534 United chal- with NEPA which was Pacific Insurance Co. v. Idaho First Na lenged appeal. Under 28 U.S.C. § Bank, Cir., tional 9 F.2d 2412, however, can be fees procedure We observe that against imposed the United States. here, following limited argues Alyeska inappropriate that it is guidance as to ap the standard to taxing the statute circumvent plied by the District Court determin for a dereliction its own. represent fee. The fee should shifting pri the reasonable value of services ren Fee under the taking dered, general theory, however, attorney vate into account all the sur rounding punish violators, circumstances, not intended to law including, but to, have not limited rather those who the time and ensure labor re quired case, public protect acted to interest will benefit public, novelty not be cost the skill demanded forced to shoulder the entire litigation. supra complexity issues, Cole, Hall v. and the in Cf. generally Angoff centive factor. After U.S. S.Ct. 1943. successfully Cir., persuading Goldfine, Interior De 270 F.2d 188-189 partment grant rights-of-way, (1959); Pergament v. Kaiser-Frazer Alyeska Corp., Cir., (1955); in this intervened implications In the circumstances of this it would interest trans-Alaska inappropriate against appellee pipeline. Taxing against to tax fees voluntarily par- State of Alaska. State Alaska would our view undermine rather ticipated suit, present goal ensuring adequate effect than further spokesmen the court a different version interests. Co., obligation Chicago any appel R.

