Cook Inletkeeper et al v. United States Army Corps of Engineers et al

Filing 140

ORDER Denying Motion for Attorney Fees at Docket 131 . (Jan, Chambers Staff)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

COOK INLETKEEPER, et al.,
Plaintiffs,
Case No. 3:12-cv-0205-RRB

vs.
UNITED STATES ARMY CORPS OF
ENGINEERS, et al.,
Defendants,

ORDER DENYING ATTORNEY FEES
Docket No. 131

and
ALASKA RAILROAD CORPORATION
and
MATANUSKA-SUSITNA BOROUGH,
Intervenor-Defendants.

This matter involved a dispute regarding the impact of the proposed construction and
operation of the Port MacKenzie Rail Extension on surrounding wetlands. Plaintiffs Cook
Inletkeeper, Sierra Club, and Alaska Survival (collectively “Inletkeeper”), sought relief under the
National Environmental Policy Act of 1969, (“NEPA”),1 and the Clean Water Act, (“CWA”).2
When Plaintiffs filed their Complaint in this case, it contained a NEPA challenge to the same
Environmental Impact Statement (“EIS”) that Plaintiffs were already challenging in the Ninth

1

42 U.S.C. § 4321 et seq.

2

33 U.S.C. § 1251 et seq.

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Circuit. Although the Court of Appeals had not yet ruled on those NEPA issues when the Complaint
was filed in October 2012, it rejected Plaintiffs’ arguments in a cursory order on November 28,
2012.3 The Ninth Circuit later issued a full opinion explaining its decision.4
Following the Ninth Circuit’s initial ruling, Plaintiffs filed a motion for preliminary
injunctive relief in this Court on December 17, 2012.5 Plaintiffs asserted the same NEPA claim, as
well as a claim under the CWA, in support of an injunction staying construction on the railroad while
the Court considered the case.6 The Ninth Circuit then issued its final Opinion on January 23, 2013.7
The court held:
that there was no error under NEPA because the purpose and need statement was
adequate; the agency considered all viable, reasonable alternatives; and the EIS
contains a detailed, thorough, and thoughtful discussion of the wetlands impacts and
mitigation measures.8
On February 11, 2013, this Court denied the motion for a preliminary injunction, explicitly
questioning whether Plaintiffs could succeed in light of the Ninth Circuit’s ruling.9 Plaintiffs

3

Alaska Survival v. Surface Transportation Board, 704 F.3d 615 (9th Cir. 2012).

4

Alaska Survival v. Surface Transportation Board, 705 F.3d 1073 (9th Cir. 2013).

5

Docket 35.

6

Docket 44.

7

Docket 70.

8

705 F.3d at 1089.

9

Docket 79.

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appealed this Court’s denial of the preliminary injunction, and on October 7, 2013, the Ninth Circuit
affirmed.10
On September 26, 2013, Plaintiffs voluntarily dismissed their NEPA claim and went forward
only on the CWA claims.11 The parties then filed cross-motions for summary judgment on the
remaining claims. This Court ultimately concluded that various documents in the administrative
record satisfied the Court’s concerns under the CWA. Accordingly, the Court deferred to the agency
in this matter, resulting in a Judgment in favor of Defendants.12
Pursuant Federal Rule of Civil Procedure 54(d) and Local Civil Rule 54.3,
Intervenor-Defendant Matanuska-Susitna Borough (“the Borough”) now seeks an award of
attorneys’ fees in the amount of $18,947.53.13 The Federal Rules of Civil Procedure require a party
seeking an award of attorneys fees to “specify the judgment and the statute, rule, or other grounds
entitling the movant to the award.”14 In this case, the Borough cites only the CWA as authority for
an award of attorney fees. A defendant may recover attorneys’ fees in a CWA case when
“[p]laintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in

10

Docket 110.

11

Docket 105.

12

Docket 129.

13

Docket 131. The Borough, through an agreement with the Alaska Railroad, paid all legal
fees in this matter. Docket 133.
14

Fed.R.Civ.P. 54(d)(2)(B)(ii).

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subjective bad faith.”15 The amount of attorneys’ fees to be awarded lies within the court’s
discretion.16
The briefing argues that only two specific areas of Plaintiff’s lawsuit were frivolous:
1) Plaintiff’s NEPA claims; and 2) Plaintiff’s argument that an elevated rail was a viable alternative
under the CWA.17 But NEPA and the CWA are separate acts. While the CWA provides a statutory
basis for attorney fees, NEPA does not. In order for a prevailing party to obtain attorney fees under
NEPA, the Equal Access to Justice Act (“EAJA”)18 must apply. The Borough has not argued, and
this Court’s independent research does not indicate, that the Borough qualifies for attorney fees
under the EAJA, or that the Borough can bootstrap an attorney fee award for NEPA claims under
the statutory authority of the CWA, particularly where, as here, there was no argument that the CWA
claims themselves were frivolous. Accordingly, the Court denies attorney fees for the NEPA claim,

15

Razore v. Tulalip Tribes of Washington, 66 F.3d 236, 240 (9th Cir. 1995). The Supreme
Court, has established a federal fee-shifting “dual standard” that directs courts to award attorney's
fees to a prevailing plaintiff in normal circumstances, but only to a prevailing defendant if the action
was “frivolous, unreasonable, or groundless, or [if the] plaintiff continued to litigate after it clearly
became so.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S. Ct. 694, 54 L. Ed.2d
648 (1978). This standard was extended to the CWA in Akiak Native Community v. U.S. E.P.A. , 625
F.3d 1162, 1166 -1167 (9th Cir. 2010). The Ninth Circuit deems claims frivolous when they are
“groundless . . . with little prospect of success,” particularly if the claimant’s position “was
foreclosed by binding precedent.” U.S. v. Manchester Farming P’ship, 315 F.3d 1176, 1183 (9th Cir.
2003).
16

See Pierce v. Underwood, 487 U.S. 552, 571 (1988).

