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Black Mesa Water Coalition v. Jewell

United States Court of Appeals, Ninth Circuit

January 26, 2015

BLACK MESA WATER COALITION; DINE HATAALII ASSOCIATION; TO NIZHONI ANI; DINE ALLIANCE; CAQUIFER FOR DINE; SIERRA CLUB; CENTER FOR BIOLOGICAL DIVERSITY; NATURAL RESOURCES DEFENSE COUNCIL, Plaintiffs-Appellants,
v.
SALLY JEWELL, in her official capacity as U.S. Secretary of the Interior, Defendant-Appellee

Argued and Submitted, San Francisco, California November 21, 2014

Page 1056

Appeal from the United States District Court for the District of Arizona. D.C. No. 3:11-cv-08122-GMS. G. Murray Snow, District Judge, Presiding.

SUMMARY[**]

Fees and Costs

The panel reversed in part, and vacated in part, the district court's judgment in an action for costs and expenses brought by a plaintiff group of environmental and community organizations against the federal Office of Surface Mining Reclamation and Enforcement after plaintiff participated in a successful challenge to OSM's grant of a coal mining permit revision.

Plaintiff petitioned the agency under the Surface Mining Control and Reclamation Act's administrative fee-award provision to recover costs and expenses from OSM. The administrative law judge dismissed the fee petition based on the conclusion that plaintiff was not " eligible," and was not " entitled" to costs and expenses, under 43 C.F.R. § 4.1294(b).

The panel held that its review of the agency's " eligibility" determination was de novo, and its review of the " entitlement" determination was for substantial evidence. The panel concluded that plaintiff was " eligible" for fees because it showed some degree of success on the merits, and the agency's contrary conclusion was error as a matter of law. The panel vacated the portion of the district court's decision as related to the question of entitlement. The panel declined to reach the issue whether plaintiff was " entitled" to fees, and remanded for the agency to consider the issue. Finally, the panel rejected plaintiff's argument that the Secretary of the Interior had waived a challenge to the reasonableness of any award amount that the agency might grant on remand for costs and expenses reasonably incurred for plaintiff's participation in the proceedings at the agency level.

Brad A. Bartlett (argued), Western Energy Justice Center, Durango, Colorado; Matt Kenna, Public Interest Environmental Law, Durango, Colorado; Walton D. Morris, Jr., Morris Law Office, P.C., Charlottesville, Virginia, for Plaintiffs-Appellants.

Paul A. Bullis (argued), Assistant United States Attorney; John S. Leonardo, United States Attorney, District of Arizona; Mark S.Kokanovich, Deputy Appellate Chief, Phoenix, Arizona, for Defendant-Appellee.

Before: Ronald M. Gould and Paul J. Watford, Circuit Judges, and Solomon Oliver, Jr., Chief District Judge.[*] Opinion by Judge Gould.

OPINION

Page 1057

GOULD, Circuit Judge:

Black Mesa Water Coalition, et al. (Black Mesa), a group of environmental and community organizations, sought costs and expenses, including attorney's and expert witness fees, from the Federal Office of Surface Mining Reclamation and Enforcement (OSM) after Black Mesa participated in a successful challenge to OSM's grant of a coal mining permit revision. An Administrative Law Judge (ALJ) denied Black Mesa's fee request, and the Interior Board of Land Appeals (IBLA) affirmed. Upon review, the district court affirmed the agency's final decision. Black Mesa appeals the district court's decision. We have jurisdiction under 28 U.S.C. ยง 1291. We reverse ...


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