Harris v. Great Western on the (1952). pay Cir., 197 F.2d 832-833 to 7 lants fees. See Miller Confectionery Enterprises, Inc., Cir., Bakery Inter v. & Wkrs Amusement 5 Cf. Ratner, U.S.App. (1970); 426 Union v. 118 534 national F.2d Clark v. American 269, 273-275, supra , Corp., F.Supp. Marine D.C. 695-697 320 at 711. Miller, D.D.C., (1964); F. Kiser 364 go that It is our view the award must Supp. 1311 organiza- to counsel rather than to question Finally, is a raised pay tions their is salaries. This to should distributed as how fees be sound, organization a whether such is attorneys, among appellants, the and litigating party public or a law interest organizations for which some of procedure firm or defense This fund. attorneys employees. After are salaried problems or- avoids all whether determining a and divid reasonable fee ganization receiving might, by an award above, half, unauthorized, it in as indicated directly, be involved that District Court ensure should hand, practice the other law. On organizations appellant three are reim equitable foundation of award any payments they have al bursed for ready persists to fees after counsel award pur The first made counsel. require the to reimburse their counsel pose fees to make an award of is organizations respective the kinds of v. American client whole. Clark expenses they would nor- incurred which E.D.La., F.Supp. Corp., 709 Marine attorney’s mally in an fee— be included (1970) affirmed, Cir., , F.2d paid compensation at- for the services of (1971) ; Farm United States State adjunct g., torneys staffs, e. and their Co., Insurance D. Mutual Automobile supplies stenographers, for the and Or., F.Supp. by attorneys required and services might they their le- order that render lim need The fee award gal oper- procedure will services. This actually however, ited, the amount prevent equitably, to the ate loss both may by appellants. It well paid or owed organization double bene- avoid any organizations like counsel serve that in ex- fit counsel. But amount compensation that below belongs to of such reimbursement cess they market because obtainable may, in excess counsel themselves. That organizations pub further believe the part, or in be contributed whole Litigation this sort lic interest. organization involved, causes, like or to charity rely should not have to counsel, we revert to or retained rely any than should more counsel pre- possibility salary they that the volunteering to charity parties represented viously than received less general. attorneys private serve as they the market could have earned on attorneys on this case who worked their dedication the absence of val the reasonable reimbursed should be despite services, the absence interest.9 ue of their quotes omission, Judge Wilkey that commission or In dissent either his misrepresentation submit- affidavits affected the District several memorandum July 19, Judge’s the motion for venue denial of the District Court on ted to here) change. (appellants plaintiffs mis- and their On counts dissent both lawyers opposition Washington, D. taken. C. change misrepresentation. Secretary’s (1) no motion There defendant pay These documents con- Plaintiffs were not able to to Alaska. venue plaintiffs paying plaintiffs fees; representations could not were not that tain plaintiffs’ Washington lawyers pay attorneys’ fees, lawyers; these did their afford serving lawyers Washington without were sufficient funds of own complex lawyers carry fee, At Alaska. were unable on this and that these litiga- lawyers state, plaintiffs point did or their of extensive self-finance the conduct suggests they hint, imply abstain from would tion in Alaska. The dissent misrepresentation, seeking plaintiffs guilty an In fact award of fees. there litigation. Perhaps, mate outcome trying however, to make dissenters are believe that reason to and no no evidence today point, separate i. e. our decision 1971, given by July had, willingness skilled law- increase possibility thought fee of a whatever to throughout yers undertake nation to known not have could Plaintiffs award. behalf of unmon- interest case in such win their then that important just, lawful, and ied clients July justify way an award. yet as to proposition ac- we of course claims. This cept, an that such had ruled 1971 no circuit happy de- result of our it a and count “private proper at- on behalf was award torney general” cision. litigants in environmental Secretary’s position (b) on not the It was prosecuted successfully in the suits plain- change venue that motion for for the first so rules interest. Our circuit Alaska counsel tiffs should switch to opinion. today Does the a 4 to 3 time —in prosecution in state. The the suit that plaintiffs seriously suggest had that dissent change fully Secretary a conceded that victory, prophesy duty the nature their a to “undesirable,” given the counsel would be development victory, the future and of their plaintiffs’ preparation which months concerning awards so that fee of case law already Washington lawyers had committed represented to the District “been could have Response to Plaintiffs’ Memo- to case. plaintiffs’ seek and counsel would that Court Opposi- in randum of Points and Authorities * * * fee”? We must a be awarded point Change Ven- Defendant’s Motion tion to ue, July plaintiffs their neither nor out that 27, 1971, Rather, at 8-9. the Sec- soothsayers. are counsel retary argued re- that the case could be by July 1971, (2) Assuming arguendo that, Washington by plaintiffs solved lawyers and their thought requesting plaintiffs given a had trips “a few Alaska.” Id. with victory, a ultimate fee award in the event of representation com- This was a bizarre view of the suit’s not, would this effect plexity, hardly and it have been ren- would asserts, is- the venue dissent have cast plausible by representa- dered realistic or a light dramatically different be- sue into “a might ultimately plaintiffs a tion that seek