The Wilderness Society v. Rogers C. B. Morton, Secretary of the Interior ( 1974 )

WILKEY, Circuit Judge,

joined by MaeKINNON and ROBB, Circuit Judges, dissenting.

We respectfully dissent. It is difficult to see that either of these plaintiffs “acted as a ‘private attorney general,’ vindicating a policy that Congress considered of the highest priority.” Judging from Congress’ most recent action, these plaintiffs have been frustrating the policy Congress considers highly desirable and of the utmost urgency.

Nor do we agree that “this litigation may well have provided substantial benefits to particular individuals.” Aside from the numerous lawyers involved, we are at a loss to know who those “particular individuals” enjoying “substantial benefits” might be. It is hard to visualize the average American in this winter of 1973-74, turning down his thermostat and with a careful eye on his auto fuel gauge, feeling that warm glow of gratitude to those public-spirited plaintiffs in the Alaska Pipeline case.

While no one questions the sincere motives of these “public interest” plaintiffs, it is not enough for a plaintiff to have a sincere feeling of self-righteous correctness in bringing litigation. There is the matter of good judgment in assaying just where the public interest lies. Did the plaintiffs exercise good judgment here in bringing suit to block the Alaska Pipeline? In retrospect, we submit they did not.

And in retrospect is precisely the way the award of attorneys’ fees is always judged. By delaying the obtaining of oil from the North Slope of Alaska for several years, the plaintiffs conferred no public benefit on the United States of America.¹ Nor did they prevail on their principal legal argument with regard to the National Environmental Policy Act, for the District Court ruled against them on this issue and this court declined to rule at all. The plaintiffs did prevail on their subsidiary issue of the width of the right of way required, which Congress has now changed to permit construction of the pipeline along the same route to which plaintiffs objected on environmental grounds, but alas, several years later.

This stands as plaintiffs’ net achievement: the amendment of the 1920 Mineral Leasing Act to authorize a wider right of way, quite the opposite of the plaintiffs’ objective to limit the right of way to 25 feet on each side. Against this public service must be weighed the public disservice in blocking access to the much needed oil at a critical time in our history, and the enormously higher cost we must all pay. As the majority states (p. 1032): “Each week’s delay in constructing the pipeline imposed an additional $3.5 million in costs.” This is $182 million per year. Plaintiffs’ litigation has lasted over three and a half years, the delay is at least as long as the litigation, so construction costs have been upped at least $637 million — well over half a billion dollars, all of which will be paid for by the American consumer, when the oil finally arrives.

From the plaintiffs’ legal failure and, in our opinion, substantial disservice to our country the majority of this court has managed to resurrect something of a victory for the plaintiffs, and in so doing has fashioned a dangerous precedent on attorneys’ fees. The majority points out: “. . . the unavailability of attorneys’ fees might significantly deter them from having brought this meritorious (sic) litigation” (p. 1032). “And denying fees might well have deterred appellants from undertaking the heavy burden of this litigation” (p. 1036). We are not impressed by the suggestion that the plaintiffs would not have sued, absent the prospect of legal fees to be paid by the defendants or the intervenors. At oral argument it was conceded that all counsel for the plaintiffs were salaried employees of the complaining organizations. This litigation must have been within the scope of the employment of these lawyers; indeed, the prosecution of litigation of this sort was one of the objects and purposes for which the plaintiff organizations were chartered and existed. We think it unrealistic, to say that no suit would have been brought if the plaintiffs had not been able to count on the payment by others of the salaries of their staff attorneys. The plaintiffs were equipped and prepared to act, and no added financial encouragement was necessary.

With regard to other attorneys and potential plaintiffs, not so securely situated, the hope of attorneys’ fees spawned by this ill-advised decision may be just the stimulus needed to launch them in the direction of the courthouse, embarrassed by any humility as to their knowledge of where the “public interest” lies. The flood of “public interest” litigation, particularly in the environmental field, is given a new impetus by the majority decision.

No authorities beyond those cited in the court’s opinion need be cited to establish that plaintiffs are not entitled to attorneys’ fees, because those authorities hold that, on any theory, to be so entitled, plaintiffs must show that they (1) prevailed on some important legal issue, and (2) conferred a public benefit. Without impugning plaintiffs’ good intentions or demonstrated legal skills, as of December 1973 these plaintiffs have done neither. The award of legal fees is thus unjustified and unwise.

