Utah Intern., Inc. v. Department of Interior

• Decision Date: 29 August 1986
• Docket Number: C-81-0172W.,Civ. No. C-81-0090W
• Citation: 643 F. Supp. 810
• Parties: UTAH INTERNATIONAL INC., a corporation, and Nevada Electric Investment Company, a corporation, Plaintiffs, v. The DEPARTMENT OF the INTERIOR of the United States; William P. Clark, Secretary of the Interior; the Office of Surface Mining; Richard Harris, Director of the Office of Surface Mining; the Environmental Defense Fund; Friends of the Earth; the Sierra Club; Sylvan Johnson; Leon Lippincott; Caroline Lippincott; Jet Mackelprang; Cynthia Myers; Susan Hittson; Larry Little; Gary A. Kalpakoff; Joan A. Kalpakoff; and East Canyon Irrigation Company. SIERRA CLUB, a non-profit corporation; Friends of the Earth, a non-profit corporation; Jet Mackelprang; Cynthia Myers; Susan Hittson; and Caroline Lippincott, Plaintiffs, v. Donald P. HODEL, et al., Defendants.
• Court: U.S. District Court — District of Utah

643 F. Supp. 810

UTAH INTERNATIONAL INC., a corporation, and Nevada Electric Investment Company, a corporation, Plaintiffs, v. The DEPARTMENT OF the INTERIOR of the United States; William P. Clark, Secretary of the Interior; the Office of Surface Mining; Richard Harris, Director of the Office of Surface Mining; the Environmental Defense Fund; Friends of the Earth; the Sierra Club; Sylvan Johnson; Leon Lippincott; Caroline Lippincott; Jet Mackelprang; Cynthia Myers; Susan Hittson; Larry Little; Gary A. Kalpakoff; Joan A. Kalpakoff; and East Canyon Irrigation Company.

SIERRA CLUB, a non-profit corporation; Friends of the Earth, a non-profit corporation; Jet Mackelprang; Cynthia Myers; Susan Hittson; and Caroline Lippincott, Plaintiffs, v. Donald P. HODEL, et al., Defendants.

Civ. Nos. C-81-0090W, C-81-0172W.

United States District Court, D. Utah, C.D.

August 29, 1986.

Ronald E. Van Buskirk, David W. Trotter, San Francisco, Cal., F. Alan Fletcher, Salt Lake City, Utah, for Utah Intern. Inc. and Nevada Elec. Inv. Co.

William S. Curtiss, Sierra Club Legal Defense Fund, Inc., San Francisco, Cal., Wayne G. Petty, Salt Lake City, Utah, for Sierra Club, Friends of the Earth, Jet Mackelprang, Susan Hittson, Cynthia Myers, and Caroline Lippincott.

Joseph Anderson, Asst. U.S. Atty., Salt Lake City, Utah, Alfred T. Ghiorzi, Dept. of Justice, Land and Natural Resources Div., Washington, D.C., for U.S. Dept. of Interior; James G. Watt, Secretary of the Interior; The Office of Surface Mining; Andrew V. Bailey, Acting Director of the Office of Surface Mining.

David Mastbaum, Boulder, Colo., William J. Lockhart, Wayne McCormack, Salt Lake City, Utah, John Krautkraemer, Berkeley, Cal., William Bennett Turner, Elizabeth D. Laporte, San Francisco, Cal., for The Environmental Defense Fund, Sylvan Johnson, Leon Lippincott, Larry Little, Gary A. Kalpakoff, Joan A. Kalpakoff and East Canyon Irr. Co.

MEMORANDUM DECISION AND ORDER

WINDER, District Judge.

This matter is before the court on defendants' motions for attorney's fees. Defendants, Environmental Defense Fund ("EDF") and Sierra Club ("Sierra") filed motions with supporting declarations for an award of fees, costs and expenses from the United States. The United States objected. The court heard oral argument on October 25, 1985. David Mastbaum and William J. Lockhart appeared on behalf of defendant EDF. William S. Curtiss and Wayne G. Petty appeared on behalf of defendant Sierra. Alfred T. Ghiorzi appeared on behalf of the United States Department of the Interior and the other federal defendants. Following oral argument, the court took the matter under advisement. After further considering the arguments of counsel, the declarations filed in conjunction with the supporting and opposing memoranda, the memoranda and the relevant authority, the court now renders the following decision and order.

I. Background

On July 25, 1985, the EDF defendants filed a petition for attorney's fees, expert witness fees, costs and expenses in the amount of $500,113.04.¹ On July 31, 1985, the Sierra defendants² filed a petition for $189,033.23 in attorney's fees and other expenses.³ Both EDF and Sierra sought the fee awards from the United States.⁴ On October 4, 1985, the United States filed a memorandum opposing the fee applications of EDF and Sierra. The question of EDF's and Sierra's entitlement to collect fees and expenses from the government is the issue we must address.

