Lenape attorneys defend legal fees for Maple Grange

| 21 Feb 2012 | 10:50

    VERNON-A legal brief filed in New Jersey Superior Court outlines the rationale for a law firm's request for $664,959 in legal fees from the township for the lawyers who successfully won historic preservation for the Lenni-Lenape archeological site on the Maple Grange park site. The 28-page brief calls the more than three-year battle to preserve the site from development by the township as a park "one of the most complicated, contentious, unprecedented, lengthy and worthwhile battles to preserve an historic resource in New Jersey." "There's nothing to apologize for," said Gregory A. Werkheiser, who filed the brief. Although he and the law firm of Piper Rudnick took on the case pro bono - without fee to the Lenape and their co-plaintiff, Vernon avocational archeologist Rick Patterson - New Jersey's Environmental Rights Act specifically entitles the attorneys for the successful party to seek legal fees from the defendants. Joe Ragno, the township's attorney, discussed the brief at last week's council meeting. The Advertiser-News reported the objections of township officials to the nearly $700,000 tab. The newspaper did not receive the information until just before going to press and was unable to contact Werkheiser for last week's edition. Ragno had told the council that Werkheiser's firms (He has since left Piper Rudnick to join the Washington, D.C. firm of Womble Carlyle Sandridge & Rice, taking the case with him.) charged for hundreds of hours on a part of the case that Ragno billed the township just 59 hours. He also said that he thought Werkheiser double- and triple-billed some items. Werkheiser stood by his accounting. Three other attorneys besides himself worked on the case, he said. "We have three attorneys working twenty hours apiece," he said. "Ragno calls that triple-billing. "We call that winning the case." His brief points out that through the long and bitter fight, the Lenape's legal representatives argued thirteen separate issues before seven different state and federal agencies, including N.J. Superior Court, the state Office of Historic Preservation, the Senate Environmental Committee, the State Review Board, the Commissioner of the N.J. Department of Environmental Protection, the Superior Court Appellate Division, and the National Park Service. The Lenape won all 13 of those issues, culminating in listing of the 40-acre Maple Grange trace on the National Register of Historic Places and winning protection from development. The first mention that the site might hold a high number of artifacts was in the first half of the twentieth century. In 1990, according to the brief, the N.J. Department of Transportation, while building a bridge on Maple Grange Road, uncovered stronger evidence. Over the next ten years, Patterson delineated a 35-acre site rich in artifacts going back as far as 10,000 years, to the earliest human inhabitants of the area. The town then purchased the 180-acre Maple Grange tract, with the archeological site, to build a town park and recreation complex. After the purchase, Patterson came forward to seek preservation of the historic portion, which took up some of the land the township considered most suited for building fields. The township council at the time felt that Patterson had said nothing about the site until the land was in public hands and could be preserved. He and others who supported him said that it was no secret that the artifacts were there, and, had the town done its homework, it would have known about them. The real battle began in May, 2001, when then-Mayor John Logan moved earth-moving equipment onto the site to begin construction. Patterson contacted the Lenape tribe as well as Vernon activist Jessica Paladini and filed his own request for a stop-work order with Superior Court. Werkheiser's brief points out that the 1974 Environmental Rights Act was passed specifically to allow private citizens to bring suits on the public's behalf to preserve the environment. "Regular citizens can never afford to engage in these kinds of battles," said Werkheiser. And even a lawyer working pro bono "takes significant risk and puts significant resources into the case. We put in hundreds of hours among four attorneys over four years. That would bankrupt a smaller firm." On the morning of a scheduled court hearing on Patterson's request for an injunction, the township began bulldozing, and Superior Court issued an immediate injunction. The township said the Lenape, who had long since been driven out of their ancestral lands and been reduced by disease to a mere 1,500 families, had no right to intervene. The court said otherwise, just as it would also rule that the Lenape had standing to sue. An effort by the township to pass legislation in Trenton to take away the Lenape's right to nominate the site as a historic place also failed. So it went over the years - and through more than 2,800 billable hours, says Werkheiser's brief. The epic finally was totally resolved this year when the state and the township agreed to a deal in which New Jersey will take over ownership of and custody of the historic site and the town will be able to build a number of ballfields - but about half of what initial plans called for - on the remainder of the Maple Grange. The only thing not resolved was the old injunction, keeping the township from attempting to build on the site, which the Lenape wish to remain undisturbed as a passive landmark. When the court asked the parties why the injunction remained, Werkheiser said the only issue left to resolve was legal fees. And now, the issue is how much that fee should be. The township is arguing that it should be much less and that Werkheiser and his firms spent too much time on the case. "Their only issue is that we spent too much money beating them," said Werkheiser. "What is the appropriate measure of time spent? Is it the 59 hours it took to lose or the several hundred hours it took to win?" The brief asserts that, "The Township had several opportunities to limit its exposure to attorney's fees. . ., but chose not to take advantage of those opportunities." Vernon officials also, the filing goes on, "ignored or rejected three settlement offers by the Lenape during the three-year history of this case." On the issue of fees, the brief says, "The Township's own absurd and affirmative conduct also caused the Lenape's counsel to needlessly incur significant attorney's fees." The township was to respond to Werkheiser's brief and the court will make the final decision.