Saint John's Organic v. Gem County Mosquito

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAINT JOHN’S ORGANIC FARM; 
PETER DILL, individually,
Plaintiffs-Appellants, No. 07-35797
v. D.C. No.
GEM COUNTY MOSQUITO  CV-04-00087-BLW
ABATEMENT DISTRICT, a political ORDER AND
subunit of the State of Idaho; GEM AMENDED
COUNTY, STATE OF IDAHO, a OPINION
political unit of the State of Idaho,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, District Judge, Presiding
Argued and Submitted
March 10, 2009—Seattle, Washington
Filed July 16, 2009
Amended August 3, 2009
Before: William A. Fletcher, Ronald M. Gould and
Richard C. Tallman, Circuit Judges.
Opinion by Judge William A. Fletcher;
Concurrence by Judge Tallman
10033
SAINT JOHN’S v. GEM COUNTY MOSQUITO 10037
COUNSEL
William M. Eddie; FIELD JERGER, LLP, Portland, Oregon,
Charles M. Tebbutt, WESTERN ENVIRONMENTAL LAW
CENTER, Eugene, Oregon, for the appellants.
Susan E. Buxton, MOORE SMITH BUXTON & TURCKE,
Boise, Idaho, Mark L. Pollott, Boise, Idaho, Murray D. Feld-
man, HOLLAND & HART, LLP, Boise, Idaho, Michael John
Kane, Boise, Idaho, for the appellee.
ORDER
The opinion filed in this matter on July 16, 2009 is
amended as follows:
1. The party caption is amended to delete the reference to
intervenor parties and now reads:
“SAINT JOHN’S ORGANIC FARM; PETER DILL,
individually,
Plaintiffs - Appellants,
v.
GEM COUNTY MOSQUITO ABATEMENT
DISTRICT, a political subunit of the State of Idaho;
GEM COUNTY, STATE OF IDAHO, a political
unit of the State of Idaho,
10038 SAINT JOHN’S v. GEM COUNTY MOSQUITO
Defendants - Appellees.”
2. The counsel listing is amended to delete any reference to
counsel for intervenor parties and now reads:
“William M. Eddie, FIELD JERGER, LLP, Port-
land, OR, Charles M. Tebbutt, WESTERN ENVI-
RONMENTAL LAW CENTER, Eugene, OR, for
the Appellants
Susan E. Buxton, MOORE SMITH BUXTON &
TURCKE, Boise, ID, Mark L. Pollott, Boise, ID,
Murray D. Feldman, HOLLAND & HART, LLP,
Boise, ID, Michael John Kane, Boise, ID, for the
Appellee”
OPINION
W. FLETCHER, Circuit Judge:
Plaintiffs Saint John’s Organic Farm and Peter Dill (collec-
tively, “Dill”) filed suit under the citizen-suit provisions of the
Clean Water Act (“CWA”), 33 U.S.C. § 1365, against the
Gem County Mosquito Abatement District and Gem County
(collectively, “GCMAD”). Dill alleged that GCMAD’s dis-
charges of pesticides directly into the waters of the United
States without a National Pollutant Discharge Elimination
System (“NPDES”) permit violated the CWA. Dill and
GCMAD settled the suit.
The Settlement Agreement (“Agreement”) limited
GCMAD’s pesticide spraying in several ways and provided
that an application for “costs of litigation (including reason-
able attorney and expert witness fees)” under 33 U.S.C.
§ 1365(d) could be made to the district court. (For ease of ref-
erence, we will refer simply to “attorney’s fees.”) The district
SAINT JOHN’S v. GEM COUNTY MOSQUITO 10039
court denied Dill’s attorney’s fees application, holding under
§ 1365(d) that Dill was not a “prevailing or substantially pre-
vailing party” and, in the alternative, that it was not “appropri-
ate” to grant fees to Dill.
We reverse. We hold that Dill was a prevailing party under
§ 1365(d). We remand to the district court to consider
whether fees are appropriate under the standard articulated in
this opinion.
