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Colfax balks at attorney charges

Pleas for mercy voiced in battle over sewage plant violations
By: Gloria Beverage Gold Country News Service
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Colfax City Manager Bruce Kranz is crying foul. In April, a federal judge denied the city’s appeal of contempt charges in the 2008 settlement agreement with Allen and Nancy Edwards and the Oakland-based Environmental Law Foundation. Although the court deferred a decision on “reasonable attorney fees” until July 1, the plaintiff’s attorneys have asked the court to order the city to immediately pay $186,603 in attorney and expert fees as well as costs. “They are demanding preemptive, immediate payment for services not yet completed in the ongoing case and without a hearing to determine the reasonableness of their fees and costs,” Kranz said. The attorneys counter their fees are reasonable and necessary for the work performed, particularly since the city has missed several deadlines for submitting documentation thus delaying their own preparations for the July 1 hearing. They also argue the city’s “refusal to pay fees and costs represents a prioritization of its currently available funding,” wrote Daniel Cooper with Lawyers for Clean Water in a May 19 court document. To support his argument, Cooper points to the city’s decision last month to demolish its swimming pool in order to build a larger, state-of-the art facility. In February, the Edwards and the Environmental Law Foundation filed a motion with the U.S. District Court claiming the city had violated the 2008 settlement agreement at least 4,283 times in 2009. Those allegations ranged from sewage spills to a lack of documentation on the operation of the plant. Under the terms of the settlement, the city had agreed to cease the release of polluted sewage into Smuther’s Ravine, the creek that flows through the Edwards property into the North Fork of the American River. “As is well-known to the poor citizens of the city,” Kranz wrote on the city’s website, “Colfax has been struggling for some years to clean up an old, tired, leaking sewage system.” The city has borrowed money, raised fees and obtained grants to replace the plant and the miles of 100-year-old pipes, he continued. “There is a long way, many miles of pipe, and many million dollars to go, but the city is trying to do the best it can to comply with the law and protect the public’s health,” he said. While the city has accepted responsibility for violating certain criteria of the settlement agreement, Kranz says the Bay Area law firm is now “bent on picking the pockets of penniless Colfax.” He charges the attorneys “are demanding fees and costs more than triple the settlement cap to which they previously agreed. They are demanding exorbitant attorney fees, as much as $550 an hour and reimbursements for costs such as $125 lunches.” Kranz further argues the fees are “in excess of reasonable or prevailing rates” for similar work performed by Sacramento-area firms. The attorneys argue the San Francisco billing rate is appropriate, even substantially discounted. Among the fees being requested are $517 an hour (compared to typical hourly rate of $550) and $375 an hour for the primary attorneys working on the case. Further, they claim many tasks were often delegated to junior associates who bill at lower hourly rates. The fees are based on the Laffey matrix, a formula used by courts to determine reasonable fees based on the prevailing market rates in the community. The decision to hire a Bay Area firm came after Edwards was unable to locate attorneys in Placer County or the Sacramento area with experience in Clean Water Act enforcement actions, Edwards wrote in his May 19 declaration. As far as the charge of “$125 lunches,” Edwards acknowledges he and the attorneys met for lunch following the April 14 court hearing. The group of five selected a restaurant close to the court that had an area where they could hold a private meeting on how to proceed. “I paid the bill. It was $106 and I left a 20 percent tip,” Edwards said. Edwards and his attorneys believe the court battle is necessary to force Colfax into complying with the settlement agreement. “…Even now, Colfax is litigating rather than resolving its ongoing non-compliance,” Cooper wrote. “Colfax cannot have it both ways.” Kranz, on the other hand, says the city deserves some relief. “We are appealing to the judge to hold payments until the end, (to) cap fees to limits agreed to in the settlement, (to) accept reasonable fees for lawyers in Sacramento region rather than San Francisco and to allow the city to pay annual installments,” Kranz wrote. “Lawyers ought to be paid reasonable fees and no more.”