          Case: 14-14800   Date Filed: 06/03/2015    Page: 1 of 4


                                                         [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-14800
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 2:07-cv-01527-LSC



BLACK WARRIOR RIVERKEEPER, INC.,
FRIENDS OF LOCUST FORK RIVER, INC.,

                                              Plaintiffs-Appellees,

versus

METRO RECYCLING INC.,

                                              Defendant-Appellant.

                     ________________________

              Appeal from the United States District Court
                 for the Northern District of Alabama
                     ________________________

                             (June 3, 2015)
                Case: 14-14800     Date Filed: 06/03/2015     Page: 2 of 4


Before ED CARNES, Chief Judge, TJOFLAT and SENTELLE, * Circuit Judges.

PER CURIAM:

        The parties and the district court are well aware of the facts and procedural

history leading to this appeal by Metro Recycling of the award of attorney’s fees to

Black Warrior Riverkeeper, so we will get right to the issues and our resolution of

them.

        First, Metro contends that Riverkeeper is not a “prevailing or substantially

prevailing party” within the meaning of 33 U.S.C. § 1365(d). Yes it is. The

definition of that term is one who “prevailed in what the lawsuit originally sought

to accomplish,” or more generally “advanced the goals of the [Clean Water] Act.”

Friends of the Everglades v. S. Fla. Water Mgmt. Dist., 678 F.3d 1199, 1201–02

(11th Cir. 2012) (quotation marks omitted). Riverkeeper did that, and it also

prevailed in the actions that it took after the first consent decree was entered. Its

aim, which promoted the goals of the Act, was not just to shut down the tire

recycling landfill but to prevent the shutdown landfill from continuing to pollute

the Black Warrior River.

        The work done after the first consent decree was entered that led to the

second consent decree is the work at issue in this appeal. And that work was

necessary to accomplish what the lawsuit had sought and to further the goals of the

        *
          Honorable David Sentelle, United States Circuit Judge for the District of Columbia
Circuit, sitting by designation.
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Act. Riverkeeper was as much a “prevailing or substantially prevailing party” as

to the second consent decree as it had been for the first one, and Metro agreed to

pay Riverkeeper attorney’s fees for its work on the first one. The second consent

decree specifies that: “Metro has agreed to undertake certain additional measures

upon closure of the landfill that are not contrary to or inconsistent with the

Modified Closure Plan, but which constitute additional responsibilities agreed to

by Metro to settle this action.” That language, to which Metro consented, refutes

its argument that all Riverkeeper got was the closure of the landfill, something

Metro asserts it would have done anyway. Metro was forced to do more in the

second consent decree in order to settle Riverkeeper’s second motion to enforce.

That was a victory for Riverkeeper and one that furthered the goals of the Clean

Water Act.

      Second, Metro contends that the district court based its award at least in part

on the catalyst theory even though the Supreme Court has banned the use of that

theory. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health &

Human Res., 532 U.S. 598, 604, 610, 121 S. Ct. 1835, 1840, 1843 (2001). But

Buckhannon was a Fair Housing Amendments Act and Americans with

Disabilities Act case. See id. at 601, 121 S. Ct. at 1830. Since that decision, we

have held that the catalyst theory is still viable in Clean Water Act cases. See

Friends of the Everglades, 678 F.3d at 1202 (“[T]here is unambiguous evidence


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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 catalytic effect.”) (quoting 33 U.S.C. § 1365(d))

(alteration and quotation marks omitted). So the district court did not err in using

it in this case.

       Third, Metro contends that the district court abused its discretion in

considering the affidavit of Riverkeeper Nelson Brooke. This contention fails for

two independently adequate alternative reasons. There is no indication in the

district court’s order that it considered the affidavit and, even if it did, any error in

doing so was harmless because there was abundant other evidence of the facts

attested to in that affidavit.

       For these reasons, the district court’s order awarding attorney’s fees to

Riverkeeper is AFFIRMED. 1




       1
         This case was originally scheduled for oral argument but was decided on the briefs
alone by unanimous consent of the panel under 11th Cir. R. 34-3(f).
                                            4