I. Background
This case arises out of GCMAD’s longstanding use of pes-
ticides to control mosquitoes in Gem County, Idaho. Among
other measures, GCMAD has applied adulticides — pesti-
cides used to kill adult mosquitoes — by spraying from air-
planes and “fogging” from trucks. Dill sent GCMAD a notice
of intent to sue pursuant to 33 U.S.C. § 1365(b), alleging that
GCMAD was required to obtain an NPDES permit from the
Environmental Protection Agency (“EPA”) for its discharge
of pesticides (not limited to adulticides) into the waters of the
United States. GCMAD then applied to the EPA for an
NPDES permit. The EPA responded that an NPDES permit
was unnecessary (and therefore unavailable) under an EPA
interim interpretive guidance.
After the EPA refused to grant a permit to GCMAD, the
parties engaged in preliminary settlement talks. Before a set-
tlement was reached, however, GCMAD brought suit against
the EPA and Dill in federal district court for the District of
Columbia. GCMAD sought a declaratory judgment that either
it was not required to obtain a permit or that the EPA was
required to issue it a permit. However, GCMAD consistently
contended in that court that a permit was not required. Dill
responded by filing suit in federal district court in Idaho. As
he had alleged in his intent-to-sue letter, Dill again alleged
that GCMAD was violating the CWA by discharging pesti-
cides (not limited to adulticides) into the waters of the United
10040 SAINT JOHN’S v. GEM COUNTY MOSQUITO
States without an NPDES permit. The district court in Idaho
stayed proceedings pending resolution of the suit in D.C. dis-
trict court.
The D.C. district court dismissed GCMAD’s suit in January
2003. Gem County Mosquito Abatement Dist. v. EPA, 398 F.
Supp. 2d 1, 4 (D.D.C. 2005). It held that there was no case or
controversy between GCMAD and the EPA because both par-
ties took the position that no permit was required. Id. at 6-8.
It further held that venue in D.C. was improper for GCMAD’s
claim against Dill. Id. at 12-13. GCMAD appealed this deci-
sion to the D.C. Circuit, but then dismissed its own appeal.
Gem County Mosquito Abatement Dist. v. EPA, 2005 WL
3789086 (D.C. Cir. Sept. 8, 2005).
The Idaho district court lifted its stay in March 2005. In
July 2006, the parties filed a Settlement Agreement
(“Settlement Agreement” or “Agreement”) with the district
court. The Agreement requires GCMAD: (1) to make a con-
certed effort to substantially reduce over five years its use of
adulticides by attempting to meet yearly targets for reduced
use; (2) not to engage in aerial spraying of adulticides except
in the event of a declared health emergency; (3) not to engage
in truck fogging of adulticides within 300 feet of the Payette
River; on the Payette River Wildlife Management area or
within 300 feet of a section of that area; or on or within 150
feet of any irrigation canal in the county; (4) to conduct sur-
veillance monitoring and upgrade surveillance activities for
mosquitoes and apply mosquito threshold standards before
fogging; (5) to contribute funds annually to the Gem County
Soil and Water Conservation District to help improve drain-
age in order to facilitate reduction of mosquito habitat; (6) to
participate in a state planning committee on the West Nile
Virus; (7) to work with landowners to eliminate mosquito
habitat; and (8) to apply reasonable standards, take reasonable
steps, and consider all relevant factors when complying with
requests from property owners that their property not be
sprayed.
SAINT JOHN’S v. GEM COUNTY MOSQUITO 10041
The Agreement requires Dill: (1) to release all claims
against GCMAD under the CWA and dismiss his suit with
prejudice; (2) to work with GCMAD to notify Dill’s neigh-
bors about the Agreement and the mosquito control methods
to be used around his land; (3) to introduce additional mos-
quito predators on his property; and (4) to agree not to sue
under the CWA as long as GCMAD complies with the Agree-
ment.
The Agreement provides that the district court should retain
jurisdiction to enforce its terms. Finally, the Agreement pro-
vides, “The parties have not agreed on the issues of attorney
fees and costs. The parties agree that the Court will retain
jurisdiction to decide any applications for attorney fees and
costs pursuant to 33 U.S.C. § 1365(d) submitted by any
party.”
Dill applied to the district court for attorney’s fees. The dis-
trict court denied Dill’s application under 33 U.S.C.
§ 1365(d), holding that Dill was not a “prevailing or substan-
tially prevailing party” and, in the alternative, that an award
was not “appropriate.” Dill timely appealed.