Judge.” inten- Plaintiffs’ fore the District judicial award of fees. had bear- this score could have no tions on arguments (c) telling Plaintiffs’ most imagine, That, we on the venue issue. question the venue scarcity did not turn on Judge, including why party, District “free” in counsel Alaska. At plaintiffs’ slightest in interest showed the plaintiffs’ position showing crux of was a won- intentions. The dissent derfully ambiguous fashions two in that it was the District of Columbia that togeth- link sentences to plaintiffs’ organizations staffs er the fee and venue issues: award headquartered, pertinent all that Govern- argued that could not have Plaintiffs located, ment documents were that the most deprived counsel, either those would be important expert available, witnesses were change others, by already in chosen or litigated already and that the case had been place. The other venue to Alaska or months with no inconvenience to expectation lively fees as now of such addition, argued plaintiffs In Government. brought many law- would have be awarded extensively persuasively that yers plaintiffs’ side, either in Alaska or issues at stake were matters not of local but elsewhere. national, international, even concern. See dissenters: to remind the constrained generally Plaintiffs’ Memorandum of Points plaintiffs anyone (a) Opposition Neither nor else in and Authorities to Defendant’s July Venue, July Change 19, 1971, bar in could have notified the Alaska Motion to accompanying today. 1971 that we would hold as do affidavits. The District July Judge’s phrased ruling have in For announced in commensu- they might rately terms, an award of fees 1971 that seek broad with no mention victory availability in would not the event of ultimate of counsel. that He held expectation “lively such have created the defendant failed to show that anywhere else. Plaintiffs fees” in Alaska or requested transfer would serve the con- yet suit; con- had the case law to win parties venience of and witnesses and the yet cerning fee had to mature. awards justice. interest of hopes Plaintiffs’ and intentions —whatever Aug. judgment Order of In our they might July 1971—were have been seriously cannot be contended that legal tender, and would have added eminently sound determination could have capacity plaintiffs’ penny financial one prosecute possibility been affected —at The the suit here or Alaska. speculative quixotic— time so as to seem chronological forget nature of dissenters attorneys’ might ultimately legal system, whereby pretrial motions typically proceed ignorance the ulti- awarded in this case. finding awarding amounted to “a total enter statuto- lative An order will arguments rejection ap- ry made on costs, is remand- and the bill of costs setting peal,” Congress not de- for the because ed the District Court court) prive (this its basic a court fees. jurisdiction the court unless it felt ordered. So power past had misused its Alyeska, ity of the ment. judicial however, overridden Government, moting a mental ing: refusal er Government cannot be assessed supra, n.6. The referenced article initial same function. er forum to determine sively ment of the straining Op., MacKINNON, were of North take rejection that resolution was The appeal, time stantial half, such cases. against Alyeska swpra, gentlemanly manner, errors argue essence majority impact statement, opinion to Impact by to presumably majority failure likely resolve and perform continuance Environmental Certainly action of Dominick question Alaska by private party, pay one-half that actually that will not be Slope p. and which were Statement rather some to say Congress to required. were 1035. Circuit Congress providing had raised opinion Pipeline require act they— its arguments oil, awarding attorneys’ the Congress approving one a that, acceptance of contained as assigned judicial serious criticism obligation paid The a majority fees. Judge, cannot not as a total also of this in the enact- judicial Impact a was the time congressional Brody. Op., some bill. orders considerable majority because a recognition the courts statement, quotes very Environ- made on in effect for costs being delivery dissent- persua- court’s of the is State- valid- Congress prop- sub- pro- oth- its an tainly heard portant properly tion case, could case, considered the prived court should not District judicially tremendous tion claims court had refused to quired claim proved self-serving grounds forth, Federal declaring claims Indeed, should be constructed Line bill tal ment of the as described Environmental out perform statute. principal cannot be 203(d)] not, Impact further supra. of and almost the need for challenging . this court . Impact alleging ” officers Congress necessary speedy relied on in the by providing in effect Court alleging resolved rights under the Constitution. is a .the review Impact Statement, that its constitutional magnitude. Certainly Also, least with motive; Statement To action prior national scheme Interior Statement were plain explained away on such decision under could concerning the issuance . my of its normal decisions of went Policy Act the issues “the actions rights-of-way refusal of as [the . expedition even consider mind, invalidity under the National Final Environmen jurisdiction of indication a unprecedented such Alaska if simply further So project . of the respect . that were future. majority the action Congress denial and [even] drastic, un . duty as an where this dealt this court not to be that was not . Pipeline court right too Depart of this that [etc.] it, by with 1969. . . [sec Pipe Cer- U.S. sets this im- of] ap- ac re- de to my expected perfectly To view it could be obvious indication that Congress’ duty approving properly perform re action in with that legis- Impact rarely spect Statement used matter in the future. 203(d), 1. Act Nov. P.L. Id. (emphasis added). negation Then, injury, objective complete to add insult to the ma-

