1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ECOLOGICAL RIGHTS FOUNDATION, Case No. 22-cv-01459-JST

8 Plaintiff,

ORDER DENYING MOTION FOR

9 v. ATTORNEY’S FEES AND COSTS

10 CITY OF EUREKA, Re: ECF No. 47 Defendant. 11

12 13 Before the Court is Defendant City of Eureka’s motion for attorney’s fees and costs. ECF 14 No. 47. The Court will deny the motion. 15 I. BACKGROUND 16 The City operates the Elk River Wastewater Treatment Plant (“WWTP”) under a Clean 17 Water Act (“CWA”) Permit issued by the California Regional Water Quality Control Board, 18 North Coast Region (“Regional Board”). Plaintiff Ecological Rights Foundation (“EcoRights”) 19 filed this action in March 2022, alleging that the City’s operation of the WWTP violated the CWA 20 Permit. ECF No. 1. The parties participated in mediation on September 2, 2022 and reached an 21 agreement in principle to resolve the action. ECF Nos. 34, 37. On November 17, 2022, the 22 parties filed a proposed consent decree, ECF No. 38, and on January 27, 2023, the Court entered 23 the consent decree as proposed. ECF No. 40. 24 On October 4, 2024, the City moved to modify the consent decree. ECF No. 42. The 25 Regional Board had issued the City a new National Pollutant Discharge Elimination System 26 (NPDES) Permit in October 2023, id. at 9, and the consent decree provided that

27 [i]f . . . the Regional Board . . . issues a new or reissued NPDES Permit City that are reflected in the requirements of this Consent Decree, this 1 Consent Decree will be modified to reflect those CWA requirements . . . . 2 ECF No. 40 ¶ 39. EcoRights opposed the motion, ECF No. 43, arguing that the 2023 NPDES 3 Permit had not yet “become[] final pursuant to applicable law.” The Court found that the Permit 4 was “final pursuant to applicable law” and granted the City’s motion to modify the consent decree. 5 ECF No. 46. The parties jointly proposed an amended consent decree, ECF No. 53, which the 6 Court then entered, ECF No. 58. 7 The City now moves for attorney’s fees and costs incurred in litigating the motion to 8 modify the consent decree. ECF No. 47. EcoRights opposes the motion, ECF No. 55, and the 9 City has filed a reply, ECF No. 59. The City also filed a supplemental declaration, ECF No. 60, to 10 which EcoRights objects, ECF No. 61. The Court took the motion under submission without a 11 hearing on May 21, 2025. 12

II. JURISDICTION

13 The Court has jurisdiction under 33 U.S.C. § 1365(a)(1) and 28 U.S.C. § 1331. 14

III. DISCUSSION

15 A. Standard for Attorney’s Fees Award Under 33 U.S.C. § 1365(d) 16 The parties disagree over the applicable legal standard. The consent decree provides that 17 “[t]he prevailing Party in any dispute [arising under the consent decree] shall be entitled to 18 attorneys’ fees and costs in accordance with the standard established by 33 U.S.C. § 1365(d).” 19 ECF No. 58 ¶ 65. 33 U.S.C. § 1365 authorizes citizen suits under the Clean Water Act (“CWA”). 20 Subsection (d) provides: “The court . . . may award costs of litigation (including reasonable 21 attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the 22 court determines such award is appropriate.” Id. 23 The Supreme Court has held that, for attorney’s fees awards under civil rights statutes, the 24 standard differs depending on whether the prevailing party is the plaintiff or defendant. 25 Christiansburg Garment Co. v. Equal Emp. Opportunity Comm’n, 434 U.S. 412, 423 (1978).1 A 26

