West Virginia Highlands Conservancy v. Norton

• Decision Date: 03 September 2003
• Docket Number: No. 02-2375.,02-2375.
• Citation: 343 F.3d 239
• Parties: WEST VIRGINIA HIGHLANDS CONSERVANCY, INCORPORATED; National Wildlife Federation, Plaintiffs-Appellees, v. Gale A. NORTON, Secretary of the Interior, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

343 F.3d 239

WEST VIRGINIA HIGHLANDS CONSERVANCY, INCORPORATED; National Wildlife Federation, Plaintiffs-Appellees, v. Gale A. NORTON, Secretary of the Interior, Defendant-Appellant.

No. 02-2375.

United States Court of Appeals, Fourth Circuit.

Argued: June 5, 2003.

Decided: September 3, 2003.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Katherine W. Hazard, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., for Appellant. Walton Davis Morris, Jr., Morris Law Office, P.C., Charlottesville, Virginia, for Appellees.

ON BRIEF:

Thomas L. Sansonetti, Assistant Attorney General, Todd S. Kim, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Rodney Vieira, Wayne A. Babcock, Office of the Solicitor, Department of the Interior, Washington, D.C., for Appellant. Charles M. Kincaid, Huntington, West Virginia, for Appellees.

Before MICHAEL, MOTZ, and KING, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge MICHAEL wrote the opinion, in which Judge DIANA GRIBBON MOTZ and Judge KING joined.

OPINION

MICHAEL, Circuit Judge:

This appeal takes origin in a citizen complaint filed by the West Virginia Highlands Conservancy, Inc. and the National Wildlife Federation (collectively, "WVHC") with the Department of the Interior's Office of Surface Mining Reclamation and Enforcement (OSM). The complaint alleged that a mining company was violating provisions of the Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C. §§ 1201 et seq. OSM rejected the complaint, and WVHC appealed to the Interior Board of Land Appeals (the Board). The Board remanded the case to OSM for the development of an adequate record and a new agency decision. After the Board denied WVHC attorney fees for its work in the administrative appeal, WVHC sought review of the Board's fee-denial decision in U.S. district court. The district court granted summary judgment to WVHC holding that WVHC had earned fees because it had achieved "at least some degree of success on the merits" and had "made a substantial contribution to a full and fair determination of the issues." 43 C.F.R. § 4.1294(b). We affirm the district court's award of summary judgment in part, specifically, to the extent the court concluded that WVHC achieved some success because the Board-ordered remand advanced SMCRA's goals by requiring OSM to fulfill its duty to give proper consideration to citizen complaints. However, since the Board must decide in the first instance the factual issue of whether WVHC made a substantial contribution toward achieving the Board-ordered remand, we vacate the summary judgment in favor of WVHC on this issue. The case will be remanded to allow the Board to make a finding on the substantial contribution issue.

I.

WVHC began this controversy by filing a citizen complaint, alleging a SMCRA violation, with OSM's Charleston, West Virginia, Field Office. Congress enacted SMCRA to, among other things, "establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations." 30 U.S.C. § 1202(a). SMCRA is designed in part to "assure that appropriate procedures are provided for the public participation in the development, revision, and enforcement of regulations, standards, reclamation plans, or programs established by the Secretary or any State under [the Act]." Id. § 1202(i). One of the "appropriate procedures" to assure public participation in enforcing SMCRA standards allows any adversely affected person to notify OSM of the existence of a SMCRA violation at any surface mining operation. Id. § 1267(h). The notification is commonly known as a "citizen complaint." If a citizen complaint gives OSM reason to believe that a violation is taking place, the agency first issues a "ten-day notice" to the appropriate state regulatory authority (the state). Id. § 1271(a)(1); 30 C.F.R. § 842.11(b)(1)(ii)(B). This notice gives the state the opportunity to deal with any violation and to respond to OSM. OSM considers the state's response and determines whether the state has taken "appropriate action to cause the violation to be corrected" or has shown good cause for not taking action. 30 C.F.R. § 842.11(b)(1)(ii)(B)(1). If the state's response is inadequate, OSM (through its field office) must conduct its own inspection. 30 U.S.C. § 1271(a)(1); 30 C.F.R. § 842.11(b)(1)(ii)(B)(1). If the OSM field office accepts the state's response as appropriate (and thereby declines to conduct a federal inspection), the citizen complainant may seek "informal review" with the Director of OSM or his designee. 30 C.F.R. § 842.15(a). The decision of the Director or his designee may be appealed to the Board. 30 C.F.R. § 842.15(d); 43 C.F.R. § 4.1281.

