ORDER DENYING DEFENDANTS' MOTION FOR ATTORNEYS' FEES
This matter comes before the Court on Defendants Glenn County and John Linhart's (collectively "Defendants") Motion for Attorneys' Fees (Doc. #18). Plaintiff California Sportfishing Protection Alliance ("Plaintiff") opposes the motion.*fn1
On February 1, 2011, Plaintiff filed a complaint (Doc. #1) against Defendants alleging their operation of a landfill facility violated the Clean Water Act ("CWA"), 33 U.S.C. §§ 1311, 1342. Specifically, Plaintiff alleged that Defendants 2 violated the National Pollutant Discharge Elimination System 3 Permit ("NPDES Permit") because Defendants allowed polluted and 4 contaminated storm water to discharge from their landfill in 5 amounts exceeding those permitted by the NPDES Permit. 6 Consequently, Plaintiff contends, this discharge polluted White 7 Cabin Creek and Wilson Creek. 8
On January 25, 2012, Plaintiff filed a Voluntary Motion to 9 Dismiss with Prejudice (Doc. #12). Plaintiff stated that despite its belief that Defendants discharge pollutants into White Cabin Creek and Wilson Creek, proving its case would be cost prohibitive. The Court granted Plaintiff's Motion to Dismiss with Prejudice on April 9, 2012 (Doc. #17). On May 7, 2012, Defendants filed the instant Motion for Attorneys' Fees.
In an action based on the Clean Water Act, the district court may award attorneys' fees to a prevailing defendant upon finding "that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Razore v. Tulalip Tribes of Wash., 66 F.3d 236, 240 (9th Cir. 1995) (citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978)).
Defendants contend that they are the prevailing party because Plaintiff's voluntary dismissal of the action with 2 prejudice constituted a change in the legal relationship between 3 the parties since it precludes Plaintiff from re-filing the 4 action in the future. Furthermore, Defendants argue that 5 Plaintiff's action was "without foundation." Specifically, they 6 argue that there is no evidence to suggest that pollutants from 7 Defendants' landfill have been discharged to any body of water. 8
Additionally, Defendants contend that there is no evidence of 9 the mechanism through which storm water from the landfill could reach either of the creeks that Plaintiff alleges are polluted.
Plaintiff does not challenge that Defendants are the prevailing party, but it contests that the action is without foundation. Plaintiff argues that it had sufficient evidence to justify the filing of its lawsuit. Plaintiff alleged that Defendants violated the terms of the NPDES Permit. Specifically, Plaintiff based its allegations on Defendants' self-reported discharges of storm water containing excessive concentrations of suspended solids, specific conductance, and iron without applying requisite pollution control technologies.
The Court begins its analysis by finding that Defendants are the prevailing party. A voluntary dismissal with prejudice serves as a dismissal on the merits for the purposes of res judicata. See Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002) ("a dismissal other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.") (citing Fed. R. Civ. P. 41(b)).
Finding that Defendants are the prevailing party, the Court now turns to whether Plaintiff's case was frivolous, 2 unreasonable or without foundation. In applying the Razore 3 criteria, "it is important that a district court resist the 4 understandable temptation to engage in post hoc reasoning by 5 concluding that, because a plaintiff did ...