                                                                                   [PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                 U.S. COURT OF APPEALS
                                              No. 11-15053         ELEVENTH CIRCUIT
                                          Non-Argument Calendar        APRIL 30, 2012
                                        ________________________        JOHN LEY
                                                                          CLERK
                                D.C. Docket No. 9:02-cv-80309-CMA

FRIENDS OF THE EVERGLADES, et al.,

                                                          Plaintiffs-Counter Defendants,

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA,
a Florida municipality,

lllllllllllllllllllllllllllllllllllll       l             Intervenor Plaintiff-Counter
lllllllllllllllllllllllllllllllllll         ll            Defendant-Appellant,

                                                 versus

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

lllllllllllllllllllllllllllllllllllllllll                 Defendant-Counter Claimant-
llllllllllllllllllllllllllllllllllllllll                  Appellee,
l
HENRY DEAN, Executive Director,

llllllllllllllllllllllllllllllllllllllll                  Defendant,

UNITED STATES OF AMERICA,
U.S. SUGAR CORPORATION,

lllllllllllllllllllllllllllllllllllllll     l             Intervenors-Defendants-Appellees.
                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                   (April 30, 2012)

Before CARNES, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

      Miccosukee Tribe of Indians of Florida (the Tribe) appeals the district

court’s denial of its motion for attorneys’ fees. The district court found that the

Tribe was not a “prevailing party” because, although the district court had ruled in

its favor, the decision was overturned on appeal. After a thorough review, we

affirm.

      The complex history of this case is set out in Friends of Everglades v. South

Florida Water Management District, 570 F.3d 1210, 1213-15 (11th Cir. 2009). In

short, the Friends of the Everglades and Fishermen Against the Destruction of the

Environment filed suit against the South Florida Water Management District (the

Water District) under the Clean Water Act to enjoin the Water District from

pumping polluted canal water into Lake Okeechobee. The Tribe joined the suit on

the plaintiffs’ side. After a two-month bench trial, the district court found in favor

of the plaintiffs and issued an injunction to the executive director of the Water


                                           2
District, requiring him to apply for a National Pollution Discharge Elimination

System permit. Id. On appeal, this court reversed and remanded in relevant part,

deferring to a recently-enacted EPA regulation that confirmed the permit was not

required. Id.

       While the case was pending on appeal, the Tribe filed a motion for

attorneys’ fees and costs totaling over $1.4 million. The Tribe asserted that it was

the prevailing party and thus was entitled to fees under 33 U.S.C. § 1365(d). After

this court reversed the district court’s order on the injunction, the district court

denied the motion for fees and costs, concluding that the Tribe was not the

prevailing party and that equity did not call for the Tribe to obtain fees. This is the

Tribe’s appeal.

       The Tribe argues that it was entitled to fees as the “prevailing party” because

it achieved some form of relief, namely an injunction and the promulgation of the

EPA’s new rules. The Tribe further argues that equity required the court grant the

motion for fees, as the Tribe had no control over the promulgation of the new rules

and the court should consider the Water District’s influence on the EPA to enact

the rules.

       We review the denial of a motion for attorneys’ fees and costs for abuse of

discretion. Sahyers v. Prugh, Holliday & Karatinos, P.L., 560 F.3d 1241, 1244


                                            3
(11th Cir. 2009). We will find an abuse of discretion only when a decision is in

clear error, the district court applied an incorrect legal standard or followed

improper procedures, or when neither the district court’s decision nor the record

provide sufficient explanation to enable meaningful appellate review. Peer v.

Lewis, 606 F.3d 1306, 1311 (11th Cir. 2010); Cox Enters., Inc. v. News–Journal

Corp., 510 F.3d 1350, 1360 (11th Cir. 2007).

      Generally, parties pay their own fees and costs in connection with bringing a

law suit unless some statutory fee-shifting provision permits the court to award

fees to a “prevailing party.” Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421

U.S. 240, 247 (1975); Loggerhead Turtle v. Cnty. Council of Volusia Cnty., Fla.,

307 F.3d 1318, 1322 (11th Cir. 2002). Absent a contrary legislative directive, a

“prevailing party” is one who prevails on “any significant issue” and thereby

achieves some of the benefits sought by bringing suit. Tex. State Teachers Ass’n v.

