M.L. Johnson Family Props., LLC v. Bernhardt
| Decision Date | 16 October 2020 |
| Docket Number | CIVIL ACTION NO. 7:16-6-KKC-EBA |
| Parties | M.L. JOHNSON FAMILY PROPERTIES, LLC, Plaintiff, v. DAVID BERNHARDT, Secretary of the Interior, Defendant, And PREMIER ELKHORN COAL LLC, Defendant-Intervenor. |
| Court | U.S. District Court — Eastern District of Kentucky |
This matter is before the Court on motions for attorneys' fees. Plaintiff M.L. Johnson Family Properties, LLC ("Johnson") brought suit in this Court, seeking judicial review of an administrative decision. (DE 1.) The Court affirmed the underlying administrative decision, denied Johnson's summary judgment motion, and granted summary judgment for Defendant David Bernhardt1, Secretary of the Interior, and Defendant-Intervenor Premier Elkhorn Coal LLC ("Elkhorn"). (DE 85; DE 86.) Johnson appealed. (DE 91.) The United States Court of Appeals for the Sixth Circuit affirmed this Court's ruling. M.L. Johnson Family Properties, LLC v. Bernhardt, 924 F.3d 842 (2019). Following the decision of the Sixth Circuit, bothJohnson and Elkhorn filed motions for attorneys' fees. (DE 119; DE 120.) For the reasons stated below, the Court denies both Johnson's and Elkhorn's motions.
The owners of Tract 46—a plot of land in Pike County, Kentucky—disagree over the mining of the land's coal. One cotenant, Pike Letcher Land Company, conveyed a right to enter and surface mine coal to its affiliate entity, Defendant-Intervenor Elkhorn. Kentucky approved Elkhorn's permit to surface mine.
In a separate litigation, Johnson successfully challenged the permit. It filed suit in this Court, alleging that Elkhorn's permit was invalid under the Surface Mining Control and Reclamation Act of 1977 ("SMCRA"), and the Court ordered the mining operations to stop, pending an inspection by the Secretary of the Interior. The Office of Surface Mining Reclamation and Enforcement ("OSMRE"), an arm of the Secretary, ultimately found the permit invalid and issued a cessation order prohibiting Elkhorn from continuing to surface mine Tract 46. Elkhorn then revised its permit, curing the problems that OSMRE identified through its inspection. The Kentucky Energy and Environment Cabinet, which administers Kentucky's mining regulatory program pursuant to SMCRA's cooperative framework, agreed that Elkhorn's right to surface mine complied with the applicable subsection of the statute and approved the revised permit. Following that determination, the OSMRE terminated the cessation order, allowing Elkhorn to continue surface mining.
Johnson challenged the termination decision through the Department of the Interior's administrative process, but on October 30, 2015, an administrative law judge ("ALJ") upheldthe termination decision. On November 23, 2015, Johnson appealed the ALJ's decision before the Interior Board of Land Appeals ("IBLA").
While its appeal in front of the IBLA was pending, Johnson sought judicial review of the ALJ's decision in this Court on January 15, 2016. (DE 1.) Johnson did so pursuant to 30 U.S.C. § 1276(a)(2), which subjects certain Secretary-issued orders and decisions to judicial review. See 30 U.S.C. § 1276(a)(2). Thereafter, the Secretary moved for judgment on the pleadings (DE 35), while Elkhorn intervened (DE 11) and moved to dismiss the complaint for lack of subject-matter jurisdiction (DE 36). Both motions argued that the Court lacked jurisdiction to review the ALJ's decision because Johnson had not yet obtained a final decision and therefore, had not properly exhausted its administrative remedies. (DE 35-1 at 5-7; DE 36-1 at 4-8.) On February 15, 2017, the Court denied the defendants' motions, concluding that the Court had subject-matter jurisdiction because Johnson had "exhausted its remedies to the extent the agency's regulations require." M.L. Johnson Family Properties, LLC v. Jewell, 237 F. Supp. 3d 528, 548 (E.D. Ky. 2017). The Sixth Circuit affirmed. Johnson, 924 F.3d at 848-49.
On March 21, 2018, the Court ruled on the parties' motions for summary judgment. (DE 85; DE 86.) The Court found that the ALJ's decision was not arbitrary, capricious, or in violation of the law, and granted summary judgment for the Secretary and Elkhorn. (DE 85 at 27.) The Sixth Circuit affirmed that ruling on May 15, 2019. Johnson, 924 F.3d at 856.
Despite the outcome, on November 4, 2019, Johnson filed a motion for attorneys' fees and nontaxable expenses, requesting the Secretary to pay a portion of the costs and expenses incurred in connection with the judicial review proceeding. (DE 119.) Elkhorn subsequently filed a motion for attorneys' fees incurred during the same proceeding. (DE 120.) Both parties filed their motions pursuant to 30 U.S.C. § 1275(e).
