ELR Citation: ELR 20121
No(s). 07-2189 (4th Cir. Jun 10, 2009)

The Fourth Circuit held that an environmental group was entitled to attorney fees in their action challenging an OSM decision that resulted in a remand to the agency for additional investigation. The group filed a citizen complaint with the OSM alleging that a reclaimed surface mining site, which had been authorized by a West Virginia permit, was violating effluent standards for acid mine drainage. OSM inspected the site but declined to take further action. The group then filed an administrative appeal before the Interior Board of Land Appeals (IBLA). The IBLA set aside OSM's decision to take no further action and remanded for OSM to determine whether jurisdiction terminated at the site and whether or not a basis for reasserting jurisdiction has been established under SMCRA. The group then sought attorney fees from OSM under SMCRA's fee-shifting provision. The IBLA denied their request. On appeal, the district court reversed. The Fourth Circuit affirmed the reversal. A party who obtains a remand order requiring an administrative agency to properly perform its regulatory duties has achieved some degree of success on the merits. Here, the IBLA's remand order required OSM to properly carry out its regulatory duty to determine whether it was required to reassert regulatory jurisdiction over the reclamation site. That achievement by the group amounts to some degree of success on the merits.