Issue Was One Of First Impression for Ninth Circuit.
In Black Mesa Water Coalition v. Jewell, No. 12-16980 (9th Cir. Jan. 26, 2015) (published), the Ninth Circuit considered the “first impression” issue of the standard of review to be used for purposes of scrutinizing fee decisions made under the Surface Mining Control and Reclamation Act’s (SMCRA’s) administrative fee-award provision, 30 U.S.C. § 1275(e). Under this statute, the Secretary of Interior has issued regulatory guidance for when costs and expenses, including attorneys’ fees, may be awarded “to any person . . . who initiates or participates” in an agency proceeding under SMCRA. 43 C.F.R. § 4.1294(b). A person may receive a fee award from OSM if that person is eligible for, i.e., “prevails in whole or in part, achieving at least some degree of success on the merits,” and entitled to a fee award, i.e., “upon a finding that such person made a substantial contribution to a full and fair determination of the issues.” Id.
After a plaintiff environmental group successfully participated in a challenge to the Office of Surface Mining Reclamation and Enforcement’s grant of a coal mining permit revision, an ALJ dismissed plaintiff’s fee petition on the ground plaintiff was neither “eligible” nor “entitled” under the statute/regulation. The district judge affirmed on the “entitlement” determination but did not reach the “eligibility” adjudication.
The Ninth Circuit reversed/vacated in part and remanded for a redetermination on the “entitlement” element.
On the standard of review issue, the federal appeals court determined that it was de novo on the “eligibility” element (siding with a Fourth Circuit decision) and substantial evidence on the “entitlement” element (one it deemed to be factual in nature).
Applying this review standard, the Ninth Circuit found plaintiff was “eligible” for a fee award, having obtained some success on the merits. It remanded for a relook on the “entitlement” determination based on the panel’s perception that the erroneous eligibility determination might have impacted the ultimate entitlement call below.