II. Standard of Review
We review the district court’s award or denial of attorney’s
fees for abuse of discretion. Fischer v. SJB-P.D. Inc., 214
F.3d 1115, 1118 (9th Cir. 2000). Under this standard, we
review the district court’s factual findings for clear error and
review de novo its legal analysis. Id.III. Discussion
[1] Section 505(d) of the CWA provides:
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
10042 SAINT JOHN’S v. GEM COUNTY MOSQUITO
witness fees) to any prevailing or substantially pre-
vailing party, whenever the court determines such
award is appropriate.
33 U.S.C. § 1365(d). In order to award attorney’s fees under
§ 1365(d), a district court must make two findings. First, it
must find that the fee applicant is a “prevailing or substan-
tially prevailing party.” Second, it must find that an award of
attorney’s fees is “appropriate.” We address each in turn.
A. “Prevailing or Substantially Prevailing Party”
Dill contends that he is a prevailing party within the mean-
ing of § 1365(d). He makes two arguments. First, he argues
that he received “actual relief on the merits of his claim” that
“materially alter[ed]” the legal relationship between him and
GCMAD by “modifying [GCMAD’s] behavior in a way that
directly benefits” Dill. Richard S. v. Dep’t of Dev. Servs. of
Cal., 317 F.3d 1080, 1086 (9th Cir. 2003) (internal quotation
marks omitted). Second, in the alternative, he argues that he
is entitled to recover fees on the “catalyst theory.” For the rea-
sons that follow, we agree with Dill’s first argument. We do
not reach his second argument.
[2] A litigant qualifies as a prevailing party if it has
obtained a “court-ordered ‘chang[e] [in] the legal relationship
between [the plaintiff] and the defendant.’ ” Buckhannon Bd.
& Care Home, Inc. v. W. Va. Dep’t of Health & Human Res.,
532 U.S. 598, 604 (2001) (alterations in original) (citation
omitted). “[T]he plaintiff must be able to point to a resolution
of the dispute which changes the legal relationship between
itself and the defendant.” Tex. State Teachers Ass’n v. Gar-
land Indep. Sch. Dist., 489 U.S. 782, 792 (1989). Following
Buckhannon and Texas State Teachers, we have held that par-
ties must have obtained judicially enforceable “actual relief
on the merits of [their] claim that materially alter[ed] the legal
relationship between the parties.” Richard S., 317 F.3d at
SAINT JOHN’S v. GEM COUNTY MOSQUITO 10043
1087 (alterations in original) (internal quotation marks omit-
ted).
We divide our application of Richard S. to the Settlement
Agreement into three parts: (1) judicial enforcement; (2)
material alteration of the legal relationship between the par-
ties; and (3) actual relief on the merits of Dill’s claim.
[3] First, we conclude that the terms of the Agreement are
judicially enforceable. The Agreement specifically provided
that its terms would be enforceable by the district court. Pur-
suant to the Agreement, the district court’s order dismissing
Dill’s complaint provided, “The Court expressly retains juris-
diction over the matter for the purposes of (i) enforcing the
Settlement Agreement entered into between the parties and
the terms of the Settlement Agreement are incorporated herein
by reference, and (ii) deciding any applications for attorney
fees and costs pursuant to 33 U.S.C. § 1365(d).” Binding set-
tlement agreements over which the district court retains juris-
diction to enforce are judicially enforceable. Richard S., 317
F.3d at 1088.
[4] Second, we conclude that the Agreement effected a
material alteration in the legal relationship between the par-
ties. Dill and GCMAD did not agree in the district court on
whether, or how much, GCMAD’s behavior was changed as
a result of the Agreement. Dill contended that the Agreement
required GCMAD to change the manner in which it had been
applying, and would apply, adulticides. However, GCMAD
contended that the Agreement required it to do only what it
was already doing and would continue to do. The district
court declined to resolve this dispute. But the court noted that
even if the Agreement required GCMAD to do only what it
was already doing, it was undisputed that GCMAD’s behavior
became legally required rather than voluntary as a result of
the Agreement.
