OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT
Library of COALEX Research Reports
COALEX Research Reports are the products of research and analysis conducted on specific issues relating to the regulation of Surface Mining Control and Reclamation Act of 1977. The research is conducted in response to requests for information from State Regulatory Authorities, under a cooperative agreement between the Office of Surface Mining (OSM) and the Interstate Mining Compact Commission (IMCC).
COALEX refers to the Library of Surface Mining Materials maintained by OSM in LEXIS-NEXIS and is a major source for the research.
Each Report includes a list of resources which were sent as attachments to the individual who requested the research. To obtain a copy of the attachments or to obtain any additional information, contact Joyce Zweben Scall by phone at 202-686-9138 or by email at JZScall@aol.com.
COALEX STATE INQUIRY REPORT - 163
Olga Brunning, Esquire
Department of Natural Resources
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:
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:
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."
Research conducted by: Joyce Zweben Scall