PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WEST VIRGINIA HIGHLANDS
CONSERVANCY, INCORPORATED,
Plaintiff-Appellee,
v. No. 07-2189
DIRK KEMPTHORNE, Secretary of the
Interior,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Elkins.
Frederick P. Stamp, Jr., Senior District Judge.
(2:06-cv-00011-FPS)
Argued: March 25, 2009
Decided: June 10, 2009
Before MICHAEL, KING, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Michael wrote the
opinion, in which Judge King and Judge Agee joined.
COUNSEL
ARGUED: John Emad Arbab, UNITED STATES DEPART-
MENT OF JUSTICE, Environment & Natural Resources
Division, Washington, D.C., for Appellant. Walton Davis
2 WEST VIRGINIA v. KEMPTHORNE
Morris, Jr., MORRIS LAW OFFICE, PC, Charlottesville,
Virginia, for Appellee. ON BRIEF: Ronald J. Tenpas, Assis-
tant Attorney General, Aaron P. Avila, UNITED STATES
DEPARTMENT OF JUSTICE, Environment & Natural
Resources Division, Washington, D.C.; Wayne A. Babcock,
UNITED STATES DEPARTMENT OF THE INTERIOR,
Office of the Solicitor, Pittsburgh, Pennsylvania, for Appel-
lant. Mary Anne Maul, Charleston, West Virginia, for Appel-
lee.
OPINION
MICHAEL, Circuit Judge:
This appeal stems from the Interior Board of Land
Appeals’ (IBLA or Board) determination that the West Vir-
ginia Highlands Conservancy (WVHC) was not eligible for
attorneys’ fees after prosecuting an administrative appeal to
the IBLA. In the administrative appeal WVHC had chal-
lenged a decision of the Office of Surface Mining Reclama-
tion 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 regula-
tory duties, including an investigation into whether it was
required to reassert regulatory jurisdiction over a particular
surface mining reclamation site pursuant to the Surface Min-
ing Control and Reclamation Act of 1977 (SMCRA), 30
U.S.C. § 1201 et seq. After the IBLA denied WVHC’s peti-
tion 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 SMCRA’s 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
WEST VIRGINIA v. KEMPTHORNE 3
SMCRA violation is occurring at the mining site. 30 U.S.C.
§ 1267(h)(1). If OSM has reason to believe there is a viola-
tion, the agency issues to the appropriate state regulatory
authority what is known as a "ten-day notice." Id.
§ 1271(a)(1); 30 C.F.R. § 842.11(b)(1)(ii)(B). If ten days pass
and the state fails "to take appropriate action to cause [the]
violation to be corrected or to show good cause for such fail-
ure," OSM conducts its own inspection. 30 U.S.C.
§ 1271(a)(1); 30 C.F.R. § 842.11(b)(1)(ii)(B)(1).
On May 13, 1994, WVHC filed a citizen complaint with
OSM alleging that a reclaimed LaRosa Fuel Company
(LaRosa) surface mining site, which had been authorized by
a West Virginia permit, was violating effluent standards for
acid mine drainage. Iron levels were too high and pH levels
too low, according to WVHC. OSM filed a ten-day notice
with the state regulatory authority, the West Virginia Depart-
ment of Environmental Protection (DEP). The DEP declined
to take any action to investigate or remedy the alleged
SMCRA violation. In a letter to OSM, the DEP explained that
it no longer had regulatory jurisdiction over the LaRosa site:
as of October 10, 1983, the state agency had terminated juris-
diction over the site when it released the performance bond
covering reclamation work, which had been completed. The
DEP further reported to OSM that the release of the bond was
"not based on fraud, collusion, or misrepresentation of a mate-
rial fact." W. Va. Highlands Conservancy, 165 I.B.L.A. 395,
397 (May 13, 2005) [hereinafter WVHC]; see also 30 C.F.R.
§ 700.11(d)(2). Accordingly, the DEP declined to reassert
jurisdiction over the LaRosa site or to otherwise take any
action with respect to the violations alleged in WVHC’s citi-
zen complaint.