Third, for the reasons that follow, we conclude that Dill
achieved actual relief on the merits of his claim. To achieve
10044 SAINT JOHN’S v. GEM COUNTY MOSQUITO
such relief, a plaintiff must receive some actual relief that
serves the goals of the claim in his or her complaint. As
explained below, the relief achieved need not be of precisely
the same character as the relief sought in the complaint, but
it must require defendants to do something they otherwise
would not have been required to do.
[5] The threshold for sufficient relief to confer prevailing
party status is not high. “If the plaintiff has succeeded on any
significant issue in litigation which achieve[d] some of the
benefit the parties sought in bringing suit, the plaintiff has
crossed the threshold to a fee award of some kind.” Tex. State
Teachers, 489 U.S. at 791-92 (alteration in original) (internal
quotation marks omitted). In Farrar v. Hobby, 506 U.S. 103(1992), the Supreme Court made clear how little actual relief
is necessary. Plaintiffs had received only nominal damages at
trial, even though in the complaint they had sought substantial
actual damages. The Court nonetheless held that the plaintiffs
were eligible for attorney’s fees as prevailing parties, explain-
ing that “a plaintiff who wins nominal damages is a prevailing
party” because a “judgment for damages in any amount,
whether compensatory or nominal, modifies the defendant’s
behavior for the plaintiff ’s benefit by forcing the defendant
to pay an amount of money he otherwise would not pay.” Id.
at 112-13. Thus, while the nature and quality of relief may
affect the amount of the fees awarded, an extremely small
amount of relief is sufficient to confer prevailing party status.
See id. at 114.
In Fischer, 214 F.3d at 1115, we applied Farrar to hold not
only that the amount of relief obtained may be much smaller
than the amount sought, but also that it need not be identical
in form. The plaintiff in Fischer had sought injunctive relief
under the Americans with Disabilities Act against an inn that
had refused to allow him to enter with his service dog. Id. at
1117. The parties entered into a settlement under which the
inn agreed to print a four-paragraph statement explaining its
policy of nondiscrimination against people with disabilities.
SAINT JOHN’S v. GEM COUNTY MOSQUITO 10045
Id. The district court denied a grant of attorney’s fees, but we
reversed, holding that “[b]ecause Fischer has an enforceable
settlement that requires the Inn to do something it otherwise
would not be required to do, Fischer is a ‘prevailing party.’ ”
Id. at 1118. We stated, “According to Fischer’s complaint, the
goal of his ADA claim was to obtain an injunction that would
force the Inn to change its alleged policy and practice of
denying access to people who use service dogs. In the end that
is exactly what he achieved.” Id. at 1120.
In this case, Dill sought to require GCMAD to cease dis-
charging pesticides into the waters of the United States unless
it could obtain a NPDES permit. Specifically, the complaint
asked the district court, inter alia, to “grant the following
relief:” ”Enjoin Defendants from applying pollutants in the
Payette River, its tributaries, and all other surface waters in
such a manner as will result in further violations of the Act.
In particular, Plaintiffs seek an order enjoining Defendants
from discharging pollutants without a NPDES permit.”
The EPA refused to issue a permit to GCMAD on the
ground that under its interim interpretive guidance no permit
was necessary for GCMAD to engage in discharge of pesti-
cides for purposes of mosquito control. This guidance was
incorporated into a formal regulation providing that mosquito
abatement programs that comply with the Federal Insecticide,
Fungicide, and Rodenticide Act (“FIFRA”) do not result in
the discharge of pollutants under the CWA and therefore do
not require a NPDES permit. 40 C.F.R. § 122.3(h); 71 Fed.
Reg. 68483 (Nov. 27, 2006). The regulation was eventually
held invalid in National Cotton Council of America v. EPA,
553 F.3d 927 (6th Cir. 2009), a multidistrict litigation deci-
sion that is binding in this circuit. Under National Cotton
Council, GCMAD is now required to obtain a NPDES permit
for its pesticide aerial spraying and truck fogging that results
in “pesticide residue and excess pesticide” being discharged
into the waters of the United States. Id. at 940.