jority attempts attorneys Significant language my compensate dissent Act. issue, pointed for their work NEPA the which to some of the hazards thereby objective sought pro- subjecting main of which which the court was tect the American environment com- nation stated: pelling pipeline construction import quotas event that all through foreign Canada, country. produc- removed all oil majority of court did not consider tion of our Outer Continental Shelf issue; the NEPA instead it left it aas foreign replaced by oil, could it is be future, factor to be decided in the with knowledge common that such course delay necessarily attendant to such adopted because Congress, deferred consideration. how- wholly then be United States would ever, considered and found the NEPA dependent upon foreign oil. We Impact adequate. Statement So powerless would be nation re- attorneys efforts prices oil, sist that exorbitant respect complete to NEPA drew a blank. powerless our- would be to defend circumstances, Under it is such unrea- emergency. It is in a national selves by any compen- sonable fair standard to thus essential survival national phase sate them for the case. develop national that we our own production. plain me It seems majority assert the Mineral policy precisely this is Leasing Act issues “were in- somewhat August 7, declared on terrelated with the NEPA issues.” If passed authorizing when it the act so, this were all was the more incum- Secretary Interior, a matter upon bent this court to examine them policy, of national to lease the lands of and required render the by decision the Outer oil Continental Shelf for ex- presented. argument by This ploration. passing In ... majority is more in the of an im- nature Outer Continental Lands Act in Shelf proper post hoc rationalization. Congress recognized “urgent Moreover, appel- the main of effect developing need” for our offshore oil. NEPA lants’ claim would to have been Leasing outer Conti- Sec. of subject energy sup- a vital of our (a) nental to meet In order Shelf. — plies foreign gov- to the future veto of a urgent explora- need further ernment. This been a con- development tion and the oil and of gross tinuation error made gas deposits submerged lands decision of this court Natural Re- Shelf, the outer Continental Morton, sources Defense Council v. Secretary grant authorized to U.S.App.D.C. 5, (1972), 458 F.2d 827 submerged . leases on lands which forced this nation to consider the the outer Shelf Continental availability foreign alternative oil be- fore the Government could allow de- Outer Continental Lands Act of Shelf velopment of our own offshore oil re- ch. 67 Stat. § § (January sources. At time (1970) at 43 U.S.C. 1972), my objected codified vigorously dissent (emphasis added). ground foreign such decision oil could not be considered be a “real- national behind con- needs objective gressional istic alternative” because the policy declaration the Outer Continental Lands also referred to in the re- committee Shelf Act was to ports make this nation accompanied which the bill for self-suffi- compel cient in oil. To this nation to the Outer Continental Shelf Lands pre- foreign consider oil available as a develop- Act. These stated that petrole- developing condition to operation our own ment and such lands energy um and through resources thus a gas opera- leases and oil dependent upon econo- us further another for- vital to our national tions were eign nation, good neighbor, security: albeit our

