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Black Mesa Water Coalition v. Jewell

ELR Citation: 45 ELR 20021
Nos. 12-16980, (9th Cir., 01/26/2015)

The Ninth Circuit reversed a lower court decision denying environmental groups' request for attorneys fees after they successfully challenged OSM's grant of a coal mining permit revision. Below, the groups' lawsuit was consolidated with other actions challenging the permit revision, which was ultimately vacated and remanded due to NEPA violations. The groups then sought to recover costs and expenses from OSM under SMCRA's administrative fee-award provision. An ALJ dismissed the groups' fee petition, concluding that they were neither "eligible" nor "entitled" to costs and expenses, and DOI's appellate board and a federal district court affirmed. But the groups are "eligible" for fees because they showed some degree of success on the merits. Although it was technically another party that prevailed at summary judgment in the case below, the groups raised the same NEPA arguments before the agency and during public comment. Making those arguments early in the merits stages of the administrative proceedings shows participation in those proceedings regarding the NEPA issues and supports the conclusion that the groups achieved some degree of success on the merits. In addition, the relief given on the other party's successful NEPA motion was congruent with the relief that the groups sought. The court, however, declined to reach the issue of whether the groups were "entitled" to fees and remanded the issue for the agency to consider.