27 1 This is because “the plaintiff is the chosen instrument of Congress to vindicate a policy that 1 prevailing plaintiff “should ordinarily recover an attorney’s fee unless special circumstances 2 would render such an award unjust.” Id. at 416–17. In contrast, “a plaintiff should not be 3 assessed his opponent’s attorney’s fees unless a court finds that his claim was frivolous, 4 unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” 5 Id. at 423. The Ninth Circuit has held that Christiansburg’s asymmetrical attorney’s fees standard 6 “is the proper standard for RCRA and CWA suits.” Razore v. Tulalip Tribes of Wash., 66 F.3d 7 236, 240 (9th Cir. 1995); see also Saint John’s Organic Farm v. Gem Cnty. Mosquito Abatement 8 Dist., 574 F.3d 1054, 1063 (9th Cir. 2009) (“the word ‘appropriate’ in § 1365(d) means the same 9 thing it does in § 1988 and the other civil rights statutes with respect to an award of attorney’s fees 10 to a prevailing plaintiff”). 11 The City claims in its reply that although the consent decree provides for fees to be 12 awarded “in accordance with the standard established by 33 U.S.C. § 1365(d),” ECF No. 58 ¶ 65, 13 the consent decree “does not say ‘and case law interpreting that section.’” ECF No. 59 at 8. Thus, 14 the City says, the Court should apply only the plain text of Section 1365(d) and determine whether 15 fees are “appropriate,” rather than applying the asymmetrical standard set forth in cases 16 interpreting and applying Section 1365(d). The Court rejects this argument. Had the parties 17 intended for only the text of Section 1365(d) to govern their attorney’s fee disputes, divorced from 18 the correspondent case law, they could have included language to that effect in the consent 19 decree—i.e., “The court may award fees and costs to the prevailing party if the court determines 20 such award is appropriate.” The parties did not do so. Instead, they expressly imported “the 21 standard established by 33 U.S.C. § 1365(d).” For at least 30 years, “the standard established by 22 22 U.S.C. § 1365(d)” in the Ninth Circuit has been the asymmetrical Christiansburg standard. See 23 Razore, 66 F.3d at 240 (9th Cir. 1995). Thus, to adopt the City’s argument would be to violate 24 settled law. Interpreting the consent decree using its plain language, as the Court must, see United 25 States v. Clark, 218 F.3d 1092, 1096 (9th Cir. 2000), the Court finds that the consent decree 26 unambiguously provides for the application of the asymmetrical Christiansburg standard to fee 27 1 disputes.2 2 B. Effect of California Civil Code § 1717 3 The City next argues that, even if the consent decree does impose the asymmetrical 4 Christiansburg attorney’s fees standard, applying such a standard “would impose a non-reciprocal 5 attorney’s fees clause to a California contract” and thus is forbidden by California’s “‘fundamental 6 policy of disfavoring non-reciprocal attorney’s fees clauses in litigation.’” ECF No. 47 at 19–20 7 (quoting First Intercontinental Bank v. Ahn, 798 F.3d 1149, 1156 (9th Cir. 2015)); see also Cal. 8 Civ. Code § 1717. 9 ERF persuasively argues that a federal statute’s attorney’s fees standard preempts this tenet 10 of California contract law. ECF No. 54 at 16–17; see, e.g., Roy Allan Slurry Seal v. Laborers Int’l 11 Union of N. Am. Hwy. & St. Strippers/Road & St. Slurry Local Union 1184, 241 F.2d 1142, 1146– 12 48 (9th Cir. 2001) (rejecting defendant’s attempt to “use a state statute [Cal. Civ. Code § 1717] to 13 modify the express terms of [a settlement agreement]” and holding federal employment statute 14 preempted Cal. Civ. Code § 1717). The City’s only response on this point is that “[t]his is not a 15 dispute under the CWA. It is a dispute on an agreement resolving CWA litigation.” ECF No. 59 16 at 10. This is a distinction without a difference. The underlying litigation that led to the consent 17 decree was CWA litigation. Application of Section 1717 would undermine a goal of the CWA 18 attorney’s fees provision: to incentivize private-plaintiff vindication of the statute. See, e.g., 19 Slurry Seal, 241 F.3d at 1144 (concluding that Section 1717 was preempted because “an award of 20 fees under section 1717 would . . . undermin[e] two primary goals of the [federal statute at 21 issue]”). Accordingly, the Court finds that the CWA preempts application of Section 1717 to the 22 consent decree in this action. 23 Even if Section 1717 were not preempted, it is not clear that it would dictate a reciprocal 24

