COALEX REPORT 266

	Coalex Report 266

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 - 266
October, 1993
          
          Karen Jacobs, Esquire
Illinois Department of Mines and Minerals
300 West Jefferson Street - Suite 300
P.O. Box 10137
Springfield, Illinois 62791-0137

TOPIC: ATTORNEYS' FEES (Updates: 120, 163, 180 & 220)

INQUIRY: Please locate any administrative or judicial review cases where the operator or the state
regulatory authority sought costs and attorneys' fees under Section 525(e) of SMCRA or the state
counterpart, after prevailing at an administrative or judicial proceeding brought under SMCRA or
the state counterpart.

SEARCH RESULTS: Four existing COALEX Reports address various aspects of the topic "attorneys'
fees": Reports 120, 163, 180 and 220. Copies of the COALEX Reports, without attachments, are
enclosed. Using COALEX and LEXIS, two recent decisions were identified. These are discussed
below and copies are attached.

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

ADDITIONAL DECISIONS
BIG B MINING CO. (BIG B) v DEPT. OF ENVIRONMENTAL RESOURCES (DER), 624 A 2d 713 (Pa
COMMW CT 1993). BIG B MINING CO. v DEPT. OF ENVIRONMENTAL RESOURCES, 142 Pa Commw
215, 597 A 2d 202 (Pa Commw Ct 1991).
   Big B appealed the Pennsylvania Environmental Hearing Board's (EHB) denial of its petition for
counsel fees, costs and expenses incurred while successfully challenging DER's denial of its
application for a surface mining permit. The court reversed EHB's denial of costs and expenses
stating:

"Federal SMCRA and its implementing regulations do not provide for any recovery of attorney's
fees and expenses by permittees for a successful challenge of a surface mining permit denial.
However, in Big B I, we specifically held that Section 4(b) of [Pa]SMCRA does allow such
recovery.... The EHB borrowed [the federal] standard [for recovery of costs in cases other than
permit challenge cases], which not only lacks a basis in Pennsylvania law, but which we held to be
contrary to Pennsylvania law...."
  
"Big B prevailed on each objective criteria the EHB established for eligibility for attorney's fees in
Section 4(b) cases.... Section 4(b) of [Pa]SMCRA does not make a distinction between permittees
and other parties in awarding fees and costs."

[Section 4(b) of PaSMCRA is attached.]


COALEX REPORTS
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.


COALEX STATE INQUIRY REPORT - 163, "Attorneys' fees" (1990).
   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? 


COALEX STATE INQUIRY REPORT - 180, "Attorneys' fees in non-enforcement, non-adversarial
proceedings" (1991).
   INQUIRY: Are attorneys who speak during informal conferences, held as a means of gathering
data on a pending permit, entitled to an award of costs, expenses and attorneys' fees for their
appearance?


COALEX STATE INQUIRY REPORT - 220, "Petitions for costs, expenses and attorney's fees" (1992).
  This Report consists of a listing of all administrative decisions which rule on the award of costs,
expenses and attorney's fees. In particular, "cost petition" cases that seek awards under SMCRA
Secs. 520(d) [30 USC 1270(d)] and 525(e) [30 USC 1275(e)].


ATTACHMENTS
A.   BIG B MINING CO. (BIG B) v DEPT. OF ENVIRONMENTAL RESOURCES (DER), 624 A 2d 713
     (Pa Commw Ct 1993). 
B.   BIG B MINING CO. v DEPT. OF ENVIRONMENTAL RESOURCES, 142 Pa Commw 215, 597 A
     2d 202 (Pa Commw Ct 1991).
C.   COALEX STATE INQUIRY REPORT - 120, "Attorneys' fees" (1989) [without attachments].
D.   COALEX STATE INQUIRY REPORT - 163, "Attorneys' fees" (1990) [without attachments].
E.   COALEX STATE INQUIRY REPORT - 180, "Attorneys' fees in non-enforcement, non-adversarial proceedings" (1991) [without attachments].
F.   COALEX STATE INQUIRY REPORT - 220, "Petitions for costs, expenses and attorney's fees"
     (1992) [without attachments].


Research conducted by: Joyce Zweben Scall

(Home Page)

Office of Surface Mining
1951 Constitution Ave. N.W.
Washington, D.C. 20240
202-208-2719
getinfo@osmre.gov