State ex rel. West Virginia Highlands Conservancy, Inc. v. West Virginia Div. of Environmental Protection

• Decision Date: 14 April 1995
• Docket Number: No. 22233,22233
• Citation: 458 S.E.2d 88,193 W.Va. 650
• Parties: STATE of West Virginia ex rel. WEST VIRGINIA HIGHLANDS CONSERVANCY, INC.; West Virginia Wildlife Federation; West Virginia Council, Trout Unlimited, Inc.; and West Virginia Citizen Action Group, Relators, v. WEST VIRGINIA DIVISION OF ENVIRONMENTAL PROTECTION and David C. Callaghan, Director of the West Virginia Division of Environmental Protection, in His Official Capacity, Respondents.
• Court: West Virginia Supreme Court

Page 88

458 S.E.2d 88

193 W.Va. 650

STATE of West Virginia ex rel. WEST VIRGINIA HIGHLANDS CONSERVANCY, INC.; West Virginia Wildlife Federation; West Virginia Council, Trout Unlimited, Inc.; and West Virginia Citizen Action Group, Relators, v. WEST VIRGINIA DIVISION OF ENVIRONMENTAL PROTECTION and David C. Callaghan, Director of the West Virginia Division of Environmental Protection, in His Official Capacity, Respondents.

No. 22233.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 31, 1995.

Decided April 14, 1995.

[193 W.Va. 651] Syllabus by the Court

1. Costs and attorney's fees may be awarded in mandamus proceedings involving public officials because citizens should not have to resort to lawsuits to force government officials to perform their legally prescribed nondiscretionary duties.

2. Attorney's fees may be awarded to a prevailing petitioner in a mandamus action in two general contexts: (1) where a public official has deliberately and knowingly refused to exercise a clear legal duty, and (2) where a public official has failed to exercise a clear legal duty, although the failure was not the result of a decision to knowingly disregard a legal command.

3. Where a public official has deliberately and knowingly refused to exercise a clear legal duty, a presumption exists in favor of an award of attorney's fees; unless extraordinary circumstances indicate an award would be inappropriate, attorney's fees will be allowed.

4. Where a public official has failed to exercise a clear legal duty, although the failure was not the result of a decision to knowingly disregard a legal command, there is no presumption in favor of an award of attorney's fees. Rather, the court will weigh the following factors to determine whether it would be fairer to leave the costs of litigation with the private litigant or impose them on the taxpayers: (a) the relative clarity by which the legal duty was established; (b) whether the ruling promoted the general public interest or merely protected the private interest of the petitioner or a small group of individuals; and (c) whether the petitioner has adequate financial resources such that petitioner can afford to protect his or her own interests in court and as between the government and petitioner.

5. Apportionment of attorney's fees is appropriate where some of the claims and efforts of the claimant were unsuccessful. Where part of the attorney's fees sought was expended on discrete efforts that achieved no appreciable advantage in the litigation, or where the claim for attorney's fees rests partly on a result to which the claimant made no significant contribution, a court may consider these circumstances and apportion the attorney's fees accordingly.

Patrick C. McGinley, Morgantown, and Phillip B. Scott, Carey, Hill & Scott, Charleston, for relators.

Darrell V. McGraw, Jr., Atty. Gen., and Joseph A. Lazell, Senior Asst. Atty. Gen., Charleston, for respondents.

CLECKLEY, Justice:

The relators in State ex rel. West Virginia Highlands Conservancy, Inc. v. West Virginia Division of Environmental Protection, 191 W.Va. 719, 447 S.E.2d 920 (1994) (Highlands I ), ¹ return to this Court seeking an award of attorney's fees and costs. Highlands I dealt with both a knowing disregard of a mandatory duty by the Division of Environmental Protection and issues that had not been previously addressed by this Court. Because the relators in this technically complex case are entitled to costs and attorney's fees for the part of their petition demonstrating a knowing disregard of a mandatory duty, we grant their request, in part, and award the relators $16,274.25, or one-half of their costs and attorney's fees.

I. FACTS AND PROCEDURAL HISTORY

Highlands I found that W.Va.Code, 22A-3-11(g) (1990), and 38 W.Va.C.S.R. § 2-12.4(d) (1991) impose "a mandatory, nondiscretionary duty" on the West Virginia Division of Environmental Protection (DEP) "to utilize moneys from the Special Reclamation Fund, up to 25% of the annual amount, to treat acid mine drainage at bond forfeiture sites when the proceeds from forfeited bonds are less than the actual cost of reclamation." Syl., in part, Highlands I. When such reclamation costs exceed the amounts available from the Special Reclamation Fund (SRF), the DEP "may expend the available funds in the Special Reclamation Fund at the highest priority sites." Syl., in part, Highlands I.

In Highlands I, we considered the provisions of the federal Surface Mining Control and Reclamation Act, 30 U.S.C. 1201, et seq., the West Virginia Surface Coal Mining and Reclamation Act, W.Va.Code, 22A-3-1, et seq., and the applicable regulations, namely, 30 C.F.R. § 948.15, et seq. and 38 W.Va.C.S.R. § 2, et seq. We also considered DEP's December 31, 1993, report to the Legislature concerning the reclamation costs of treating acid mine drainage (AMD) which exists at certain bond forfeiture sites. Highlands I, 191 W.Va. at 720-21, 447 S.E.2d at 921-22.

