COALEX REPORT 120

	Coalex Report 120

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 - 120
July 18, 1989

Diana J. Stares, Esquire
Department of Environmental Resources
1303 Highland Building
121 S. Highland Avenue
Pittsburgh, Pennsylvania 15206

TOPIC: ATTORNEYS' FEES

INQUIRY: Are there any federal or state cases on the following: 1) award of attorneys' fees to
surface mining operators as a result of a challenge to a permit decision; 2) address recovery of
attorneys' fees by litigants against a governmental agency; or 3)discuss Sec. 525(e) of the
Surface Mining Control and Reclamation Act of 1977 (SMCRA) or 43 CFR 4.2190 et seq.?

SEARCH RESULTS: Research was conducted using the COALEX Library and the federal and state
caselaw materials on LEXIS. The decisions retrieved as a result of the research are listed below.
Copies are attached.

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

FEDERAL JUDICIAL DECISIONS

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).


RUCKELSHAUS v SIERRA CLUB, 463 U.S. 680 (1983). 
   By its ruling on Sec. 307(f) of the Clean Air Act, the Court modified the traditional definition of
"such award is appropriate" to mean that "some degree of success on the merits be obtained
before a party becomes eligible for a fee award". The traditional rule had been that a "fee
claimant must 'prevail' before it may recover attorney's fees."


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".   


BLUM v STENSON, 104 S.Ct. 1541 (1984).
   The Supreme Court held: "(1) 'reasonable fees' in federal civil rights action are to be calculated
according to prevailing market rates in relevant community...; (2) court is authorized...to allow
prevailing party upward adjustment in attorney fees in cases of exceptional success...."


COPELAND v MARSHALL, 641 F.2d 880 (D.C. Cir. 1980).
   The court determined that: "(1) attorneys should be compensated for market value of services
rendered rather than on a 'cost-plus' basis [this is 'lodestar': the number of hours reasonably
expended multiplied by a reasonable hourly rate]...; (2) fees should be calculated no differently
when the government rather than a private party is the losing defendant...."


UTAH INTERNATIONAL INC. v DEPARTMENT 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".


STATE JUDICIAL DECISIONS

HARDY v COMMONWEALTH OF PENNSYLVANIA, 101 Pa. Commw. 1 (1986).
The denial of petitioners' application for attorney's fees by the Environmental Hearing Board was
affirmed. The court concluded that: "the Costs Act has no application to the Department [of
Environmental Resources]'s denial of a private request for revision of an official sewage disposal
plan because the Department in no fair way can be said to have initiated such action."     


FEDERAL ADMINISTRATIVE DECISIONS

The Interior Administrative Law Judge (ALJ), Board of Surface Mining Appeals (IBSMA) and Board
of Land Appeals (IBLA) decisions listed here apply the federal case findings described above to
federal administrative proceedings.

VIRGINIA CITIZENS FOR BETTER RECLAMATION, 88 IBLA 126, IBLA 84-838 (1985).

DONALD ST. CLAIR, 84 IBLA 236 (1985).

COUNCIL OF THE SOUTHERN MOUNTAINS, INC. v OSM, 3 IBSMA 44, IBSMA No. 80-34 (1981).

DENNIS R. PATRICK v OSM, 1 IBSMA 248, Appeal No. IBSMA 79-21 (1979).

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).

ALTERNATE FUELS, INC. v OSM, Docket No. TU 5-23-R (1985).

DELTA MINING CORP., 3 IBSMA 252, IBSMA 81-60 (1981).


STATE ADMINISTRATIVE DECISIONS 

The following decisions from the Pennsylvania Environmental Hearing Board apply the federal
judicial and administrative findings to Pennsylvania administrative proceedings.

JAY TOWNSHIP v COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL
RESOURCES, EHB Docket No. 82-300-W (1987).

KWALWASSER v COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL
RESOURCES, EHB Docket No. 84-108-M (1988).

SHEESLEY v COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL
RESOURCES, EHB Docket No. 81-061-H (1982).


ATTACHMENTS
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 DEPARTMENT OF INTERIOR, 643 F.Supp. 810 (D. Utah
     1986).
G.   HARDY v COMMONWEALTH 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).


Research conducted by: Joyce Zweben Scall

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