10046 SAINT JOHN’S v. GEM COUNTY MOSQUITO
[6] Dill did not succeed in obtaining the precise legal ruling
and relief that he sought in his complaint. Perhaps if he had
had enough money, he could have continued his suit and
joined in the multidistrict litigation that culminated in the
Sixth Circuit’s decision in National Cotton Council. But he
settled instead. In practical terms, the remedy Dill achieved in
the Settlement Agreement was an important part of what he
sought in his suit under the CWA. In his complaint, Dill asked
for an injunction against unpermitted discharges of all pesti-
cides (not limited to adulticides) into specified waters of the
United States. In his judicially enforceable Agreement, Dill
got the equivalent of an injunction against discharges of adul-
ticides into those waters. That is, GCMAD entered into a judi-
cially enforceable Agreement not to engage in any aerial
spraying of adulticides except in a declared health emergency,
and not to engage in any truck fogging within either 300 or
150 yards of specifically described waterways, including the
Payette River.
[7] The relief achieved by Dill in the Agreement clearly
promoted the goals of the CWA. “The purpose of an award
of costs and fees is . . . to encourage the achievement of statu-
tory goals.” Ruckelshaus v. Sierra Club, 463 U.S. 680, 706
(1983); see also Tex. State Teachers, 489 U.S. at 793 (holding
that a prevailing party alters the legal relationship between the
parties “in a manner which Congress sought to promote in the
fee statute”). The goal of the CWA is “to restore and maintain
the chemical, physical, and biological integrity of the Nation’s
waters” by eliminating pollution. 33 U.S.C. § 1251(a). The
CWA achieves this goal by forbidding or minimizing pollu-
tion through the NPDES permitting process. Dill achieved
this goal by forbidding or minimizing adulticide pollution
directly through the Settlement Agreement.
Based on the EPA’s construction of the CWA in its then-
interim guidance under which GCMAD was not required to
obtain a NPDES permit, the district court concluded that
Dill’s relief did not promote the goals of the CWA. However,
SAINT JOHN’S v. GEM COUNTY MOSQUITO 10047
the interim guidance (later, the formal regulation) on which
EPA relied has now been held invalid in National Cotton
Council as inconsistent with the CWA, in a decision rendered
after the district court ruled on Dill’s application for attor-
ney’s fees. The Sixth Circuit’s decision in that case vindicates
Dill’s litigation position that GCMAD’s actions violated the
CWA, and shows that the terms of the Agreement reducing
discharges of pesticides into the waters of the United States
serve the goal of the CWA.
[8] We therefore hold that the Agreement meets the three
conditions necessary to make Dill a prevailing party.
B. “Appropriate”
[9] Section 1365(d) provides that the district court may
award attorney’s fees to a prevailing party “whenever the
court determines such award is appropriate.” 33 U.S.C.
§ 1365(d). The district court held that even if Dill were a pre-
vailing party, an award of attorney’s fees was not “appropri-
ate” in the circumstances of this case. We have not previously
articulated the standard under which a court may determine if
a fee award to a prevailing plaintiff under the CWA is “appro-
priate,” and the district court necessarily was left on its own
to determine the proper standard. We take the opportunity
today to articulate that standard, and we remand to the district
court for application of the standard in the first instance.
Our sister circuits have not agreed on a uniform standard
for determining appropriateness for a prevailing plaintiff
under § 1365(d). The First Circuit has stated that district
courts have “wide discretion” to determine the appropriate-
ness of fees under the CWA, but it has not articulated a stan-
dard to guide the exercise of this discretion. United States v.
Comunidades Unidas Contra la Contaminacion, 204 F.3d
275, 283 (1st Cir. 2000). The Third Circuit has effectively
read “appropriate” out of the statute, holding that the CWA
“places no restriction on the award other than that the party
10048 SAINT JOHN’S v. GEM COUNTY MOSQUITO
entitled to the award be ‘prevailing or substantially prevail-
ing.’ ” Penn. Envtl. Def. Found. v. Canon-McMillan Sch.
Dist., 152 F.3d 228, 231 (3d Cir. 1998). The Fourth and Fifth
Circuits have held that fees are appropriate whenever a pre-
vailing party’s suit has served the public interest or advanced
the goals of the statute. Chem. Mfrs. Ass’n v. EPA, 885 F.2d
1276, 1279 (5th Cir. 1989) (finding that an award is usually
“appropriate” when a party has advanced the goals of the stat-
ute invoked in the litigation); Stoddard v. W. Carolina Reg’l
Sewer Auth., 784 F.2d 1200, 1209 (4th Cir. 1986) (finding
that plaintiffs were entitled to fees because they have “served
the public interest”). The Eleventh Circuit has held that “good
cause” is needed to deny attorney’s fees to a prevailing party.