my and Queen north, Snows Representatives Federal well-being resources vital as an our States, departments, independent nation. When we subsidize operators . were . . offshore bring against lawyers suits such opinion, unanimously promote national interests our own agrees, this committee which destruction. not do. That we should whereby Fed- no law now exists those lease can eral Government recovery addition on the basis submerged development lands, court, ap- an issue never decided operation vital which are victory pellants’ premised on the here is security. economy our national statutory interpretation issue on narrow they actually prevailed Cong., This is a reed on which merits. slender H.R.Rep.No.413, 1st Sess. 83d recovery, however, Cong. for the width 2-3, 153, Ad- rest & U.S.Code motivating added). surely limitation min.News, p. (emphasis was not force decision to behind insti- Congress officially com- has thus Nonetheless, tute action. the ma- government officials mitted our jority alacrity it with and raises seizes developing our policy to a statute proportions it to that the is- such cosmic oil resources. offshore proper sue becomes less than “[t]he U.S.App.D.C. at F.2d functioning govern- system of our added). (emphasis Neverthe- 841-842 Op. p. ment under the Constitution.” majority ignored less, in- clear approach is dem- 1033. This attenuated compelled the Gov- tent of onstrably applied to Al- flawed when ernment to consider the alternative yeska. compen- They foreign oil. seek now Assuming arguendo forcing the objective, group principal sate a whose Government channel its actions with- following approval of the this court’s for re- in the law could be a valid basis Morton, supra, principle in NRDC v. quiring to reim- the itself Government energy fur- to make our needs vital fees,3 appellants’ attorney ar- the burse foreign dependent upon ther another Alyeska.4 gument applied to fails country. By contrast, that I believe freely majority, discourses Congress Pipe Alaska action length great and at on how Act, in the Line and current events weal, appar- public have benefited East, effectively deci- reverses the Near ently to feels limit three constrained to that of this court extent sions argument makes sentences its that they reasonably require might be said gov- Alyeska, private party, liable for any foreign consideration of alternatives actions: ernmental prior commencing development energy own vital we resources. While private shifting at- under the Fee delay must suffer for the substantial however, torney general theory, is decisions, misguided I caused these violators, punish intended to law paying ef- refuse concur in for the those who to ensure that but rather sought ag- forts those who to further public protect inter- have acted gravate injury. to shoulder not be forced est will litigation. Hall For reason I cost of this would refuse to com- entire Cf. pensate appellants’ attorneys supra, Cole, S.Ct. 412 U.S. at successfully they persuading did on After work issue—the 1943. NEPA grant Department main thrust of made Interior which would have majority points applicable correctly equally is 3. out that 28 discussion 4. This issue, imposition U.S.C. bars the of attor- NEPA ney against the United States. Alyeska rights-of-way, respectfully intervened in It is diffi- dissent. litigation protect plaintiffs massive cult to see that either of these Alyeska unquestiona- ‘private general,’ attorney “acted as a interests. Since major vindicating bly party in- policy at real was a that con- case, actively participat- highest priority.” Judging terest in this sidered litigation along Congress’ action, from most recent these Government, plaintiffs frustrating poli- think it fair that we have been cy Congress highly should bear considers desirable fees. urgency. and of the utmost omitted). Op. (footnote p. Brevi- agree do we “this Nor ty especial- always to is not be desired — provided well have substantial bene- Alyes- ly pivotal issue of whether particular fits individuals.” Aside what ka should held answerable for lawyers involved, from the numerous we perceives majority apparently' to be “partic- are at a loss to know who those Perhaps the sins of the Government. enjoying ular individuals” “substantial brevity, con- admirable in other so might benefits” be. It hard to is visual- inability texts, is to an attributable average ize the American in this winter cogent arguments support marshal 1973-74, turning his down thermostat advanced; likely, proposition more eye and with a careful on his auto fuel brevity required to however, is such gauge, feeling glow grati- warm major premise of mask sub silentio the public-spirited plaintiffs tude to those opinion. is, companies That oil are Pipeline the Alaska case. prosperous, poor, and questions While one the sincere companies oil finance therefore should “public plain- motives these interest” litigation. Thus the both sides of this tiffs, enough plaintiff it is not argument majority’s essence of the feeling self-righteous have a sincere phrase contained in the “we think litigation. bringing correctness fair”; Alaska, fact the State good judgment There is matter of party in- also a defendant otherwise assaying just where the interest distinguishable Alyeska, escapes good lies. Did the exercise anomaly supports liability that also is an judgment bringing here in suit to block opinion. reading majority Pipeline? retrospect, Op. p. 1036 n. submit did not. Differing perceptions justice retrospect precisely way interest are understandable And in expected, judiciary always and to but a award fees is large depends judged. By delaying obtaining influ- measure for its public ence on Slope continued confidence oil the from North for of Alaska should, minimum, years, plaintiffs forth at a set several the conferred no exposition public frank and the true candid United States benefit Only bases of decisions. in this prevail America.1 Nor did on their judged. they fairly principal legal argument manner can be regard to Act, Policy the National Environmental For the stated I dissent reasons above against for the District ruled Court any appel- payment from the to fees them on this issue and this court de- lants. plaintiffs clined to rule at all. The did prevail subsidiary on their issue of the Judge, joined by WILKEY, Circuit right way ROBB, required, width the and Circuit MaeKINNON dissenting. Judges, changed per- which has now to overlooking speech subjected any the Without were ever to cross-examina- by Train, Significantly, Honorable Russell E. relied on tion. these remarks were pertinent majority, may inquire June; pos- be to how made in the comfort of last it is interjected generous apprecia- this into the was Record sible that warmth of ap- appeal. Certainly may by case on it does tion have cooled this December. pear generalities rather these broad along pipeline objects purposes and mit construction plaintiff organizations plaintiffs ob- to which were chartered same route unrealistic, grounds, jected and existed. We think it on environmental say alas, years that no later. suit would have been several brought plaintiffs if the had not been plaintiffs’ achieve- net as This stands payment by able to count on the others Min- of the 1920 amendment ment: attorneys. of the salaries of their staff Leasing a wider to authorize Act eral right plaintiffs pre- equipped opposite way, quite the pared act, and no added en- financial right of objective plaintiffs’ to limit the couragement necessary. Against way each side. 25 feet on weighed attorneys regard other must be With public service blocking securely to potential access plaintiffs, not so situ- disservice ated, hope attorneys’ time at a critical fees needed oil the much higher by enormously spawned history, this ill-advised decision and the our majority just pay. As the all the stimulus needed to launch cost we must delay in courthouse, 1032): (p. week’s “Each them the direction of states by constructing any humility ad- pipeline imposed an as embarrassed knowledge “public is This in- million costs.” of where the ditional $3.5 litiga- per year. “public inter- Plaintiffs’ terest” The flood of million lies. $182 litigation, particularly half and a three est” in the envi- tion has lasted over long given delay field, impetus years, is at least as ronmental is new litigation, have majority costs so construction decision. upped million—well at least $637 been beyond authorities those cited in No dollars, of which all over half a billion opinion need be cited to es- the court’s con- paid the American