Based on the foregoing, Highlands I concluded "DEP has a mandatory, nondiscretionary duty to utilize moneys from the SRF, up to 25% of the annual amount, to treat AMD at bond forfeiture sites when the proceeds from forfeited bonds are less than the actual cost of reclamation." ² Highlands I, 191 W.Va. at 724, 447 S.E.2d at 925.

In Highlands I, we noted that State ex rel. Laurel Mountain/Fellowsville Area Clean Watershed Association v. Callaghan, 187 W.Va. 266, 418 S.E.2d 580 (1992), recognized "DEP has a duty to utilize the proceeds from forfeited bonds" for reclamation and "the use of forfeited bonds to complete reclamation 'operates to eliminate acid mine drainage at levels that would violate effluent limitations....' " Highlands I, 191 W.Va. at 723, 447 S.E.2d at 924, quoting Laurel Mountain, 187 W.Va. at 270, 418 S.E.2d at 584. (Footnote omitted). However, Laurel Mountain "did not address the question of whether the DEP has a mandatory, nondiscretionary duty to use funds from the SRF to treat AMD." Highlands I, 191 W.Va. at 724, 447 S.E.2d at 925. (Footnote omitted).

The original petition in Highlands I alleged DEP had the following duties: a duty to reclaim fully all forfeited sites; a duty to maintain the SRF with sufficient monies to complete reclamation "contemporaneously (with bond forfeiture proceeds)" at all bond forfeiture sites; and a duty to disclose fully the scope of DEP's "legally-mandated reclamation responsibilities and the insolvency of the SRF[.]" However, the relief granted in Highlands I was raised in the relators' reply brief. Highlands I, 191 W.Va. at 720 n. 1, 447 S.E.2d at 921 n. 1.

II. DISCUSSION

Nelson v. West Virginia Public Employees Insurance Board, 171 W.Va. 445, 451, 300 S.E.2d 86, 92 (1982), states that costs and attorney's fees will be awarded in mandamus proceedings involving public officials who "knowingly disregard their duty to faithfully execute the law." Such costs and attorney's fees are awarded because "[c]itizens should not have to resort to lawsuits to force government officials to perform their legally prescribed non-discretionary duties." 171 W.Va. at 451, 300 S.E.2d at 92. A public official's lack of intent to disregard a mandatory duty is insufficient to avoid such awards; rather, costs and attorney's fees are awarded upon evidence of a public official's "disregard for the mandatory provisions of [the] W.Va.Code[.]" 171 W.Va. at 451, 300 S.E.2d at 92. The term "willfully" in Syllabus Points 3 and 4 of Nelson does not require that a public officer act with a deliberate intention to "fail to obey the law"; ³ rather, public officers are simply required to understand and perform their clear duties.

However, the showing of a "clear right" to a writ of mandamus "does not automatically shift a petitioner's costs and attorneys' fees onto the public officer involved. Although some disingenuous hindsight rule would be easy to apply, accurate predictions of court decisions are not a requirement for" public officers. State ex rel. McGraw v. Zakaib, 192 W.Va. 195, 198, 451 S.E.2d 761, 764 (1994).

When a public officer acted with a deliberate intention to fail to obey the law, costs and attorney's fees have been awarded. See Nelson, supra (the public employees insurance board knew the law provided for extended coverage but, without justification, allowed participation for only a limited time); Meadows v. Lewis, 172 W.Va. 457, 476, 307 S.E.2d 625, 644 (1983) ("commissioner's clear and systematic failure to abide by statutory mandate satisfie[d] the willfulness requirement imposed by Nelson "); Syl. pt. 1, State ex rel. Lambert v. Cortellessi, 182 W.Va. 142, 386 S.E.2d 640 (1989) (county commission arbitrarily fixed a county officer's budget without complying with W.Va.Code, 7-7-7 (1982), requirement to "give due consideration to the duties, responsibilities and work required"); State ex rel. Bd. of Educ., County of Kanawha v. McCuskey, 184 W.Va. 615, 403 S.E.2d 17 (1991) (state officials should promptly pay overdue monies owed from the State Department of Education for State Aid to Schools Fund); DePond v. Gainer, 177 W.Va. 173, 198, 351 S.E.2d 358, 384 (1986), overruled on other grounds, Harshbarger v. Gainer, 184 W.Va. 656, 403 S.E.2d 399 (1991) (although the matter was previously addressed in a similar case, respondent has a "perplexing hesitancy to perform legal obligations"); State ex rel. Bd. of Educ. v. Cavendish, 81 W.Va. 266, 268, 94 S.E. 149, 149 (1917) (Poffenbarger, J., concurring) (official disobeyed writ and "his return discloses contumacious conduct").

When a public official disregarded a clear, nondiscretionary duty, without a deliberate intent to avoid obeying the law, we have awarded costs and attorney's fees. See Meek v. Pugh, 186 W.Va. 609, 413 S.E.2d 666 (1991) (highest scoring fire department employee not promoted); State ex rel. Rose v. Raleigh County Bd. of Educ., 179 W.Va. 275 367 S.E.2d 223 (1988) (Board's argument previously raised and rejected...