In 1980, Congress added Section 305 to NHPA authorizing the award of attorneys' fees and costs to any person who "substantially prevails" in any civil action to enforce the act. {271} Since then, there have been several decisions on attorneys' fees and costs. In one case, plaintiffs were successful in their suit to require the Department of Housing and Urban Development to comply with Section 106. Although the Federal agency had completed its compliance just a few days before the enactment of Section 305, the court awarded fees, holding that retroactive application of Section 305 would not result in injustice. Responsibility for the fees was shared by the Federal and local agency defendants. {272}
In other cases litigated since 1980, courts have also awarded attorneys' fees
and costs. {273} In one early case, the court held
that fees must be adequate to attract counsel to cases in which damages may
be small, although the fees may not constitute a windfall. {274}
Even in cases resolved through consent decrees, an award of attorneys' fees
and costs is appropriate under NHPA. {275} Comparing
NHPA's provisions for attorneys' fees with that of other statutes, the court
determined that, when a case is not decided on the merits, courts must examine
two issues to determine if plaintiffs substantially prevailed: 1) whether plaintiffs
substantially received the relief sought; and 2) whether the lawsuit was a substantial
factor in attaining the relief. If the test is satisfied, the court may, at
its discretion, award attorneys' fees and costs, provided such an award furthers
the purpose of NHPA. {276} Indeed, one case held
that even plaintiffs who did not "win" were entitled to fees because the property
had been listed in the National Register as a result of their efforts. {277}
Finally, one early court decision also held that Section 305 is not limited
to legal services rendered in a district court; an appellate court may award
fees and costs for services in the appellate court. {278}
Section 305 has also been the basis for finding that NHPA permits a private
right of action. {279}
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