COALEX REPORT 163

	Coalex Report 163

This is the Office of Surface Mining's library of COALEX Research Reports. COALEX is a database of mining and reclamation information, including the Surface Mining Law and regulations, maintained in LEXIS-NEXIS -- a commercial, on-line research service. These reports have been compiled under a cooperative agreement between the Office of Surface Mining and the Interstate Mining Compact Commission, which represents most U.S. coal producing states. The following report includes an analysis of a specific issue requested by a state regulatory authority with responsibility for carrying out the Surface Mining Law. Copies of the research reports and attachments are available to the public, upon request. For additional information, or to obtain copies of the listed attachments, contact Ron Tarquinio by phone at (202) 208-2882 or by e-mail at rtarquin@osmre.gov.

                   
COALEX State Inquiry Report - 163
July, 1990

Olga Brunning, Esquire
Department of Natural Resources
Tawes Building
580 Taylor Avenue, Room C-4
Annapolis, Maryland 21401

TOPIC: ATTORNEYS' FEES

INQUIRY: Can an applicant for attorneys' fees rely on work done in prior proceedings (in which
the applicant lost) in seeking attorneys' fees in a subsequent case where the record from the prior
case has merely been transferred? Please locate any relevant case law.

SEARCH RESULTS: Research was conducted using the COALEX Library and other materials
available on LEXIS, as well as existing COALEX Reports. No opinions were identified that discuss
the specific issues of this inquiry; however, an existing COALEX Report on attorneys' fees and two
additional cases, attached, will provide information on related decisions. 

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

COALEX STATE INQUIRY REPORT - 120, "Attorneys' Fees" (1989).  
   This Report includes federal and state court cases and administrative decisions which discuss
the following three issues:

1)   Award of attorneys' fees to surface mining operators as a result of a challenge to a permit
     decision; 
2)   Recovery of attorneys' fees by litigants against a governmental agency;  
3)   Discuss Sec. 525(e) of the Surface Mining Control and Reclamation Act of 1977 (SMCRA)
     or 43 CFR 4.2190 et seq.

   Cases of particular interest from this Report are the following:
PENNSYLVANIA v DELAWARE VALLEY CITIZENS' COUNCIL FOR CLEAN AIR, 478 U.S. 546 (1986).
   Sec. 304(d) of the Clean Act authorizes attorney's fees for "any action". The Court determined
that (1) participation in administrative proceedings are included under 304(d); and (2) the
"lodestar" figure provided a "reasonable fee award reflecting the quality of representation",
without the need for additional "enhancement".   


UTAH INTERNATIONAL INC. v DEPT. OF INTERIOR, 643 F.Supp. 810 (D. Utah 1986).
   In UTAH INTERNATIONAL, the court ruled that "groups were not entitled to award for those
claims on which they were aligned with government". Environmental groups that were successful
as defendants could recover attorney's fees, based on rates charged by attorneys at the time "of
government's remand motion", for work performed in conjunction with those claims.
Environmental groups could not recover attorney fees for "work done in conjunction with
nonenforcement, nonadversarial administrative proceedings which led to unsuitability
designation". Finally, the court held that groups "which had received an award under SMCRA
were not entitled to award of fees pursuant to Equal Access to Justice Act".


NATURAL RESOURCES DEFENSE COUNCIL, et al. v OSM, WEST ELK COAL, INTERVENOR, STATE
OF COLORADO, INTERVENOR, 107 IBLA 339, IBLA 87-200 (1989). Petition for award of costs
and expenses, including attorneys' fees approved in part; information requested.
   The Board's rulings include the following:
1)   The provision for the awarding of attorneys' fees in Sec. 525(e) of SMCRA is applicable to
     permit review proceedings.
2)   To be entitled to an award, 43 CFR 4.1294(b) requires that the record show that the
     person made a substantial contribution to a full and fair determination of the issues.
3)   A person challenging issuance of a permt to mine will be deemed eligible for an award
     where the person achieved at least some degree of success on the merits.
4)   Where a person is determined to be eligible for an award, a further determination must be
     made of what issues are compensable.
5)   A person challenging issuance of a permit to mine may receive an award for work
     performed in preparing and filing the petition for review of the permit; however, the
     award will not include compensation for work performed in state proceedings involving the
     same minesite and related state permitting process.
6)   A person may receive an award for work performed with respect to procedural victories
     which contributed to the person achieving some degree of success on the merits.
7)   A person is not entitled to an award for work performed on unsuccessful settlement
     negotiations unless the hours claimed are limited to those issues upon which petitioner is
     ultimately successful.


