Public Lands: Outer Continental Shelf Lands Act: Drilling Moratorium Attorney's Fees

摘要

Following the earlier district court issuance of a preliminary injunction against the May 28,2010 drilling moratorium order, 696 RSupp.2d 627,177 0.&G.R.399 (E.D. La. 2010) and the dismissal of its appeal on mootness grounds, 396 Fed. Appx. 147, 177 0.&G.R.411 (5th Cir. 2010), one of the plaintiffs files a motion for attorney's fees and costs of approximately $530,000. The district court grants the motion based on its finding that the Department of the Interior was in civil contempt of the court's injunction. The contempt finding is based on the Department of the Interior's failure to seek a remand from the district court before taking additional administrative actions, the Department's continuous public statements of its intent to reinstate the moratorium and its communications with the oil and gas industry mat a new moratorium was in the offing. Held: reversed. In this initial, and now withdrawn opinion, the court finds that federal courts have inherent, contempt powers but such powers must be "exercised with restraint." While the standard of review of a finding of contempt is under the deferential abuse of discretion standard, the appellate court should not engage in a mere perfunctory review. The majority opinion focuses on the three specific bases listed by the district court as support for its contempt finding. It concludes that there is insufficient support in the record based in part on the general nature of the injunction. Judge Elrod, in a lengthy dissent, argues that a contempt order should be judged using a totality of the circumstances approach and that when so used, mere is ample support in the record for the district court's contempt finding and the award of attorney's fees.