Appeal from the United States District Court for the District of Alaska Ralph R. Beistline, Chief District Judge, Presiding D.C. No. 3:06-cv-00224-RRB
The opinion of the court was delivered by: Alarcon, Circuit Judge:
RESURRECTION BAY CONSERVATION
Argued and Submitted May 3, 2011-Anchorage, Alaska
Before: Arthur L. Alarcon, Susan P. Graber, and Jay S. Bybee, Circuit Judges.
The issue presented by this appeal is whether the district court abused its discretion in denying an award of attorney fees to Resurrection Bay Conservation Alliance, an Alaska nonprofit corporation, and Alaska Community Action on Toxics, an Alaska nonprofit corporation (collectively "RBCA") pursuant to section 505(d) of the Clean Water Act ("CWA"), 33 U.S.C. § 1365(d), because RBCA came within the "special circumstances" standard first elaborated in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968) (per curiam). We conclude that the district court abused its discretion in ruling that special circumstances were demonstrated, and we remand with instructions that it award that portion of RBCA's fees and costs reasonably incurred in furtherance of the CWA's purpose.
A On September 22, 2006, RBCA filed a citizen enforcement suit alleging that the City of Seward ("the City") was discharging toxic pollutants from the Seward Small Boat Harbor ("Small Boat Harbor") and a boat repair yard, the SewardMarine Industrial Center ("SMIC"), into Resurrection Bay in violation of the CWA, 33 U.S.C. § 1251 et seq.*fn1 RBCA sought a declaration that the City had violated and was violating the CWA by discharging pollutants without a National Pollution Discharge Elimination System ("NPDES") permit from both the Small Boat Harbor and the SMIC,*fn2 temporary and permanent injunctions prohibiting the City from discharging pollutants from its facilities without an NPDES permit, temporary and permanent injunctions requiring the City to restore waters damaged by its illegal discharges of pollutants, civil penalties for the violations, and an award of RBCA's fees and costs as authorized by the CWA. RBCA's request for civil penalties included $27,500 per day per violation for violations occurring between April 18, 2001, and March 14, 2004, and $32,500 per day per violation for violations occurring after March 15, 2004.
On June 27, 2007, RBCA and the City filed cross-motions for summary judgment. The district court granted partial summary judgment in favor of RBCA and denied the City's motion for summary judgment. It held that, for purposes of the CWA, the City is an operator of industrial facilities that discharges stormwater into waters of the United States.
Accordingly, it is required to apply for an NPDES permit. The district court ordered the City to apply for an NPDES permit for both the Small Boat Harbor and the SMIC. The district court declined, however, to award civil penalties for violations of the CWA, and directed each party to bear its own fees and costs.
RBCA filed a motion to amend the judgment. It challenged the denial of civil penalties and the refusal to award fees and costs. The City filed a motion to amend findings, in which it requested that the district court correct or amend its finding that vessel repair and maintenance activities occur at the Small Boat Harbor facility. The district court granted RBCA's motion in part, noting that it had erred in failing to assess any civil penalty after concluding that an NPDES permit was required. The district court assessed a nominal civil penalty of $1, but declined to permit briefing on the issue of an award of litigation costs. In the same order, ...