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SIERRA CLUB v. MULLEN

October 4, 1985

SIERRA CLUB, et al., Plaintiffs
v.
FRANCIS M. MULLEN, JR., ACTING ADMINISTRATOR, DRUG ENFORCEMENT ADMINISTRATION, et al., Defendants; THE NATIONAL ORGANIZATION FOR THE REFORM OF MARIJUANA LAWS (NORML), Plaintiff v. UNITED STATES DRUG ENFORCEMENT ADMINISTRATION (DEA), et al., Defendants



The opinion of the court was delivered by: GREEN

The above-styled action is before the Court on plaintiff National Organization for the Reform of Marijuana Laws's ("NORML") application for attorneys' fees and costs, pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, defendant United States Drug Enforcement Administration's ("DEA") opposition thereto, NORML's reply to DEA's opposition, DEA's supplemental memorandum in opposition to NORML's fee petition, and the entire record herein. For the reasons set forth below, the Court awards NORML $8,767.55 in attorneys' fees and costs.

 Statement of Facts

 In August 1983, DEA used paraquat to eradicate marijuana in the Chattahoochee National Forest in Georgia and in the Daniel Boone National Forest in Kentucky. On September 1, 1983, the Sierra Club, the National Coalition Against the Misuse of Pesticides, and the Friends of the Earth (hereafter collectively "Sierra Club") filed a complaint (Civil Action No. 83-2592) and motion for temporary restraining order, challenging DEA's use of paraquat to eradicate marijuana on public lands.

 Sierra Club claimed: (1) that a nationwide program of aerial spraying of paraquat to eradicate marijuana on public lands is a major federal action significantly affecting the quality of the environment and that DEA violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., by failing to prepare an environmental impact statement ("EIS") on such eradication, Sierra Club Complaint paras. 2, 25-31; and (2) that use of paraquat on undeveloped, federal lands and other areas of wildlife habitat is not consistent with the currently approved paraquat label and, therefore, violates the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136 et seq. Sierra Club Complaint paras. 2, 32-35. Sierra Club requested the Court to enjoin defendants from "the aerial application of paraquat on public lands for the eradication of marijuana" until they prepare an EIS and to "enjoin defendants from using paraquat in a manner inconsistent with its label, including the aerial application of paraquat on all Forest Service and public lands and other areas of wildlife habitat." Sierra Club Complaint para. 36.

 NORML sought declaratory and injunctive relief, $10 million compensatory damages, and $20 million punitive damages. NORML Complaint at 21. NORML sought a Court order instructing defendants to prepare an EIS on "the herbicide spraying program in the United States" and to enjoin defendants "from obligating or expending any funds, or providing any other support or assistance to the herbicide spraying program in the United States against marijuana plants." NORML proposed temporary restraining order; NORML Complaint at 21.

 Following briefing and argument, on September 13, 1983, this Court entered a temporary restraining order reciting that it appears that aerial spraying of paraquat on public lands by defendants violates the EIS requirement of NEPA and the use restrictions of FIFRA. *fn1" The Court enjoined defendants "from further aerial spraying of paraquat on U.S. federal lands until further hearing in this case can be had."

 On September 14, 1983, defendants informed plaintiffs that they would not use paraquat to eradicate marijuana on U.S. federal lands unless and until defendants prepare an EIS on such a program. In light of that development, defendants moved on September 23, 1983, to stay further proceedings in this case until defendants prepared an EIS and filed it with the Court. Sierra Club and NORML opposed defendants' motion.

 NORML filed an amended complaint on October 4, 1983. NORML deleted claims regarding constitutional and civil rights violations and common law torts, and added a claim under FIFRA. Amended Complaint paras. 49-51. NORML also dropped its claims for compensatory and punitive damages. Amended Complaint at 19-20.

 Upon stipulation of the parties, on November 8, 1983, this Court signed a consent judgment. The consent judgment prohibits the defendants from using, or authorizing the use of, "paraquat to eradicate on U.S. federal lands unless and until defendants prepare an [EIS] on such use in compliance with the [NEPA] and regulations of the Council on Environmental Quality." Consent Judgment para. 1. Second, defendants agreed not to "use or authorize the use of, paraquat to eradicate marijuana on U.S. federal lands under the paraquat label currently registered with the Environmental Protection Agency pursuant to [FIFRA]. . . ." Consent Judgment para. 2.

 As provided in the consent judgment, Consent Judgment para. 5, and in compliance with the EAJA, 28 U.S.C. § 2412(d)(1)(B), Sierra Club and NORML submitted applications for attorneys' fees and costs. Sierra Club subsequently settled with the defendants and is no longer a party to this action. NORML requests a sum of $35,512.12, which includes court costs and expenses.

 
The EAJA provides in relevant part: Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

 28 U.S.C. 2412(d)(1)(A).

 I. NORML Is a Prevailing Party

 The EAJA authorizes an award of attorneys' fees only to a "prevailing party." 28 U.S.C. § 2412(d)(1)(A). To qualify as a prevailing party, NORML must prevail on some significant issue in the case "which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978); see also Environmental Defense Fund, Inc. v. E.P.A., 230 U.S. App. D.C. 264, 716 F.2d 915, 919 n.7 (D.C. Cir. 1983) ...


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