Case 82

National Trust for Historic Preservation v. United States Army Corps of Engineers, 552 F. Supp. 784 (S.D. Ohio 1982), fees awarded, 570 F. Supp. 465 (S.D. Ohio 1983).

Plaintiffs sought to enjoin the proposed construction of a barge-loading facility to be built near the historic Anderson Ferry on the Ohio River at Cincinnati, Ohio. They alleged that the Army Corps of Engineers had issued a permit to the landowner in violation of Section 106 of the National Historic Preservation Act (NHPA).

The landowner first applied to the Corps in 1980 for a permit to build and maintain the facility. Although the Corps knew that the ferry was under consideration for inclusion in the National Register of Historic Places and the Corps had been requested by the State Historic Preservation Officer (SHPO) to comply with Section 106, the Corps waited until September 1981 to approach the Advisory Council on Historic Preservation as required by the Council's regulations implementing Section 106 of NHPA.

At that time, the Corps provided the Council with a preliminary case report stating that the Council's criteria of adverse effect were applicable. The Corps requested the Council's comments and thus initiated the Section 106 consultation process. Shortly after, the Council conducted an onsite inspection.

During this time, the Corps prepared several documents under other authorities in which it stated that the barge permit would have no adverse effect on the ferry, although the Corps did not otherwise notify the Council of any change in its determination of effect. The Council then prepared a proposed Memorandum of Agreement (MOA).

Before the Section 106 process was finished, the Corps issued the permit without notifying the Council and refused to rescind it so that the Council's process could be completed. The lawsuit resulted, and during its pendency the parties reopened the consultation but were unable to agree on the terms of an MOA. Consequently, the matter was heard at a meeting of the full Council. After hearing testimony, the Council concluded that by issuing the permit, the Corps had foreclosed the Council's opportunity to comment. The Council then declined to comment until the Corps withdrew the permit.

In considering cross-motions for summary judgment, the court found the Corps to be in violation of NHPA. The court first rejected the Corps' argument that the preliminary case report constituted a determination of no adverse effect because the report had concluded that the adverse effect on the ferry would be minimal. The Council's regulations provide for submission of the preliminary case report only in instances of adverse effect, and the Corps' report followed the format required by the regulations. Moreover, Section 106 consultation is required if there is an adverse effect, however minimal. 552 F. Supp. at 789-90.

Second, the court found that the fact that the Corps had provided the Council with documents generated under other laws stating that the permit would have no adverse effect was not sufficient notice to the Council that the Corps had reversed its position and made a determination of no adverse effect. Id. at 790.

Once the Corps initiated the Section 106 consultation, Section 800.4(e) of the Council's regulations prohibited the Corps from taking any action on the matter until the Council issued its comments. The Corps was in violation of its statutory duty under Section 106 when it issued the permit before the Council had provided its comments. Id. at 790. That the Corps waited five months between submitting its preliminary case report and issuing the permit was not the "reasonable opportunity to comment" required by Section 106. The court deferred to the Council's determination that the Corps had foreclosed the Council's opportunity to comment. Id. at 791.

The court enjoined the defendants from proceeding with the barge-loading facility or from proceeding with any similar project in the future without full compliance with Section 106 and the Council's regulations. Id.

Plaintiffs then sought attorneys' fees under Section 305 of NHPA. The court held that the test for fees under NHPA is not the reasonableness of the losing party's position but rather whether the party seeking the award substantially prevailed. Once a court finds that the party substantially prevailed, it must award reasonable attorneys' fees. 570 F. Supp. at 465.

Finding that plaintiffs had substantially prevailed in the action, the court awarded fees and costs. Id. at 474. To determine reasonable attorneys' fees, the court applied the standard that had been used in previous cases brought under the Civil Rights Attorneys' Fees Act. The court must make an award that is adequate to attract competent counsel to cases in which damages may be small or nonexistent but that does not constitute a windfall to the attorneys. Id. at 469. When the plaintiff has obtained an "excellent result," the attorney should recover fees for hours spent based on a reasonable rate of compensation for attorneys of similar qualifications. Id. at 468. The court may deduct a percentage of the hours claimed if it indicates its reasons for the deduction and may make an upward adjustment when the routine hourly rate would not otherwise be reasonable, particularly in cases of exceptional success. Id. at 469.

Section 305 of NHPA allows the award of fees not only for attorneys but also for law clerks, paralegals, and other professionals. Thus, the court allowed fees for the services of a city planner. Id. The court also allowed plaintiffs to recover fees for time spent preparing for and participating in the Council's meeting. Id. at 470.

The court found that each of the several attorneys representing plaintiffs had provided different strengths, and so each could be compensated. Nevertheless, the court reduced the number of hours claimed because of duplication of effort. Id. at 470-71. The court determined a reasonable hourly rate, awarding it to both the private attorneys and the one institutional attorney from the National Trust for Historic Preservation, an organization funded in part by the Federal Government. Id. at 471-72.

Next, the court awarded an upward adjustment of 25 percent because the result obtained was excellent and there had been a substantial risk that plaintiffs would not prevail. Id. at 473.

Finally, using a reasonableness standard, the court awarded costs for incidental expenses that were necessary in furnishing effective and competent representation and could properly be billed to a fee-paying client. These costs included photocopying, travel, telephone, and paralegal and expert witness expenses. Id. at 473-74.

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