Atl. States Legal Found., Inc. v. Tyson Foods, Inc., 897 F.2d
1128, 1142-43 (11th Cir. 1990).
[10] For the reasons that follow, we do not adopt any of
these standards, and instead hold that the “special circum-
stances” standard first elaborated in Newman v. Piggie Park
Enterprises, Inc., 390 U.S. 400 (1968), is the proper standard
for determining whether an award of attorney’s fees to a pre-
vailing plaintiff is “appropriate” under § 1365(d).
[11] In Piggie Park, the Supreme Court considered a
request for attorney’s fees under Title II of the Civil Rights
Act of 1964. It held that “one who succeeds in obtaining an
injunction under [Title II] should ordinarily recover an attor-
ney’s fee unless special circumstances would render such an
award unjust.” Id. at 402 (emphasis added). The Court rea-
soned:
When a plaintiff brings an action under that Title, he
cannot recover damages. If he obtains an injunction,
he does so not for himself alone but also as a “pri-
vate attorney general,” vindicating a policy that Con-
gress considered of the highest priority. If successful
plaintiffs were routinely forced to bear their own
attorneys’ fees, few aggrieved parties would be in a
SAINT JOHN’S v. GEM COUNTY MOSQUITO 10049
position to advance the public interest by invoking
the injunctive powers of the federal courts. Congress
therefore enacted the provision for counsel fees —
not simply to penalize litigants who deliberately
advance arguments they know to be untenable but,
more broadly, to encourage individuals injured by
racial discrimination to seek judicial relief under
Title II.
Id. at 402. We have interpreted the “special circumstances”
standard of Piggie Park quite strictly, such that fee awards
“should be the rule rather than the exception.” Ackerley
Commc’ns, Inc. v. City of Salem, 752 F.2d 1394, 1396 (9th
Cir. 1985) (internal quotation marks omitted).
[12] We have applied the Piggie Park “special circum-
stances” standard in a variety of statutes. We have necessarily
applied it to all successful civil rights plaintiffs under 42
U.S.C. § 1988. See, e.g., Gilbrook v. City of Westminster, 177
F.3d 839, 878 (9th Cir. 1999). And we have applied it, as has
the Supreme Court, to other statutes in which a successful
plaintiff has served the public interest. See, e.g., Christians-
burg Garment Co. v. EEOC, 434 U.S. 412, 417 (1978) (Title
VII); Northcross v. Bd. of Educ., 412 U.S. 427, 428 (1973)
(Emergency School Aid Act, 20 U.S.C. § 1617); Smith v.
CMTA-IAM Pension Trust, 746 F.2d 587, 589 (9th Cir. 1984)
(ERISA); Seattle Sch. Dist. No. 1 v. Washington, 633 F.2d
1338, 1348 (9th Cir. 1980) (20 U.S.C. § 3205, relating to
school desegregation cases); Hannon v. Sec. Nat’l Bank, 537
F.2d 327, 328 (9th Cir. 1976) (Truth in Lending Act).
In Pennsylvania v. Delaware Valley Citizens’ Council for
Clean Air (“Delaware Valley”), 478 U.S. 546 (1986), the
Supreme Court interpreted § 304(d) of the Clean Air Act
(“CAA”), which authorizes an award of attorney’s fees to a
successful party. The Court interpreted § 304(d) in the same
manner as § 1988, writing, “Given the common purpose of
both § 304(d) and § 1988 to promote citizen enforcement of
10050 SAINT JOHN’S v. GEM COUNTY MOSQUITO
important federal policies, we find no reason not to interpret
both provisions governing attorney’s fees in the same man-
ner.” 478 U.S. at 560. The language of § 304(d) of the CAA
is essentially the same as § 1365(d), the attorney’s fees provi-
sion of the CWA before us today. 42 U.S.C. § 7604(d) (pro-
viding that district court “may award costs of litigation
(including reasonable attorney and expert witness fees) to any
party, whenever the court determines such award is appropri-
ate”). The only difference is the absence of any “prevailing
party” language in § 304(d), but the Supreme Court has read
“prevailing party” into § 304(d) and other attorney’s fees pro-
visions in environmental statutes. See Pennsylvania v. Del.