HONDA v MITCHELL, 417 F 2d 324 (DC Cir 1969).
"[T]he mere fact that the administrative determination was not at first favorable to any of the
claimants does not affect the fact that appellants performed an obvious service for [claimants of
related litigations] by building the administrative record upon which each was later to succeed." 


ATTACHMENTS
1.   COALEX STATE INQUIRY REPORT - 120, "Attorneys' Fees" (1989).
     A.   ANNOTATION, "Award of Attorneys' Fees Pursuant to Sec. 520(d), 520(f), 525(e),
          or 703(c) of Surface Mining Control and Reclamation Act of 1977 (30 USCS Sec.
          1270(d), 1270(f), 1275(e), 1293(c)", 89 A.L.R. Fed. 170 (1988).
     B.   RUCKELSHAUS v SIERRA CLUB, 463 U.S. 680 (1983).
     C.   PENNSYLVANIA v DELAWARE VALLEY CITIZENS' COUNCIL FOR CLEAN AIR, 478
          U.S. 546 (1986).
     D.   BLUM v STENSON, 104 S.Ct. 1541 (1984).
     E.   COPELAND v MARSHALL, 641 F.2d 880 (D.C. Cir. 1980).
     F.   UTAH INTERNATIONAL INC. v DEPT. OF INTERIOR, 643 F.Supp. 810 (D. Utah
          1986).
     G.   HARDY v COMMOWNEALTH OF PENNSYLVANIA, 101 Pa. Commw. 1 (1986).
     H.   VIRGINIA CITIZENS FOR BETTER RECLAMATION, 88 IBLA 126, IBLA 84-838
          (1985).
     I.   DONALD ST. CLAIR, 84 IBLA 236 (1985).
     J.   COUNCIL OF THE SOUTHERN MOUNTAINS, INC. v OSM, 3 IBSMA 44, IBSMA No.
          80-34 (1981).
     K.   DENNIS R. PATRICK v OSM, 1 IBSMA 248, Appeal No. IBSMA 79-21 (1979). 
     L.   TURNER BROS., INC. v OSMRE, Docket Nos. TU 6-24-R, TU 6-28-R, TU 6-36-R,
          TU 6-45-R, TU 6-51-R, TU 6-74-R, TU 6-106-R, TU 7-3-R, TU 7-17-R, TU 7-20-R,
          TU 7-24-R, TU 7-25-R, TU 7-27-R, TU 7-28-R (1987).
     M.   ALTERNATE FUELS, INC. v OSM, Docket No. TU 5-23-R (1985).
     N.   DELTA MINING CORP., 3 IBSMA 252, IBSMA 81-60 (1981).
     O.   JAY TOWNSHIP v COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF
          ENVIRONMENTAL RESOURCES, EHB Docket No. 82-300-W (1987).
     P.   KWALWASSER v COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF
          ENVIRONMENTAL RESOURCES, EHB Docket No. 84-108-M (1988).
     Q.   SHEESLEY v COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF
          ENVIRONMENTAL RESOURCES, EHB Docket No. 81-061-H (1982).
2.   NATURAL RESOURCES DEFENSE COUNCIL, et al. v OSM, WEST ELK COAL, INTERVENOR,
     STATE OF COLORADO, INTERVENOR, 107 IBLA 339, IBLA 87-200 (1989).
3.   HONDA v MITCHELL, 417 F 2d 324 (DC Cir 1969).


Research conducted by: Joyce Zweben Scall

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