The lawyers for the Native American tribes and associations that participated in a challenge of rules controlling mercury emissions from power plants are entitled to legal fees and costs for participating in the litigation, a divided appeals court in Washington said today.
The U.S. Court of Appeals for the D.C. Circuit said in a 2-1 ruling that the tribes, which intervened in the litigation on behalf of more than a dozen states, are entitled to collect fees.
But the court declined to weigh in on an appropriate amount. Lawyers for the tribes, represented by Ann Arbor, Michigan’s Kanji & Katzen, are seeking more than $305,000 in fees and costs. Click here here for the fee petition.
The U.S. Environmental Protection Agency said the tribal intervenors are ineligible for fees, saying that the participation in the case did not influence the outcome of the litigation.
Justice Department lawyers, including Matthew Oakes of the Environment and Natural Resources Division, argued in court papers that Congress did not intend to allow intervenors to receive legal fees as nearly automatic as it is for a prevailing plaintiff in certain types of cases.
Legal claims that the tribes raised about treaty rights remain unresolved, the Justice Department said. DOJ lawyers also argued that the tribes’ fee demand is exorbitant. The government said the appeals court should reduce any fee to about $65,000.
Lawyers for the tribal groups urged the D.C. Circuit to award legal fees “for this costly and time-consuming litigation that was unfortunately rendered necessary by the EPA’s intransigence and disregard of its own fundamental obligations.”
Writing for the majority, Judge David Tatel, joined by Judge Judith Rogers, said the tribal groups contributed to the implementation of the Clean Air Act and otherwise served the public interest.
“EPA‘s view, embraced by the dissent—that we should allow fee shifting only where an intervenor affected the outcome of a case as determined after the fact—would discourage interventions that play a useful role,” Tatel said in the court’s ruling.
Judge Janice Rogers Brown voted to block the fee petition. Brown said she was concerned about encouraging fee-seeking interventions. She described as “few and frail” the tools the courts have to prevent individuals and groups from jumping into a case to get legal fees.
“[I]f parties want to pile on just for the sake of piling on—to pursue some frolic of their own—why would it be inappropriate to require them to pay the costs of that indulgence?” Brown wrote.
Brown said that “since preserving the public fisc from unreasonable depredations also serves the public interest, I would not be so eager to find new ways to waste Other People’s Money.”
Tatel and Rogers sent the fee dispute to the court’s appellate mediation program to determine an amount the lawyers for the tribal groups should receive.