Although "under the American Rule . . . each party bears its own fees[,] Congress has . . . carved out specific exceptions to the rule." Griffin Indus., Inc. v. U.S. E.P.A., 640 F.3d 682, 685 (6th Cir. 2011) (internal citations omitted). Some of these exceptions "allow the award of fees to any party whenever the court or agency determines an award to be appropriate"—known as "'whenever appropriate' statutes." W. Va. Highlands Conservancy, Inc. v. Norton, 343 F.3d 239, 244 (4th Cir. 2003). A court should not award fees under a "whenever appropriate" statute unless the claimant achieved "some degree of success on the merits." Ruckelshaus v. Sierra Club, 463 U.S. 680, 693-94 (1983). While the "requisite success" must "be more than 'trivial' or 'purely procedural,' . . . the court awarding the fees should not become mired in details such as whether the success is 'substantial' or on a 'central issue.'" Sierra Club v. E.P.A., 769 F.2d 796, 800 (D.C. Cir. 1985) (citing Ruckelshaus, 463 U.S. at 688 n.9).
"SMCRA's fee-shifting provision, 30 U.S.C. § 1275(e), which is before us today, fits in th[is] 'whenever appropriate' category." Norton, 343 F.3d at 244. 30 U.S.C. § 1275(e) provides:
Whenever an order is issued under this section, or as a result of any administrative proceeding under this chapter, at the request of any person, a sum equal to the aggregate amount of all costs and expenses (including attorney fees) as determined by the Secretary to have been reasonably incurred by such person for or in connection with his participation in such proceedings, including any judicial review of agency actions, may be assessed against either party as the court, resulting from judicial review or the Secretary, resulting from administrative proceedings, deems proper.
30 U.S.C. § 1275(e) ().
Johnson first argues that the court should award it fees because it "achieved 'some degree of success on the merits'" by securing Elkhorn's agreement to provide 60 days' noticebefore Elkhorn would resume mining Tract 46. (DE 119-2 at 8.) Proof of this promised notice period seemingly appears as a statement within a minute entry for a status conference, during which Elkhorn "averred that it has no immediate plans to begin mining on Tract 46" and that "[i]n the event that Premier Elkhorn decides to begin mining Tract 46, Premier Elkhorn stated that it would provide the Court and Plaintiff M.L. Johnson with notice thirty days prior to the beginning of any mining operations." (DE 76; see also DE 129 at 8-9.)
There is no basis on which the Court could find that a mere statement3 might constitute success on the merits. Attempting to support this position, Johnson claims that M.L. Johnson Family Properties, LLC, 195 IBLA 1 (2019) is "res judicata with respect to the issue of Johnson's achievement of success on the merits in opposing termination of OSMRE's cessation order." (DE 119-2 at 8.)4 It is unclear how that administrative decision is instructive here. As the IBLA found, by vacating—solely on jurisdictional grounds—a prior ALJ order that terminated the cessation order, the IBLA effectively sustained the cessation order; thus, "even though the Board did not reach the merits of the legal arguments made by Johnson, the fact that mining continued to be prohibited on Tract 46 as a result of our order is consistent with the relief sought by Johnson: the prevention of mining." Id. at 8 (emphasis added).5 Here, Johnson can identify no similar order carrying the force of law, issued by acourt, in this immediate litigation, that granted it similar "partial success" that was "consistent with the relief sought." Id. Forced to rely on Elkhorn having "voluntarily agreed to forego further mining," Johnson has no effective response to the Secretary's charge that "nothing in this case extended the life of OSMRE's cessation order." (DE 134 at 2-3 (emphasis added).) Johnson's references to the "voluntary interlocutory relief" (DE 134 at 1) and "de facto interlocutory injunction" (DE 134 at 2) are thin lexical veils over reality. Johnson cannot prove victory on the merits of this litigation sufficient to satisfy the applicable standard.
Johnson next argues that its "successful defense of this Court's statutory authority to conduct judicial review separately satisfies the 'whenever appropriate' standard." (DE 119-2 at 9.) Johnson is seemingly referencing the Court's prior denials of the Secretary's motion for judgment on the pleadings and Elkhorn's motion to dismiss for lack of subject-matter jurisdiction (DE 45), and, perhaps also, the Sixth Circuit's later affirmance that Johnson had exhausted its administrative remedies before filing the action in federal court, see Johnson, 924 F.3d at 848-49.6 Johnson insists that "justiciability of an action is the most fundamental claim of merit that a litigant makes" (DE 119-2 at 9); that judicial review of an ALJ's decision "would have had no 'merit' at all" had Johnson not, as the Department of the Interior'sregulations require, pursued the administrative review process until that decision became final and subject to judicial review (DE 134 at 4-5); and that "this Court's decision to reject...
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