The Eleventh Circuit Court of Appeals has denied a claim for attorney’s fees sought by the Miccosukee Tribe of Indians of Florida in a lawsuit involving Lake Okeechobee, ruling that the tribe was not a “prevailing party.” Friends of the Everglades v. S. Fla. Water Mgmt. Dist., No. 11-15053 (11th Cir. 4/30/12).  

The tribe and two environmental groups sued the South Florida Water Management District under the Clean Water Act (CW A) seeking to enjoin the district from pumping polluted canal water into Lake Okeechobee. The district court ruled for plaintiffs and issued an injunction requiring the water district to apply for a National Pollution Discharge Elimination System (NPDES ) permit. On appeal, the Eleventh Circuit reversed, deferring to a recently enacted EPA regulation that did not require a permit under the circumstances. The U.S. Supreme Court declined to hear plaintiffs’ appeal.  

While the case was pending on appeal, the tribe moved for attorney’s fees and costs of more than $1.4 million, asserting that, as the prevailing party, it was entitled to fees under the CW A, 33 U.S.C. § 1365(d), which allows a court to award attorney’s fees and costs to “any prevailing or substantially prevailing party, wherever the court determines that such an award is appropriate.” The district court denied the motion, finding that the tribe was not the prevailing party. The tribe appealed, arguing that it was the prevailing party because it obtained some form of relief—an injunction and the issuance of new EPA rules.  

The appeals court affirmed the district court, ruling that the tribe did not ultimately receive the result it sought, i.e., an injunction. Moreover, said the court, the new EPA rules were contrary to the tribe’s position.