Federal Historic Preservation Case Law, 1966-1996

VII. Attorneys' Fees and Costs in Preservation Cases

Prior to 1980, NHPA did not provide for the award of attorneys' fees or costs. Without this explicit statutory authority, plaintiffs' ability to obtain fees and costs was limited. One court held that attorneys' fees and costs would be allowed in NHPA actions only in cases of bad faith or when there would be a "benefit to a limited class of special beneficiaries against whom the award is taxed." {270}

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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