Valley Citizens’ Council for Clean Air (“Delaware Valley
II”), 483 U.S. 711, 713 (1987); Ruckelshaus, 463 U.S. at 682
n.1.
In Marbled Murrelet v. Babbitt, 182 F.3d 1091 (9th Cir.
1999), we applied Delaware Valley to the attorney’s fees pro-
vision of the Endangered Species Act (“ESA”). Citing Dela-
ware Valley, we wrote that “attorney’s fees provisions in
environmental statutes with similar language and purpose as
the attorney’s fees provision in the Civil Rights Acts should
be interpreted in the same way.” Id. at 1095; see also Ruckel-
shaus, 463 U.S. at 691 (“[S]imilar attorney’s fee provisions
should be interpreted pari passu.”). We concluded, “Given
the similarity in language and purpose between the attorney’s
fees provisions of the Civil Rights Act and the ESA, Dela-
ware Valley mandates that we apply to the ESA the civil
rights standard for awarding fees to prevailing [parties].”
Marbled Murrelet, 182 F.3d at 1095. Like § 304(d) of the
CAA, the attorney’s fees provision of the ESA is essentially
the same as § 1365(d) of the CWA. 16 U.S.C. § 1540(g)(4)
(providing that district court “may award costs of litigation
(including reasonable attorney and expert witness fees) to any
party, whenever the court determines such award is appropri-
ate”); Ruckelshaus, 463 U.S. at 682 n.1; Marbled Murrelet,
182 F.3d at 1095.
SAINT JOHN’S v. GEM COUNTY MOSQUITO 10051
[13] The CAA (at issue in Delaware Valley), the ESA (at
issue in Marbled Murrelet), and the CWA (at issue in this
case) are all broad public interest statutes that authorize citi-
zen suits to enforce their substantive provisions. Moreover,
the language in the attorney’s fees provisions in each of the
three statutes is in all relevant ways identical. We interpret
§ 1365(d) the same way the Supreme Court interpreted
§ 304(d) of the CAA in Delaware Valley and the same way
we interpreted § 1365(d) of the ESA in Marbled Murrelet.
We therefore conclude, following Piggie Park and its prog-
eny, that the word “appropriate” in § 1365(d) means the same
thing it does in § 1988 and the other civil rights statutes with
respect to an award of attorney’s fees to a prevailing plaintiff.
We note that our conclusion accords with the highly persua-
sive analysis of a district court in our circuit that, more than
twenty-five years ago, applied the Piggie Park standard to a
request for attorney’s fees by a prevailing plaintiff under the
CWA. Nw. Indian Cemetery Protective Ass’n v. Peterson, 589
F. Supp. 921, 927 (N.D. Cal. 1983) (Weigel, J.).
[14] We hold that the district court may deny attorney’s
fees to a prevailing plaintiff under § 1365(d) only where there
are “special circumstances.”1 Under this standard, “the court’s
discretion to deny a fee award to a prevailing plaintiff is nar-
row,” N.Y. Gaslight Club, Inc. v. Carey, 447 U.S. 54, 68
(1980), and a denial of fees on the basis of “special circum-
stances” is “extremely rare.” Borunda v. Richmond, 885 F.2d
1384, 1392 (9th Cir. 1988) (internal quotation marks and cita-
1
Our holding today is limited to the standard under which attorney’s
fees should be awarded to a prevailing plaintiff under the CWA. In Mar-
bled Murrelet, we held that a prevailing defendant is entitled to fees under
the ESA only if the plaintiff ’s lawsuit is frivolous under the standard
established in Christiansburg Garment Co., 434 U.S. 412, 421 (1978).
Marbled Murrelet, 182 F.2d at 1095-96. The question of when it is “ap-
propriate” to award fees under the CWA to a prevailing defendant is not
before us today, but we see no reason why the standard from Christian-
burg, applied to the ESA in Marbled Murrelet, would not apply equally
to the CWA as well.
10052 SAINT JOHN’S v. GEM COUNTY MOSQUITO
tions omitted). A defendant’s good faith belief that it was fol-
lowing the law does not qualify as a “special circumstance.”
