The district court refused to award attorney fees under 42 USC 1988. The panel reversed. It held that qualified immunity and custom or practice immunity were part of the reason 1988 was enacted and thus supported the award of fees not the denial of fees. It also held that Lefemine obtained significant relief in the form of an injunction and declaratory judgment. Thus, none of the grounds identified by the district court were special circumstances which would justify denying the attorney fee award. The case was remanded for consideration of Lefimine’s fee application.
Stewards sued A & G alleging violations of the Clean Water Act by discharging a pollutant not disclosed during the permitting process. A & G pled its permit as a shield tot eh claim under 33 UASC 1542. The district court granted summary judgment to Stewards and the panel affirmed. It held that the shield defense failed because A & G did not disclose the presence or absence of the pollutant in question as required by Virginia regulations. The panel also noted that A & G’s alternative argument was inconsistent as it asked the court to infer disclosure from its application for another mine in the same watershed as that knowledge would trigger the duty to disclose and A & G did not disclose.