Garland Indep. Sch. Dist., 489 U.S. 782, 791-92 (1989). Here, the Clean Water

Act specifically allows the court to award attorneys’ fees and costs to “any

prevailing or substantially prevailing party, whenever the court determines that

such award is appropriate.” 33 U.S.C. § 1365(d). A prevailing or substantially

prevailing party is one who prevailed “in what the lawsuit originally sought to

accomplish.” Hughey v. JMS Dev. Corp., 78 F.3d 1523, 1532 (11th Cir. 1996)


                                           4
(citation omitted). In other words, an award of attorneys’ fees in a Clean Water

Act suit is appropriate when the moving party has advanced the goals of the Act.

Chemical Mfrs. Ass’n v. United States Envtl. Prot. Agency, 885 F.2d 1276, 1279

(5th Cir. 1989).

       In addition to the “prevailing party” requirement, the district court must

determine that the award is “appropriate.” 33 U.S.C. § 1365(d); Loggerhead

Turtle, 307 F.3d at 1323 (citing Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983)).

As the Supreme Court has explained, “the term ‘appropriate’ modifies but does not

completely reject the traditional rule that a fee claimant must ‘prevail’ before it

may recover attorney’s fees.” Ruckelshaus, 463 U.S. at 686. Thus, “absent some

degree of success on the merits by the claimant, it is not ‘appropriate’ for a federal

court to award attorney’s fees.” Id. at 694; see also id. at 688 n.9 (“[T]rivial

success on the merits, or purely procedural victories, would [not] justify an award

of fees under statutes setting out the ‘when appropriate’ [ sic ] standard.”).1 Thus,

“there is unambiguous evidence that Congress intended the ‘whenever . . .

appropriate’ fee provisions of the . . . Clean Water Act to allow fee awards to

plaintiffs who do not obtain court-ordered relief but whose suit has a positive

       1
          Ruckelshaus was a Clean Air Act case, but the Court explained that its holding applied
to the use of “appropriate” in all statutes containing the “whenever . . . appropriate” standard.
Ruckelshaus, 463 U.S. at 682 n.1. Because the Clean Water Act uses this term, we apply
Ruckelshaus here.

                                                5
catalytic effect.” Loggerhead Turtle, 307 F.3d at 1326.

      The crux of the Tribe’s argument on appeal is that it substantially prevailed

because its lawsuit was the catalyst that prompted the EPA to enact the new rules,

even though those rules were contrary to the Tribe’s position. We disagree.

      The Tribe did not prevail, or substantially prevail, in its suit. It did not

obtain an injunction or a declaratory judgment entered in its favor; nor was there a

settlement or consent decree. See Hewitt v. Helms, 482 U.S. 755, 760 (1987)

(discussing “prevailing party” under 42 U.S.C. § 1988 and concluding that the

plaintiff was not a prevailing party because he did not obtain any relief on the

merits of his claim); see also Falanga v. State Bar of Ga., 150 F.3d 1333, 1347

(11th Cir. 1998) (reversing award of attorneys’ fees because once the court of

appeals reversed the district court’s judgment, the plaintiffs were no longer the

prevailing party). Indeed, the result the Tribe sought – an injunction requiring the

Water District to obtain a permit – is exactly what the Tribe did not receive. All

that can be said of the Tribe’s action is that it led the EPA to promulgate rules

contrary to the Tribe’s position. We do not think this renders the Tribe a

“substantially prevailing” party; nor is this is what was intended by the idea that a

law suit has a positive catalytic effect.

      The inclusion of the term “whenever . . . appropriate” supports our


                                            6
conclusion here. Although Congress intended to permit courts to award fees “to

plaintiffs who do not obtain court-ordered relief but whose suit has a positive

catalytic effect,” it did not intend for this provision to extend to unsuccessful

parties. See Loggerhead Turtle, 307 F.3d at 1326 (citing Ruckelshaus, 463 U.S. at

686 n.8). Essentially, the Tribe, as the losing party, seeks to obtain fees and costs

from the winning party. We cannot conclude that Congress intended such a result.

See Ruckleshaus, 463 U.S. at 684.

      We also disagree with the Tribe that equity demands it receive fees and

costs. The Tribe bases its equity argument on its belief that the Water District

influenced the EPA to enact a new rule contrary to the Tribe’s position. The Tribe

cites no law in support of its claim on fees in this regard. Given the level of

deference in our review, we cannot conclude that the district court abused its

discretion in this case.

      AFFIRMED.




                                           7