Teitelbaum v. Sorenson, 648 F.2d 1248, 1250-51 (9th Cir.
1981).
[15] The district court has not had the opportunity to apply
this standard to this litigation. We therefore remand to that
court for a determination, under this standard, whether an
award of attorney’s fees is “appropriate” within the meaning
of § 1365(d).
IV. D.C. District Court Suit
Because the district court did not award attorney’s fees to
Dill, it did not decide whether attorney’s fees should have
been awarded not only for the work done in connection with
the suit in the Idaho district court, but also for the work done
in connection with the suit in the D.C. district court. There-
fore, we remand to the district court to allow it to address that
question in the first instance.
Conclusion
We hold that Dill is a prevailing party under § 1365(d). We
remand to the district court to allow it to determine whether
an award to Dill, as a prevailing party, is appropriate under
§ 1365(d). We also remand to the district court to allow it to
determine whether attorney’s fees are recoverable for work
done in connection with the suit in the D.C. district court.
REVERSED and REMANDED. Costs on appeal to Dill.
TALLMAN, Circuit Judge, Concurring:
I write separately for two reasons. First, we do not today
determine whether the facts of this case constitute the requi-
SAINT JOHN’S v. GEM COUNTY MOSQUITO 10053
site “special circumstances.” This question remains in the dis-
cretion of the district judge on remand. As we have explained,
we employ “a two-pronged test to determine whether special
circumstances exist to justify denying attorney’s fees.” Am.
Broad. Co. v. Miller, 550 F.3d 786, 788 (9th Cir. 2008) (per
curiam). This test requires a showing whether (1) “awarding
the attorney’s fees would further the purposes” of the statute,
and (2) “the balance of equities favors or disfavors the denial
of fees.” Id. (citing Mendez v. County of San Bernardino, 540
F.3d 1109, 1126 (9th Cir. 2008); Bauer v. Sampson, 261 F.3d
775, 785-86 (9th Cir. 2001); Gilbrook v. City of Westminster,
177 F.3d 839, 878 (9th Cir. 1999)). It is important that the dis-
trict judge make findings of fact and conclusions of law show-
ing what special circumstances exist in the case, and I
emphasize that the standard of review for an award under this
doctrine remains the traditional abuse of discretion standard.
See id.; Jankey v. Poop Deck, 537 F.3d 1122, 1129 (9th Cir.
2008).
Second, the policy implications of today’s holding concern
me. Courts should not be interpreting attorney’s fee require-
ments in such a way as to discourage settlement. If today’s
holding is read too literally, I believe there is a disincentive
for parties in environmental litigation to negotiate a settle-
ment.
Gem County was following the EPA’s policy that no
NPDES permit was required to apply pesticides in a manner
consistent with the Federal Insecticide, Fungicide, and Roden-
ticide Act (“FIFRA”), 7 U.S.C. §§ 136-136y. Gem County’s
abatement procedures complied with FIFRA, allowing it to
spray for mosquitos potentially carrying the West Nile Virus
and other diseases. Yet, Gem County still attempted to
address Dill’s concerns regarding the effects on St. John’s
Organic Farm from these abatement methods. As the district
court noted, this is not a case where the defendant was
required to possess a permit and blatantly failed to comply.
Instead, Gem County was caught in a fight between the agen-
10054 SAINT JOHN’S v. GEM COUNTY MOSQUITO
cy’s policy and Dill’s concerns while combating a public
health risk. It made the prudent decision to terminate litigation
by entering into a settlement agreement to cease its defense of
the EPA policy. Continuing in court would have drained the
limited resources of both parties, and it was still necessary for
Gem County to continue its abatement efforts to reduce mos-
quito populations.
If our opinion leads ineluctably to the conclusion that no
special circumstances can be established under this set of
facts, I am not sure why a defendant would not “roll the dice”
before a potentially sympathetic jury. This unfortunate result
would deter otherwise desirable settlements to avoid costly
and uncertain trials. Only time will tell whether the guidance
we articulate in this opinion will truly further the congressio-
nal aims behind the Clean Water Act’s citizen attorney gen-
eral provision. Congress is, of course, always free to clarify
when attorney’s fees may appropriately be assessed in these
types of cases.