For mark this: no longer is it necessary for such plaintiffs to prevail on the legal theory of their case, nor to confer a discernible undisputed public benefit; it now suffices only to gain the sympathy of the court ultimately passing on legal fees for the substantive merits of plaintiffs’ case, and, lo, plaintiffs can fail to prevail legally and dislocate the economy in trying, but can be awarded a consolation prize of attorneys’ fees — in this case greater than plaintiffs woud otherwise have paid (Majority Opinion, pp. 1037-1038). The extraordinary and unprecedented nature of what the majority has done here could not be better described than by the majority itself in footnote 9 (p. 1037). We can think of no greater encouragement to ill-founded litigation.

One further fact, making the action of the majority in awarding attorneys’ fees even more astounding, must be brought out: counsel for plaintiffs, in pleading and by affidavit, represented to the District Court that there would be no attorneys’ fees charged in this case. The venue of the case was retained in the District of Columbia only after repeated assurances to the court, by counsel who now demand attorneys’ fees, that they were contributing their work without fee as a public service.

In, response to the defendant Secretary’s “Motion to Change Venue” of this Alaska Pipeline case to Alaska, one of plaintiffs’ main points was that plaintiffs’ Washington counsel had undertaken the representation for “no fee,’’ and that plaintiffs neither could afford to send these Washington lawyers to Alaska nor could plaintiffs obtain counsel in Alaska “who would handle this case without fee”. Said plaintiffs’ Memorandum of 19 July 1971 (emphasis supplied throughout):

Plaintiffs’ lawyers — members of a District of Columbia pro bono publico law firm working for no fee — have undertaken a massive, on-going legal effort, .

Lacking the resources to retain the services of a private law firm, Plaintiffs requested assistance from the Center for Law and Social Policy. The Center agreed to furnish attorneys who would work without fee.

On March 23, 1970, Plaintiffs, through their volunteer attorneys, filed in this Court a Complaint

. And, venue in the District of Columbia is not just a convenience to Plaintiffs, it is, for ah practical purposes, a sine qua non for continuation of this crucial litigation.

C. Plaintiffs Inability to Litigate in Alaska

The Center for Law and Social Policy, which up to now has furnished Plaintiffs with attorneys for no fee, could not under foreseeable circumstances afford to send its lawyers to Alaska to handle this case. (See attached affidavit of Charles Halpern)

. [I] t does not appear that Plaintiffs will be able to retain substitute counsel. According to Plaintiffs’ information, there are no pro bono publico lawyers in Anchorage who would handle this case without fee-,

The probable effect of the transfer, therefore, will be to require Plaintiffs to discontinue the case.

Plaintiffs’ Memorandum in opposition to any change of venue was supported by, among others, the affidavit of Charles R. Halpern, who as plaintiffs’ counsel had signed the Memorandum from which the above quotations were taken. Said Mr. Halpern’s affidavit:

2) The Center for Law and Social Policy is a nonprofit, tax-exempt corporation organized under the laws of the District of Columbia. The Center has a staff of full-time attorneys who . provide legal representation to groups and individuals who have previously been unrepresented in the federal decision-making process, primarily in the environmental, . Pursuant to that program, Center attorneys undertook representation of the plaintiffs in this case.

8) Legal representation has been provided to the plaintiffs in this case without fee. Plaintiffs have paid only litigation expenses, and the Wilderness Society has made a grant of $5,000 to the Center to cover a part of the salary of Mr. Hillyer.

11) Had plaintiffs been forced to file or maintain this case in Alaska, it is clear that Center attorneys could not have participated effectively in the case, and, in my opinion, it is highly unlikely that plaintiffs would have been able to obtain the services of a staff of attorneys qualified to represent them.

Plaintiffs’ position was further supported by the affidavit of Stewart M. Brandborg, Executive Director of The Wilderness Society, one of the three plaintiffs, who said:

2) The Wilderness Society is a non-profit corporation, incorporated in the District of Columbia. It has an annual budget of $1,100,000, .