will be plaintiffs are not entitled to tablish attorneys’ fees, finally sumer, arrives. oil when those authorities because that, theory, on so enti- hold to be and, legal plaintiffs’ failure From the they (1) tled, plaintiffs show that must opinion, disservice in our substantial legal prevailed important issue, on some majority country this court (2) benefit. conferred a something managed aof has resurrect good plaintiffs’ impugning in- Without victory plaintiffs, for the so legal skills, as tentions or demonstrated dangerous doing fashioned plaintiffs December these precedent ma- fees. The on legal fees done neither. The award of the una- jority points . “. . out: unjustified thus and unwise. sig- might vailability fees having longer nificantly them from neces- deter For mark this: litiga- prevail brought (sic) plaintiffs sary this meritorious such 1032). denying legal case, (p. theory fees “And tion” might of their nor confer undisputed public benefit; deterred well have discernible heavy undertaking gain sympa- burden it thy now suffices 1036). ultimately litigation” passing (p. of the court this impressed by legal suggestion for the substantive merits sued, and, plaintiffs plaintiffs’ case, lo, absent can would not have paid prevail legally prospect of fees to fail to and dislocate economy trying, At intervenors. the defendants or the but can be awarded a argument prize attorneys’ all oral was conceded that consolation fees—in greater plaintiffs plaintiffs for the were salaried case woud counsel this than organiza- complaining paid (Majority Opinion, employees of the otherwise have litigation pp. 1037-1038). extraordinary have The must been tions. This scope employment unprecedented ma- within the nature of what the lawyers; indeed, prosecution jority these has done here could not be better litigation majority one of this sort described than itself was 1037). (p. purposes, qua of no can think a sine footnote non for continua- encouragement greater litigation. lit- to ill-founded tion of this crucial igation. making fact, action of One further Inability C. to Plaintiffs awarding majority in fees Litigate in Alaska brought astounding, even more must pleading plaintiffs, out: counsel for for Poli- Center Law and Social The by affidavit, represented the Dis- cy, up which to now has furnished no attor- trict there would be Court attorneys fee, no Plaintiffs for neys’ charged case. could not under circum- foreseeable in the of the case venue retained was lawyers afford stances to send its only repeated District Columbia after (See Alaska to at- handle case. court, who assurances counsel Halpern) tached affidavit Charles fees, now demand contributing were their without work appear . t does not [I] fee as a service. will Plaintiffs be able to retain substi- In, response defendant Secre- According tute counsel. to Plaintiffs’ Change tary’s of this “Motion Venue” information, pro there bono are no Pipeline Alaska, one Alaska case publico lawyers Anchorage who plain- plaintiffs’ points main was that fee-, handle case without Washington

