[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-14800

Non-Argument Calendar

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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.

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Appeal from the United States District Court

for the Northern District of Alabama

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(June 3, 2015)

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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).

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