6) The Wilderness Society has no unused income to devote to a major legal battle such as this case. It is dependent on the services of pro bono lawyers such as Charles R. Halpern, who reviews the services performed to date in this ease in his Affidavit filed this date. The extent of The Wilderness Society’s financial involvement in the case has been the payment since February 1, 1971, of one-half the modest salary of Saunders Hillyer (one of the several attorneys who have worked on this case) and in the payment of some out-of-pocket expenses such as those involved in duplication of documents and long distance telephone calls. In the event of a transfer to Alaska, The Wilderness Society would be deprived of the free legal services provided by the Center for Law and Social Policy and would have to hire private attorneys, if such are available (see Affidavit of Saunders Hillyer), to handle this case at the going rate in Alaska.

George Alderson of plaintiff Friends of the Earth concurred in his affidavit:

6) Friends of the Earth has only been able to conduct the above captioned case because of the many hours of legal services provided without fee by the attorneys as set forth in the Affidavit of Charles Halpern. Friends of the Earth has no resources with which to pay attorneys in Alaska

7) . [T]he undersigned, on behalf of Friends of the Earth, Plaintiff in this action, is of the opinion that Friends of the Earth will be unable to conduct its case should it be transferred to Alaska as requested by the Defendant.

Of like import was the affidavit of William A. Butler, Washington counsel for the third plaintiff Environmental Defense Fund:

4) EDF has been able to participate in the above-captioned case because of the legal services provided without fee by the attorneys at the Center for Law and Social Policy, as set forth in the Affidavit of Charles Halpern of July 1971. [WJithout the continued support of the co-plaintiffs in this case and without the continued use of pro bono pub-lico lawyers, the Environmental Defense Fund would be unable to prosecute this case. [See affidavits of George Alderson of Friends of the Earth; Stewart Brandborg from The Wilderness Society; and Charles Hal-pern.]

In contrast was the affidavit of Peter LaBate, then (30 July 1971) President of the Alaska Bar Association. After referring to the number and character of counsel available to plaintiffs in Alaska, should the Secretary’s motion for change of venue be granted, Mr. LaBate said:

Included are many lawyers of outstanding competence and experience, graduates of the most prestigious law schools in the United States. Many have distinguished records of service without compensation in cases of public importance and are thoroughly versed in federal law relating to land and the environment. .

As President of the Alaska Bar Association I recognize and accept the responsibility we have to provide counsel, particularly in cases of broad public significance, and if the Wilderness Society Et al v Morton is transferred to Alaska, our Bar will undertake to obtain for the Plaintiffs a free selection, on a basis acceptable to them from among the qualified counsel available.

The gist of the above is that one of the most vital points argued on the whole issue of whether to transfer venue to Alaska was the availability of free counsel to plaintiffs in Washington, D. C., and that to transfer venue meant as a practical matter that plaintiffs could not maintain their suit because of the absence of free counsel. When the President of the Alaska Bar argued the availability of counsel in Alaska, he did it on the sine qua non assumption of counsel “without compensation.”

Plaintiffs represented to the District Judge that plaintiffs’ counsel had received no compensation, expected to receive no compensation, and that competent counsel without fee were only available in Washington, D.C. Had it been represented to the District Court that plaintiffs’ counsel would seek and be awarded, not only a fee equal to actual attorneys’ costs incurred, but a fee in excess of “the amount actually paid or owed by appellants” (Majority Opinion, p. 1037), whether plaintiffs prevailed on their principal legal issues or not, then the question of change of venue would have stood in a dramatically different light before the District Judge. Plaintiffs could not have argued they would be deprived of counsel, either those already chosen or others, by a change in venue to Alaska or any other place. The lively expectation of such fees as may now be awarded would have brought many lawyers to plaintiffs’ side, either in Alaska or elsewhere.

We feel that counsel should be held to the solemn representations they made to the court that the legal services they had rendered and would render in this case would be furnished gratuitiously. For the plaintiffs now to claim and be awarded attorneys’ fees, in direct contradiction to their sworn representations to the court in July 1971, is intolerable.

1 . Without overlooking the speech of the Honorable Russell E. Train, relied on by the majority, it may be pertinent to inquire how this was interjected into the Record of this case on appeal. Certainly it does not appear that these rather broad generalities were ever subjected to any cross-examination. Significantly, these remarks were made in the comfort of last June; it is possible that this generous warmth of appreciation may have cooled by this December.