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| CASE LAW UPDATE DETAILS | Date Printed: 5/19/2021 |
| Case Title | Case No. | |
| Sierra Club v. North Carolina DOT | 2018 WL 4955200, 2019 WL 332795 | |
| Court | State | Date |
| U.S. District Court - North Carolina | North Carolina | 1/25/2019 |
| Project |
| U.S. 70 Havelock Bypass |
| Project Type |
| Highway |
| Project Description |
| The U.S. 70 Bypass would be a divided, four-lane, controlled-access highway southwest of Havelock, North Carolina. The bypass would travel through Croatan National Forest, which includes habitat for the red-cockaded woodpecker, an endangered species. FHWA and the North Carolina Department of Transportation (NCDOT) published a draft EIS in 2011. The agencies also prepared a biological assessment, which concluded that the project “may affect, but is not likely to adversely affect,” the red cockaded woodpecker; the U.S. Fish and Wildlife Service (FWS) concurred with this determination in 2013. In its concurrence letter, FWS stated that its determination was based, in part, on NCDOT’s agreement to allow periodic closures of the bypass for prescribed burns, which are an important habitat management technique. The agencies published the final EIS in 2015, and FHWA then issued a ROD approving the project. |
| Case Summary |
| The plaintiff filed a lawsuit alleging violations of NEPA, Section 4(f), and the Endangered Species Act (ESA). In 2018, the parties entered into a settlement agreement to resolve all claims. As part of the settlement agreement, NCDOT agreed to close the bypass for prescribed burns when requested by the U.S. Forest Service. NCDOT also agreed to give $7.3 million for land preservation and a revolving loan fund. Although the settlement agreement did not impose any requirements on the federal agency defendants (FHWA and FWS), FHWA, FWS, and the Forest Service issued three letters to facilitate the settlement. The letters memorialized that (1) FHWA would revise or supplement the biological assessment if prescribed burns did not occur as provided in the recovery plan for the red cockaded woodpecker, and (2) FHWA would re-evaluate environmental impacts if certain new information or circumstances arise. Following the settlement agreement, the plaintiff filed a motion for attorneys’ fees under the ESA. The court ruled that the federal agency defendants were liable for a portion of the plaintiff’s attorneys’ fees. |
| Key Holdings | ||
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Attorneys’ Fees Entitlement to Fees. Under the ESA, a court may award costs of litigation (including reasonable attorneys’ fees) to any party “whenever the court determines such award is appropriate.” The court explained that when a party obtains substantial relief in a settlement before a lawsuit is adjudicated on the merits, awarding attorneys’ fees is appropriate when (1) the party obtains some of the benefit sought, (2) its claims were not frivolous, and (3) its actions caused the benefit obtained. Here, it was undisputed that the plaintiff’s claims were not frivolous and that its actions caused NCDOT to enter into the settlement agreement and caused the federal agencies to issue their letters; the issue the court resolved was whether the plaintiff obtained some of the benefit that it sought. The court determined that it did. The court explained that the plaintiff brought the lawsuit to enforce the ESA, and the settlement agreement promoted the purposes of the ESA because it required NCDOT to transfer money and take actions for preservation of the red cockaded woodpecker and its habitat. Federal Defendants’ Responsibility for Fees. The court held that the federal agency defendants (FHWA and FWS) were responsible for 20% of the plaintiff’s attorneys’ fees. The court explained that this reduction was warranted because although the settlement agreement (which was signed by the plaintiff and NCDOT) comprised the bulk of relief the plaintiff obtained, the federal agencies’ letters also conferred some benefits, albeit more limited, by setting forth new commitments that facilitated the settlement agreement. NCDOT’s Responsibility for Fees. The court held that NCDOT was not responsible for any of the plaintiff’s attorneys’ fees because the plaintiff did not allege any ESA violations by NCDOT (its complaint alleged that NCDOT violated only NEPA and Section 4(f)). Reasonableness of Fees. The court ruled on the reasonableness of several categories of the plaintiff’s requested fees, including: -- The plaintiff could be compensated for reviewing public records obtained pursuant to a Freedom of Information Act request, because doing so was “a necessary aspect of due diligence in assessing the completeness of the administrative record.” -- The fee award was not reduced to account for the plaintiff’s likelihood of success on the merits, because the settlement agreement provided substantial relief to the plaintiff. -- The plaintiff was entitled to fees for work addressing the Forest Service’s prescribed burning because this issue was raised in its complaint. |
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