tiffs’ counsel had under- representation fee,’’ “no taken the transfer, probable effect plaintiffs afford neither could therefore, require will be to Plaintiffs Washington lawyers to send these to discontinue the case. plaintiffs nor could coun- obtain opposition Plaintiffs’ Memorandum in sel in Alaska “who would handle this change supported of venue plaintiffs’ without Said fee”. by, among July (emphasis others, affidavit Memorandum of 19 Halpern, plaintiffs’ supplied throughout): Charles R. who signed counsel had the Memorandum lawyers Plaintiffs’ aof —members quotations above pro publico District Columbia bono Halpern’s taken. Mr. Said affidavit: working law firm fee —have 2) on-going legal The Center and Social massive, Law undertaken a Policy nonprofit, effort, tax-exempt cor- . organized poration the laws under the District of Center Columbia. The Lacking the resources attorneys has staff full-time who private retain of a law services provide legal representation . requested firm, Plaintiffs assistance groups and individuals who from the Center for Law Social previously unrepresented been Policy. agreed The Center to furnish decision-making pri- process, federal attorneys who would work without marily environmental, . fee. program, Pursuant to that Center at-

torneys representation undertook plaintiffs in this case. Plaintiffs, March On through attorneys, volunteer Complaint filed in this Court 8) Legal representation has been provided in this case And, . venue the District paid without Plaintiffs have fee. just of Columbia is not expenses, a convenience and the Wilder- Plaintiffs, is, practical for ah grant ness made $5,000 many to the Center to cover a of tioned case because of the hours salary legal Hillyer. provided of Mr. services without of fee attorneys in as set forth Halpern. Affidavit of Charles 11) plaintiffs Had been forced to Friends of the Earth no has resources Alaska, in file maintain this case attorneys pay in Alaska attorneys is clear Center could participated effectively in have case, my opinion, 7) and, undersigned, in . [T]he highly unlikely plaintiffs Earth, would behalf of of Friends Plain- action, have been opinion able to obtain the in services tiff is of the attorneys qualified of a staff of that Friends un- Earth will be of represent them. able to conduct its case should it be requested by to Alaska as transferred position sup- Plaintiffs’ further the Defendant. ported by the of M. affidavit Stewart Brandborg, Executive Director of The import like was the of Of affidavit Society, one of the three Wilderness Washington Butler, William A. counsel plaintiffs, who said: plaintiff the third Environmental 2) Society Wilderness Fund: Defense non-profit corporation, incorporated in 4) partici- EDF has able to been of District Columbia. It has an pate above-captioned case be- budget $1,100,000, annual . legal provided cause of services attorneys without fee 6) Society Policy, Wilderness has Center for Law and Social major unused income to devote to a le- set forth in the Affidavit Charles gal Halpern July such as this case. It is de- battle

pendent pro support the services bono the continued [WJithout lawyers Halpern, co-plaintiffs such as R. Charles in this case and with- performed pro pub- who reviews the services out the continued bono use lawyers, date in this ease his Affidavit filed lico the Environmental De- prose- this date. The of The extent fense Fund would Wilder- be unable Society’s ness financial involvement cute this case. affidavits [See George payment the case has been the since Alderson of Friends February 1, Earth; Brandborg of one-half the mod- Stewart from The salary Hillyer (one Society; est Saunders Wilderness and Charles Hal- attorneys pern.] the several who have worked case) payment on this and in the In Peter contrast was the affidavit of out-of-pocket expenses some such as LaBate, July (30 1971) then President duplication those involved docu- Bar After Association. long telephone ments distance referring to the number and character calls. the event transfer of counsel available Alas- Alaska, The Wilderness ka, Secretary’s should the motion for deprived services free change granted, of venue be Mr. LaBate provided by the Center Law and said: Policy Social and would have to hire many lawyers Included are of out- private attorneys, if such are available standing competence experience, (see Hillyer), Affidavit of Saunders graduates prestigious of the most law going to handle case at the rate Many schools in the United States. in Alaska. distinguished service records of George plaintiff Alderson of Friends compensation pub- without cases Earth concurred his affidavit: importance thoroughly lic and are 6) relating Friends of the Earth versed federal law to land cap-

been able to conduct the above and the environment. . gratuitiously. of the Alaska Bar As- case would be furnished As President recognize accept plaintiffs For now to claim and sociation I provide fees, responsibility awarded in direct con- counsel, particularly representations of broad in cases tradiction to their sworn significance, July Wilder- and if court is intolerable. Society Et al v Morton is trans- ness Alaska, under-

ferred to our Bar will for the Plaintiffs

take to obtain free acceptable selection, on a basis among qualified coun-

them from

sel available. gist of the above is that one argued points the most vital of America UNITED STATES to transfer whole issue of whether venue availability Alaska was free Appellant. HAIRSTON, Clifton S. Washington, plaintiffs D. counsel No. 71-1657. C., venue and that to transfer meant practical plaintiffs could matter Appeals, United States Court not maintain their suit because District Columbia Circuit. the Pres- absence free counsel. When April argued ident of Alaska Bar availability Alaska, he counsel qua assumption

did it on the sine non compensation.”

counsel “without represented

Plaintiffs to the District

Judge plaintiffs’ re- counsel had compensation, expected

ceived no re- compe- compensation,

ceive and that only

tent counsel without fee avail- Washington,

able D.C. Had been

represented District Court

plaintiffs’ counsel would seek and be

awarded, equal to actual fee incurred, a fee costs actually paid “the or

excess of amount Opinion, appellants” (Majority

owed

p. 1037), prevailed whether legal principal not, or then issues question change would venue dramatically

have stood in a different light Judge. the District Plain- before argued they tiffs could not have deprived counsel, those al- either change ready others, chosen or place. or

venue other lively expectation of fees as such brought

now be awarded would have

many lawyers side, plaintiffs’ either

in Alaska elsewhere. held to

We feel that counsel should be representations they made to solemn

the court services in this

had rendered and would render

Case Details

Case Name: The Wilderness Society v. Rogers C. B. Morton, Secretary of the Interior

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 12, 1974

Citation: 495 F.2d 1026

Docket Number: 72-1796 to 72-1798

Court Abbreviation: D.C. Cir.