WVHC's citizen complaint alleged that Valley Camp Coal Co. (Valley Camp) owned or controlled Bufflick, Inc., a company holding the permit for a mine in Kanawha County, West Virginia, that was in violation of SMCRA's reclamation requirements. When a mine is in violation of SMCRA, any entity that owns or controls the mine or that owns or controls the permit holder for the mine must be blocked from receiving new mining permits, and its current permits must be rescinded. 30 U.S.C. § 1260(c); 33 C.F.R. § 773.21. The complaint sought to have Valley Camp's permits rescinded because of the violations at Bufflick's mine. The complaint also alleged that Valley Camp violated SMCRA by failing to disclose its ownership or control of Bufflick in its own permit applications. See id. § 1257(b)(4).

Upon receiving WVHC's complaint, OSM's Charleston Field Office issued a ten-day notice to the state (the West Virginia Department of Environmental Protection). The state responded to the notice by saying that it found no ownership or control link between Valley Camp and Bufflick. The OSM field office considered the state's response and "found it to be appropriate." WVHC sought informal review of the field office decision with the Director's designee, an Assistant Director, who affirmed the field office. The Assistant Director based his decision on what he called "the 2-page lease agreement between Valley Camp and Bufflick." WVHC filed an appeal with the Board, and OSM responded by moving for a remand. The agency sought a remand because it discovered that the document the Assistant Director had treated as a lease was merely a property description of premises covered by a sublease between Valley Camp and Bufflick. The actual sublease was not part of the record reviewed by the agency. OSM admitted that the Assistant Director's decision was "inadequately supported" and was "open to question with respect to its reliability." A remand, OSM said, would allow it "to develop an adequate record" and "make a fully informed decision" on the issue of any ownership or control relationship between Valley Camp and Bufflick. The Board granted the motion and vacated the Assistant Director's decision that had affirmed the field office decision accepting the state's assessment. This, the Board said, "put[] the matter back to the beginning of the informal review process."

On remand OSM referred the matter to its Applicant/Violator System Office (AVSO), which maintains the agency's database of companies and the connections between them. AVSO found no ownership or control connection between Valley Camp and Bufflick. WVHC appealed this finding, but withdrew the appeal when Valley Camp got out of the coal mining business. WVHC then petitioned the Board under 30 U.S.C. § 1275(e) for an award of attorney fees from OSM to cover the organization's first appeal to the Board, which resulted in the remand to OSM. The Board denied the fee petition on the ground that WVHC "failed to achieve any degree of success on the merits of [its citizen] complaint." Next, WVHC filed an action against Gale A. Norton, Secretary of the Interior, in the U.S. District Court for the Southern District of West Virginia, seeking judicial review of the Board's decision to deny attorney fees. (With the consent of the parties, the case was assigned to a magistrate judge for disposition. See 28 U.S.C. § 636(c).) The Secretary and WVHC filed cross-motions for summary judgment. The district court granted summary judgment to WVHC, holding that WVHC is entitled to an administrative award of costs and expenses, including attorney fees. The court remanded the matter to the Board for a determination of the amount to be awarded. The Secretary appeals.

II.

We first consider whether we have subject matter jurisdiction. Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338 (1934); Betty B Coal Co. v. Dir., Office of Workers' Comp. Programs, 194 F.3d 491, 495 (4th Cir.1999). The Secretary appeals from the district court's order of summary judgment (1) holding that WVHC should get attorney fees from OSM and (2) remanding the case to the Board for a determination of the amount. We have jurisdiction over appeals from final decisions of the district courts. 28 U.S.C. § 1291. "A district court's order remanding a case to an administrative agency is usually not a final, appealable decision under 28 U.S.C. § 1291." Hanauer v. Reich, 82 F.3d 1304, 1306 (4th Cir.1996). Nevertheless, "if a district court order remanding a case to an administrative agency will be effectively unreviewable after a resolution of the merits, the order is a final decision." Id. at 1306-07. The district court's summary judgment order remanded the case for the Board to make an award of fees in the appropriate amount. The Board awards and sets the fees because the Secretary has delegated to the Board "the authority to exercise the final decisionmaking power of the Secretary under the act pertaining to ... [p]etitions for [fee] awards." 43 C.F.R. § 4.1101(a)(7) (2002). Section 1276(a)(1) of SMCRA allows persons aggrieved by actions of the Secretary to petition for judicial review. 30...