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Alaskan City Not Done Paying in Pollution Case

(CN) - Two environmental nonprofits can get attorneys' fees for holding the city of Seward, Alaska, liable under the Clean Water Act for discharging toxic pollutants into Resurrection Bay, the 9th Circuit ruled Thursday.

Resurrection Bay Conservation Alliance and Alaska Community Action on Toxics sued the city in 2006, complaining that the Seward Small Boat Harbor and the Marine Industrial Center boat-repair yard was discharging pollutants without a National Pollution Discharge Elimination System permit.

A federal judge granted the groups partial summary judgment, ordering Seward to apply for the permit but declining to impose civil penalties. The judge also directed each party to bear its own fees and costs.

Following a motion to amend the judgment, the judge imposed a penalty of just $1 and again closed the book on the $124,300 demanded for litigation costs.

On appeal, the federal appeals court sitting in Anchorage, Alaska, found that the nonprofits are, in fact, entitled to the requested in fees under a special circumstances provision.

"Although the city has not taken a position on the reasonableness of the amount of fees requested and, instead, has taken an 'all or nothing' approach to a fee award, we conclude that the district court should determine the reasonableness of the fees requested in the first instance," Judge Arthur Alarcon wrote for a three-judge panel. "Because we have determined that an award of reasonable attorney fees is warranted, we encourage the parties to consider mediation to avoid incurring additional attorney fees in this protracted litigation."

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