Benham v. Ozark Materials River Rock, LLC
Filing
228
OPINION AND ORDER by Judge John E Dowdell ; granting in part 185 Motion for Attorney Fees; granting 214 Motion for Attorney Fees; accepting 225 Report and Recommendation (SAS, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
DAVID BENHAM,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
OZARK MATERIALS RIVER
ROCK, LLC,
Defendant.
Case No. 11-CV-339-JED-FHM
OPINION AND ORDER
The Court has for its consideration Magistrate Judge Frank H. McCarthy’s Report and
Recommendation (“R&R”) (Doc. 225) as to Plaintiff’s Motion for Attorney’s Fees and Expert
Costs (Doc. 185) and Plaintiff’s Motion for Appeal-Related Attorney’s Fees (Doc. 214). The R&R
recommends a total award of $193,270.51 to the Plaintiff based on Plaintiff’s submission of time
records for attorney fees and expert witness fees throughout the litigation. (Doc. 225 at 7).
Defendant Ozark Materials River Rock submitted a timely Objection (Doc. 226) to the R&R.
Pursuant to Fed. R. Civ. P. 72(b)(3), “[t]he district judge must determine de novo any part
of the magistrate judge’s disposition that has been properly objected to. The district judge may
accept, reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.”
I.
Discussion
An award of fees is authorized under 33 U.S.C. § 1365(d) for a prevailing party in an action
brought under the Clean Water Act:
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.
Plaintiff filed this suit on June 1, 2011, seeking injunctive relief and civil penalties under §§ 402
and 404 of the Clean Water Act, 33 U.S.C. § 1251 et seq. The Court dismissed Plaintiff’s § 402
claim as moot on September 24, 2013, based on the fact that Defendant had entered into a Consent
Order concerning that claim with the Oklahoma Department of Environmental Quality on
September 12, 2011. (Doc. 122 at 14). The Court then held a bench trial on the remaining claim
and issued findings of fact and conclusions of law determining that Defendant violated § 402.
(Doc. 160). The Court imposed a civil penalty (id. at 17) and ultimately adopted substantially all
of Plaintiff’s proposed restoration plan (Doc. 184). Defendant appealed, and the Tenth Circuit
affirmed this Court’s decision. (Doc. 204).
Defendant’s main argument in its Objection to Judge McCarthy’s R&R is that some of the
recommended award is for work done by the Plaintiff towards the moot § 402 claim. Defendant
argues, therefore, that the Court should reduce the recommended award for an amount that would
be reasonably related to the prosecution of the § 402 claim. Alternatively, Defendant argues that
the Court should require the Plaintiff to identify what work was related to the moot claim and
reduce the recommended award by that amount.
The Tenth Circuit has held that “failure on some claims should not preclude full recovery
if plaintiff achieves success on a significant, interrelated claim.” Jane L. v. Bangerter, 61 F.3d
1505, 1512 (10th Cir. 1995). Where a plaintiff’s claims involve a “common core of facts” or are
“based on related legal theories,” “[m]uch of counsel’s time will be devoted generally to the
litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis.”
Hensley v. Eckerhart, 461 U.S. 424, 435 (1983).
2
Defendant argues that Plaintiff’s § 402 and § 404 claims were not interrelated, but the Court
disagrees. Both claims arose under the Clean Water Act, and both related to the discharge of
pollutants into Saline Creek as a result of Defendant’s mining operation. (See Doc. 2). The Court
finds that these claims involved a common core of facts that would make it difficult to separate
out which hours were spent on one claim versus the other. For this reason, the Court denies
Defendant’s request to reduce the recommended fee award based on the moot § 402 claim.
Defendant further argues that “special circumstances” support its request for a reduction in
the award. (Doc. 226 at 4). Specifically, Defendant contends that it relied on advice from the
United States Army Corps of Engineers that it was not required to have a § 404 permit. Judge
McCarthy dismissed this argument, stating that Defendant had “not provided any authority or
argument to support its assertion” that this reliance on the Corps should affect the fee award. (Doc.
225 at 3). In its Objection, Defendant still does not provide authority to support the reduction of
Plaintiff’s fee award based on this circumstance, and the Court is not persuaded that it would be
appropriate to reduce the award on this basis. The Court also notes that Defendant has previously
argued that its reliance on the Corps (1) mooted Plaintiff’s § 404 claim or (2) prohibited Plaintiff
from bringing his citizen suit. These arguments were found to be without merit. (Doc. 122 at 10
n.6, Doc. 204 at 13).
II.
Conclusion
For the foregoing reasons, Defendant’s Objection to the Magistrate Judge’s Report and
Recommendation (Doc. 226) is denied, and the Court adopts the Report and Recommendation
(Doc. 225) of the Magistrate Judge. Plaintiff’s Motion for Appeal-Related Attorney Fees (Doc.
214) is granted, and Plaintiff’s Motion for Attorney’s Fees and Expert Costs (Doc. 185) is granted
in part. The total award granted to Plaintiff is $193,270.51.
3
ORDERED this 15th day of January, 2019.
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?