[co-author: Victoria Boyko]

In Black Mesa v. Jewell, 2015 DJDAR 1050, the United States Court of Appeals for the Ninth Circuit concluded that an environmental group was entitled to an award of attorney fees arising out of their challenge to the Office of Surface Mining and Reclamation (“OSM”) permit concerning coal mining.

The Black Mesa Water Coalition (“BM”) challenged a permit revision that the OSM granted. An administrative law judge (“ALJ”) granted a summary decision for one challenge brought by an individual. The ALJ subsequently dismissed the remaining petitions as moot. A party who had its petition dismissed petitioned OSM for costs and expenses.  The ALJ dismissed the petition, deciding that BM was not eligible because its specific challenge had not been successful. On appeal, the ruling was affirmed by the district court.

The Ninth Circuit reversed the decision and remanded the case. The Ninth Circuit noted that the Surface Mining Control and Reclamation Act has an administrative fee award provision that allows parties to recover costs and expenses. Under the rules, such fees may be awarded to parties who prevail “in whole or in part, achieving at least some degree of success on the merits.” 43 C.F.R. section 4.1294(b). The Ninth Circuit concluded that because one of the individuals succeeded, this was enough to show that BM participated and achieved “some degree of success.”