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West Virginia Highlands Conservancy, Inc. v. Norton

ELR Citation: 33 ELR 20264
Nos. No. 02-2375, (4th Cir., 09/03/2003)

The court affirms in part and vacates in part a district court's award of attorney fees to environmental groups that sought to rescind new mining permits issued to a company that owned a mine in violation of the Surface Mining Control and Reclamation Act (SMCRA). The U.S. Department of the Interior's Office of Surface Mining Reclamation and Enforcement (OSM), allegedly relying on a mine lease, found that the company in question did not own the mine, but a review requested by the groups revealed that the OSM had not reviewed the mine lease. The OSM then remanded the issue for proper review and record development. On remand, the OSM found no ownership connection between the company and the mine. The groups appealed again, only to withdraw their appeal after the company ceased operations. The groups then sought attorney fees before the Interior Board of Land Appeals (IBLA) for the action that resulted in the OSM remand. The IBLA denied the groups' request, but the district court awarded attorney fees to the groups on appeal. SMCRA authorizes fee awards to petitioners who succeed on the merits and who substantially contribute to a determination of the issues. Here, the OSM remand is a sufficient success on the merits because it advanced the SMCRA goal of ensuring that the OSM properly fulfills its duties. Although the remand was not all of the relief that the groups requested, it amounted to a partial success sufficient for a fee award. However, the district court erred in deciding whether the groups made a substantial contribution toward achieving the remand. That question was for the IBLA to decide. Therefore, the district court's grant of summary judgment to the groups on the issue of substantial contribution was vacated and remanded to the IBLA.

Counsel for Plaintiff
James M. Hecker
Trial Lawyers for Public Justice
1717 Massachusetts Ave. NW, Washington DC 20036
(202) 797-8600

Counsel for Defendant
Kasey Warner
U.S. Attorney's Office
500 Quarrier St., Charleston WV 25301
(304) 345-2200