17

Docket 132 & 139. The Borough attorney has provided an estimate of how much time and
effort was spent on the two frivolous arguments, acknowledging that only a fraction of the briefing
was devoted to frivolous arguments. He estimates that eight and one half pages were dedicated to
NEPA arguments, and three and one half pages were dedicated to the elevated rail argument. Docket
133 at 2-3.
18

28 U.S.C. § 2412.

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without reaching the issue of whether or not it was frivolous, due to lack of statutory authority for
such an award.
With respect to the argument that an “elevated rail option” was a viable alternative under the
CWA, the Court agrees that this claim was frivolous in light of the Ninth Circuit’s determination that
an elevated rail option was not a viable alternative under NEPA. The Ninth Circuit specifically
noted:
We previously held in Alaska Survival v. Surface Transportation Board, 705 F.3d
1073, 1088 (9th Cir. 2013), that the elevated rail alternative could reasonably be
deemed infeasible for National Environmental Protection [sic] Act (“NEPA”)
purposes. That conclusion makes it exceedingly unlikely that it was unreasonable for
the Corps to deem this alternative impracticable under the Clean Water Act
(“CWA”). Further, the record supports the determination that the Corps reasonably
concluded, after consultation with Alaska Railroad Corporation (“Railroad”), that the
elevated rail alternative would significantly raise project costs and introduce new
logistical problems, and that the Corps did not blindly accept the Railroad’s
representations of cost and logistics.19
Having concluded that the Plaintiffs’ elevated rail argument was frivolous, and given that the
CWA applies to this discrete issue, the Court must determine how much, if any, attorney fees are
warranted. Plaintiffs suggest that the Court must consider whether the Borough, as Intervenor,
played a significant role in the litigation of the disputed claim.20 The cases relied upon by Plaintiffs,

19

Docket 110 at 2-3.

20

See Dep’t of Fair Employment & Hous. v. Lucent Tech., Inc, 642 F.3d 728, 742 (9th Cir.
2011); Grove v. Mead Sch. Dist., 753 F.2d 1528, 1535 (9th Cir. 1985); Seattle Sch. Dist. No. 1 v.
Washington, 633 F.2d 1338, 1349–50 (9th Cir. 1980), aff’d, 458 U.S. 457 (1983) (holding the district
court correctly denied attorneys’ fees to an intervenor with respect to initial phase of trial in which
it “played a de minimis role”).

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however, are not CWA cases. It is unclear whether this “significant role” standard applies to CWA
cases.
Nevertheless, the Court notes that the Borough dedicated, by its own estimation, a total of
three and one half pages of briefing to the “elevated rail” issue.21 Using the Borough’s questionable
method of calculation, valuing the arguments based upon the number of pages dedicated to those
arguments in the briefing, the three and one half pages of elevated rail briefing would be valued at
just over $5,400 in attorney fees. But the Court finds that a balance of the equities weighs against
an award of attorney fees here.
The Borough argues that it’s “unique position” in this case allowed it to “illuminate
documents in the record that they had prepared, including documents explaining the costs of elevated
rail through wetlands.”22 A review of the Intervenors’ Opposition to Plaintiffs’ Preliminary
Injunction Motion at Docket 57 reveals that the Intervenors noted that “this issue was first
considered during the NEPA process for the PMRE.”23 In their Opposition, the Intervenors very
briefly summarized the findings of the EIS, FEIS and ROD on the elevated rail issue, and in
approximately two pages outlined the detailed cost information that ARRC provided the Corps
during the permitting process.24 Significantly, the Borough concluded that:

21

Docket 133 at 2-3.

22

Docket 139 at 11, citing Docket 57 at 25-26.

23

Docket 57 at 31.

24

Docket 57 at 31-33.

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The Corps gathered a significant amount of evidence showing that elevating portions
of the rail line planned for the PMRE would have been cost prohibitive, and thus,
impracticable. . . . Plaintiffs’ accusations that the Corps’ evidence was somehow not
detailed enough are completely groundless. Accordingly, they are highly unlikely to
demonstrate that the Corps’ decision on this score was arbitrary and capricious.25
The Court concludes that the very brief arguments by the Intervenor-Defendants on the
elevated rail issue did not significantly contribute to the Court’s ruling in the matter. Indeed, the
United States Army Corp of Engineers addressed the elevated rail alternative in even more detail in
its pleading at Docket 56. On this issue, the briefing of the Borough was duplicative.
Conclusion
In light of the foregoing, the Motion for Attorney Fees at Docket 131 is DENIED.
IT IS SO ORDERED this 2nd day of September, 2014.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

25

Docket 57 at 33 (emphasis added).

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