Ecological Rights Foundation v. City of Eureka

Background

The City of Eureka operated the Elk River Wastewater Treatment Plant under a Clean Water Act permit issued by the California Regional Water Quality Control Board, North Coast Region. Ecological Rights Foundation, referred to in the order as EcoRights or ERF, filed the action in March 2022, alleging that the City’s operation of the plant violated the permit.

The parties mediated the dispute and reached an agreement in principle. The court entered their proposed consent decree on January 27, 2023. The decree provided that it could be modified if the Regional Board issued a new or reissued discharge permit whose requirements were reflected in the decree.

The Regional Board issued the City a new National Pollutant Discharge Elimination System permit in October 2023. In October 2024, the City moved to modify the consent decree. EcoRights opposed the motion, arguing that the new permit had not yet become “final pursuant to applicable law.” The court found that the permit was final and granted the City’s motion to modify the decree. The parties then jointly proposed an amended consent decree, which the court entered.

The City later moved for attorney’s fees and costs incurred in litigating the motion to modify the consent decree. The court had jurisdiction under 33 U.S.C. § 1365(a)(1) and 28 U.S.C. § 1331.

Applicable Fee Standard

The consent decree stated that the prevailing party in a dispute arising under the decree would be entitled to fees and costs under the standard established by 33 U.S.C. § 1365(d). That provision allows a court to award litigation costs, including reasonable attorney and expert-witness fees, to a prevailing or substantially prevailing party when the court determines that an award is appropriate.

The court applied the rule from Christiansburg Garment Co. v. Equal Employment Opportunity Commission, as adopted by the Ninth Circuit for Clean Water Act and Resource Conservation and Recovery Act cases. Under that rule, a prevailing plaintiff ordinarily receives fees unless special circumstances make an award unjust. A prevailing defendant, however, may receive fees only if the plaintiff’s claim or litigation conduct was frivolous, unreasonable, groundless, meritless, or vexatious, or if the plaintiff continued litigating after the claim clearly became so.

The City argued that the consent decree required the court to apply only the statutory text asking whether fees were “appropriate,” rather than the case law interpreting that standard. The court rejected that argument, concluding that the decree expressly incorporated the established legal standard, including the Christiansburg rule.

California Civil Code Section 1717

The City also argued that applying the Christiansburg standard would create a non-reciprocal attorney’s-fee provision in a California contract, contrary to California Civil Code section 1717. The court rejected that argument as well. It held that the Clean Water Act’s federal fee standard preempted application of section 1717 to this consent decree because applying section 1717 would undermine the Clean Water Act’s goal of encouraging private plaintiffs to enforce the statute.

The court further stated that, even if section 1717 were not preempted, it was not clear that the statute would require a reciprocal fee standard in this case because California courts recognize exceptions for more specific statutes that use one-sided fee provisions to advance the public interest.

The City’s Fee Request

The City argued that EcoRights acted unreasonably by taking different positions about the finality of the 2023 permit. According to the City, EcoRights had stated in a state-court lawsuit challenging the permit that it had exhausted available administrative remedies, while later arguing in the consent-decree proceeding that the permit was not yet final under applicable law.

The court acknowledged that EcoRights had taken those positions. It nevertheless concluded that the difference between exhausting administrative remedies and determining whether an agency action was “final pursuant to applicable law” did not make EcoRights’s argument frivolous or unreasonable. The court also found that the City had not presented relevant authority requiring a different result.

Because the City failed to show that EcoRights’s conduct was unreasonable, frivolous, meritless, or vexatious, as required for a fee award to a prevailing defendant under Christiansburg, the court declined to award fees. The court did not consider the City’s supplemental evidence about the amount of fees, and overruled EcoRights’s objection to that evidence as moot.

Disposition

Judge Jon S. Tigar denied the City’s motion for attorney’s fees. The order’s title and discussion refer to fees and costs, while its conclusion states that the City’s motion for attorney’s fees was denied.