EDF's and Sierra's involvement in these cases dates back to November 28, 1979 when EDF and Sierra, along with other groups and individuals, filed a petition with the Office of Surface Mining Reclamation and Enforcement ("OSM") and the U.S. Department of the Interior ("Interior") requesting that certain lands abutting Bryce Canyon National Park and Dixie National Forest be designated unsuitable for surface coal mining operations (the "unsuitability petition"). The unsuitability petition was submitted pursuant to section 522 of the Surface Mining Control and Reclamation Act ("SMCRA"), 30 U.S.C. § 1272, which establishes a process whereby certain lands may be designated by the Secretary of the Interior ("Secretary") as "unsuitable for all or certain types of surface coal mining operations."

The decision on the unsuitability petition was made in December of 1980 when then Secretary of the Interior, Cecil B. Andrus, issued a decision designating an area east and south of Bryce Canyon National Park as unsuitable for surface coal mining operations.⁵ In designating the area unsuitable for mining, the Secretary based his decision on a finding that surface coal mining operations would substantially impair public use and enjoyment of Bryce Canyon National Park.⁶

Three separate lawsuits challenging the Secretary's decision were filed, and counterclaims and cross-claims were brought by some of the parties. Two of these lawsuits concern us here.⁷

In Utah International, Inc. and Nevada Electric Investment Company v. Department of the Interior, et al., Civil Action No. C-81-0090W, Utah International ("UII") and Nevada Electric, which had planned to mine the designated area, sought a permanent injunction enjoining Interior from implementing or enforcing the designation decision. They also sought an order from the court declaring the decision arbitrary, capricious, inconsistent with law, in excess of jurisdiction and unsupported by substantial evidence in the record. EDF, Sierra, and the United States were named defendants in this suit.

EDF filed an Answer, Counterclaims and Cross-Claims. The Answer denied the germane allegations of the complaint and alleged that, after the designation petition was filed, UII made several ex parte communications with Interior officials which estopped UII from challenging the designation. EDF advanced counterclaims against the plaintiffs and cross-claims against the United States. The cross-claims generally objected to the Secretary's refusal to include in the unsuitability designation the entire area described in the original petition. Sierra also filed an Answer, Cross-claims and Counterclaims. Sierra's cross-claims against the United States likewise alleged that the Secretary erred in refusing to designate additional portions of the petition area.

On March 13, 1981, Sierra filed Sierra Club v. Watt, Civil Action No. C-81-0172W, which repeated the allegations of Sierra's cross-claims against the United States in the Utah International action. Sierra sought the following relief:

1. That the Court declare the portion of the Secretary's decision, which failed to designate the entire petition area unsuitable for surface coal mining operations, to be:

a. Arbitrary and capricious, in violation of Section 526(a) of the Surface Mining Control and Reclamation Act;

b. Contrary to the requirements of Section 522(a) of the Surface Mining Control and Reclamation Act;

c. In violation of the Secretary's statutory trust obligations to preserve and protect Bryce Canyon National Park and the public enjoyment thereof; and

d. Contrary to Section 102(2) of the National Environmental Policy Act ("NEPA").

2. That the Court issue an order vacating such portion of the Secretary's decision.

3. That the Court issue an injunction against the Federal defendants;

a. Requiring that a supplement to the final environmental statement or other interdisciplinary, integrated analysis be prepared which fully meets the requirements of NEPA;

b. Restraining them from implementing any portion of the Secretary's decision insofar as it failed to designate any portion of the rejected area as unsuitable for surface coal mining operations; and

c. Requiring them to issue an amended decision on the petition as it concerns the rejected area.

In September of 1981, more than six months after the initiation of judicial review, the United States moved this court for an order remanding the entire Andrus' unsuitability designation for reconsideration by then Secretary of the Interior, James Watt. UII and Nevada Electric supported the remand request. EDF and Sierra opposed it. On January 27, 1982, this court denied the motion to remand in a one-page summary order.

Following this court's denial of the remand motion, the parties filed motions and cross-motions for summary judgment. On December 28, 1982, this court issued a decision upholding the unsuitability designation against various procedural and substantive challenges made by UII and the State of Utah.⁸

Following the summary judgment decision, the parties engaged in negotiations which ultimately led to the voluntary dismissal of most of their claims. EDF, however, retained its claim concerning the effects of surface coal mining operations on the water resources of the petition and adjacent areas (the "hydrology claim").

In February of 1985, a stipulated agreement was reached among EDF, the United States, UII and the other petitioners resolving EDF's hydrology claim. This stipulation was approved by the court on February 12, 1985. See note 33, supra. On April 29, 1985, UII's claim that the designation decision constituted an unconstitutional taking was dismissed in accordance with UII's earlier representations. The court entered final judgment in the cases on June 26, 1985. See note 11, supra.

EDF and Sierra assert their claims for fees and costs under two alternate theories. They first allege that they are entitled to an award under Section 525(e) of SMCRA, 30 U.S.C. § 1275(e). They specifically seek attorney and expert witness fees, costs and expenses both for their participation in the administrative proceedings leading to the unsuitability designation and for their participation in the subsequent judicial proceedings.⁹

In the alternative, EDF and Sierra argue that, should the court deny their petitions for fees under SMCRA, they are entitled to an award of fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, for the time they spent in opposing the United...