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West Virginia Highlands Conservancy v. Kempthorne, 569 F.3d 147, 4th Cir. (2009)
West Virginia Highlands Conservancy v. Kempthorne, 569 F.3d 147, 4th Cir. (2009)
No. 07-2189
COUNSEL
ARGUED: John Emad Arbab, UNITED STATES DEPARTMENT OF JUSTICE, Environment & Natural Resources
Division, Washington, D.C., for Appellant. Walton Davis
OPINION
MICHAEL, Circuit Judge:
This appeal stems from the Interior Board of Land
Appeals (IBLA or Board) determination that the West Virginia Highlands Conservancy (WVHC) was not eligible for
attorneys fees after prosecuting an administrative appeal to
the IBLA. In the administrative appeal WVHC had challenged a decision of the Office of Surface Mining Reclamation and Enforcement (OSM) that rejected a citizen complaint
filed by WVHC with the agency. The appeal resulted in an
IBLA remand order directing OSM to perform certain regulatory duties, including an investigation into whether it was
required to reassert regulatory jurisdiction over a particular
surface mining reclamation site pursuant to the Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30
U.S.C. 1201 et seq. After the IBLA denied WVHCs petition for attorneys fees in connection with the appeal, WVHC
sought review of the denial in district court. The district court
granted summary judgment to WVHC, holding that WVHC
was eligible for an award of fees under SMCRAs fee-shifting
provision. We affirm.
I.
A person adversely affected by a surface mining operation
may file a citizen complaint with OSM when he believes a
meet applicable effluent limitations and water quality standards." WVHC, 165 I.B.L.A. at 398. OSM, relying on the
decision of an administrative law judge (ALJ) in an unrelated
LaRosa case, concluded that OSMs regulatory jurisdiction
over a mining site did not terminate upon the states release
of a reclamation bond. See id. OSM therefore undertook its
own investigation of the allegations in WVHCs citizen complaint.
OSM inspected the LaRosa site on November 17, 1994.
SMCRAs implementing regulations establish effluent limitations for acid mine drainage, including maximum allowable
daily levels and average monthly levels for pH and iron. 30
C.F.R. 715.17(a). OSM sampled pH and iron levels at four
locations at the LaRosa site. The samples showed pH levels
within the effluent limitations required by the regulations. But
one of the three iron samples showed 4.0 milligrams per liter
of iron, which is above the average monthly limitation of 3.5
milligrams per liter (even though it is within the maximum
daily limit of 7.0 milligrams per liter). 30 C.F.R. 715.17(a);
WVHC, 165 I.B.L.A. at 399. OSM declined to take any further action on the citizen complaint, however. WVHC, 165
I.B.L.A. at 399. In its decision issued May 15, 1995, OSM
explained that:
The requested actions raise significant issues with
respect to the agencys implementation of the Clean
Water Act. . . . OSM is deferring action at this time
on these issues to allow an opportunity for policy
review and outreach. The outreach concerning
enforcement of the Clean Water Act requirements
had been initiated with the intent of reaching final
agency positions regarding these policies within [an]
180-day period . . . . Thus, it would be premature for
[the Field Office] to go forward in the manner that
you have requested until this process has been completed.
Id. at 399-400.
WVHC appealed OSMs decision to the IBLA, arguing
principally that OSM had erred in failing to take additional
iron samples in order to calculate monthly average iron levels.
Id. at 400. In its opinion the IBLA indicated that it was
inclined to agree with WVHC that "the pendency of a request
for programmatic relief does not excuse OSM from acting
independently on inspection requests." Id. at 401. The Board,
however, concentrated on a different issue: the question of
whether OSM had jurisdiction over the LaRosa site. Id. After
OSMs May 15, 1995, decision to take no further action on
WVHCs citizen complaint, but before WVHCs appeal of
that decision to the IBLA, the Board reversed the ALJs determination (in the unrelated LaRosa case) that OSMs regulatory jurisdiction continued despite the full release of a
performance bond by a state regulatory authority. Id. at 402
(citing LaRosa Fuel Co., Inc. v. OSM, 134 I.B.L.A. 334
(1996)). In reversing the ALJ in LaRosa Fuel, the IBLA held
that "the State is granted exclusive jurisdiction upon approval
of a State regulatory program . . . to determine when reclamation under the initial regulatory program has been completed."
Id. at 402. According to the IBLA, West Virginias written
finding in a bond release that a mining operation complied
with all state rules and regulations terminates both the states
jurisdiction and OSMs oversight jurisdiction regardless of
whether OSM agrees with the finding. Id. The IBLA noted
one exception to this rule: OSM must exercise jurisdiction if
it finds "that the written determination was based on fraud,
collusion, or misrepresentation of a material fact." Id. at 405
(quoting LaRosa Fuel, 134 I.B.L.A. at 346); see also 30
C.F.R. 700.11(d)(2).
The IBLAs LaRosa Fuel decision prompted the Board to
raise, on its own initiative, the question of OSMs jurisdiction
to entertain WVHCs citizen complaint. The Board explained
that OSM would lack jurisdiction to take further action if reclamation requirements at the LaRosa site had been success-
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