25 2 For the same reason, the Court rejects the City’s argument that the asymmetrical standard is inapplicable here because “[c]ourts . . . apply the attorneys’ fees dual standard when a plaintiff 26 brings a motion to uphold federal statute” and “the City’s fees are not based on a motion to uphold or not uphold a federal statute” but instead are based on “a dispute over a Consent Decree 27 provision.” ECF No. 47 at 20. The Section 1365(d) standard applies to consent decree disputes in 1 attorney’s fees standard here. California courts “have concluded that section 1717 does not 2 supersede more specific statutes involving one-sided attorney fees provisions.” Martinez v. SAI 3 Long Beach B, Inc., 108 Cal App. 367, 330–31 (2025) (collecting cases). This is because Section 4 1717 was enacted for consumer protection purposes. See First Intercontinental Bank, 798 F.3d at 5 1157 (“Section 1717 was . . . designed to enable consumers and others who may be in a 6 disadvantageous contractual bargaining position to protect their rights through the judicial process 7 . . . .”) (quoting Milman v. Shukhat, 22 Cal. App. 4th 538, 543 (1994)). Accordingly, in the 8 “literal[] scores of specific areas of the law” where there exists “one-sided fee-shifting as a means 9 of advancing the public interest,” California courts have held Section 1717 does not apply. 10 Martinez, 108 Cal. App. 5th at 379 (quoting Covenant Mut. Ins. Co. v. Young, 179 Cal. App. 3d 11 318, 324–25 (1986) (emphasis in original)). The CWA is one such area of the law. See 12 Christiansburg, 434 U.S. at 423. The City’s interpretation of Section 1717 would turn the policy 13 objectives of that statute on their head. The Court declines to take that step. 14 C. ERF’s Litigation Conduct Was Not Frivolous 15 Under the Christiansburg standard, the Court may award attorney’s fees to a prevailing 16 defendant only if the plaintiff’s litigation conduct was “unreasonable, frivolous, meritless or 17 vexatious.” Christiansburg, 434 U.S. at 421. Although the City disputes that this standard 18 applies, it argues that even under this standard it is entitled to attorney’s fees. The City says ERF 19 acted unreasonably by taking opposite positions on the same legal issue at different points in the 20 litigation: ERF first “asserted that the 2023 NPDES Permit was final in the context of the Writ 21 Petition and then asserted that the 2023 NPDES Permit was not final in the context of the Consent 22 Decree.” ECF No. 47 at 23. 23 It is true that ERF, in its state court lawsuit challenging the 2023 NPDES Permit, averred 24 that it had “exhausted any and all available administrative remedies to the extent required by law,” 25 a prerequisite to filing that suit. ECF No. 46 at 4. And it is true that in its opposition to the City’s 26 motion to modify the consent decree, ERF took the position that the 2023 NPDES Permit was not 27 “final pursuant to applicable law” as required to necessitate modifications to the consent decree. 1 administrative remedies from an agency action being “final pursuant to applicable law,” that does 2 || not mean that ERF’s argument was frivolous or unreasonable. See Hughes v. Rowe, 449 U.S. 5, 3 15-16 (1980) (“Allegations that, upon careful examination, prove legally insufficient to require a 4 |} trial are not, for that reason alone, ‘groundless’ or ‘without foundation’ as required by 5 Christiansburg.”). Nor does the City’s cited authority, In re Xyrem (sodium oxybate) Antitrust 6 Litig., No. 20-MD-02966-RS, 2024 WL 4023561 (N.D. Cal. Dec. 16, 2024), require otherwise. 7 There, on a motion for summary judgment, the court had to consider whether there was a factual 8 || dispute as to a pharmaceutical company’s reasonable expectation of success on the merits of a 9 || petition to FDA to distribute a drug via a single pharmacy when the pharmaceutical company had 10 || flip-flopped on whether a single pharmacy was necessary. In that context, the court found that 11 “Ta] reasonable factfinder could decide that no reasonable litigant could expect success on the 12 || merits of a petition seeking a single pharmacy requirement where, along with other facts, that 13 || litigant had previously taken the opposite stance.” Id. at *3. The Court struggles to see the 14 relevance of this case, which did not discuss the Christiansburg standard or attorney’s fees. 3 15 Because the City fails to present any apposite cases, see ECF No. 47 at 23 and ECF No. 59 a 16 at 10-11, and in light of the underlying principle that fee awards to prevailing defendants in CWA 3 17 cases “are to be only sparingly awarded,” E.E.O.C. v. L.B. Foster Co., 123 F.3d 746, 751 (3d Cir. 18 1997), the Court declines to find that ERF’s conduct was unreasonable, frivolous, meritless, or 19 || vexatious, as would be required under Christiansburg to award the City attorney’s fees. The 20 || Court will therefore deny the motion. Accordingly, the Court does not consider the City’s 21 supplemental evidence regarding the proper amount of fees, and ERF’s objection to that 22 supplemental evidence, ECF No. 61, is overruled as moot. 23 CONCLUSION 24 For the foregoing reasons, the City’s motion for attorney’s fees is denied. 25 IT IS SO ORDERED. 26 Dated: October 21, 2025 . 27 JON S. TIGA 28 United States District Judge