OSM rejected the DEP’s explanation, concluding that the
state agency had failed to take appropriate action. According
to OSM: "The [S]tate’s decision to release LaRosa’s perfor-
mance bond does not affect the State’s responsibility to take
enforcement action against LaRosa for its continued failure to
4 WEST VIRGINIA v. KEMPTHORNE
meet applicable effluent limitations and water quality stan-
dards." 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 OSM’s regulatory jurisdiction
over a mining site did not terminate upon the state’s release
of a reclamation bond. See id. OSM therefore undertook its
own investigation of the allegations in WVHC’s citizen com-
plaint.
OSM inspected the LaRosa site on November 17, 1994.
SMCRA’s implementing regulations establish effluent limita-
tions 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 fur-
ther 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 agency’s 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 com-
pleted.
WEST VIRGINIA v. KEMPTHORNE 5
Id. at 399-400.
WVHC appealed OSM’s 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
OSM’s May 15, 1995, decision to take no further action on
WVHC’s citizen complaint, but before WVHC’s appeal of
that decision to the IBLA, the Board reversed the ALJ’s deter-
mination (in the unrelated LaRosa case) that OSM’s regula-
tory 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 reclama-
tion under the initial regulatory program has been completed."
Id. at 402. According to the IBLA, West Virginia’s written
finding in a bond release that a mining operation complied
with all state rules and regulations terminates both the state’s
jurisdiction and OSM’s 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 IBLA’s LaRosa Fuel decision prompted the Board to
raise, on its own initiative, the question of OSM’s jurisdiction
to entertain WVHC’s citizen complaint. The Board explained
that OSM would lack jurisdiction to take further action if rec-
lamation requirements at the LaRosa site had been success-
6 WEST VIRGINIA v. KEMPTHORNE
fully completed, the state had fully released the performance
bond, and there was no basis for OSM to reassert jurisdiction.
WVHC, 165 I.B.L.A. at 406. The Board concluded, however,
that the record before it was "not sufficient to establish that
jurisdiction [had] terminated." Id. Specifically, the Board
noted that OSM had not addressed the West Virginia DEP’s
failure to include, in its response to the ten-day notice, a copy
of any written determination by the agency that the LaRosa
operation had successfully completed the applicable reclama-
tion requirements for the site. Furthermore, OSM had failed
to ascertain whether the DEP had any evidence of pre-mining
water quality to support its claim that there was no significant
difference in pre- and post-mining water qualities. That evalu-
ation would be relevant, the Board said, in determining
whether the state agency’s formal termination of jurisdiction
was based on a "misrepresentation of a material fact," which
would require OSM to reassert jurisdiction. Id. at 405. The
IBLA therefore set aside OSM’s decision to take no further
action and remanded for the agency to fulfill its obligation "to
determine whether jurisdiction terminated under 30 [C.F.R. §]
700.11(d)(1)(i) and whether or not a basis for reasserting
jurisdiction has been established under 30 [C.F.R. §]
700.11(d)(2)." Id. at 406.
The IBLA’s remand decision prompted WVHC to file a
petition with the Board seeking its reasonable costs and
expenses, including attorneys’ fees, from OSM pursuant to
SMCRA. See 30 U.S.C. § 1275(e). Under the applicable regu-
lations, fees are available to a participant in a proceeding
under SMCRA "who prevails in whole or in part, achieving
at least some degree of success on the merits" (the eligibility
requirement), and who makes "a substantial contribution to a
full and fair determination of the issues" (the entitlement
requirement). 43 C.F.R. § 4.1294(b); see also W. Va. High-
lands Conservancy v. Norton, 343 F.3d 239, 245 (4th Cir.
2003) [hereinafter Norton] (discussing eligibility and entitle-
ment requirements).
WEST VIRGINIA v. KEMPTHORNE 7
In denying WVHC’s fee petition, the IBLA determined that
WVHC did not satisfy the threshold eligibility requirement
because the organization had not achieved at least some
degree of success on the merits. The IBLA reasoned that
WVHC could not claim "any measure of success at this point"
because the Board’s remand decision rejected an assumption
underlying WVHC’s administrative appeal, which was that
OSM had authority to inspect the LaRosa reclamation site.
J.A. 68.
WVHC filed an action in district court against the Secretary
of the Interior (the Secretary) seeking review of the IBLA’s
determination that WVHC was ineligible for costs and
expenses, including attorneys’ fees, in connection with the
underlying administrative appeal. The district court granted
summary judgment to WVHC, concluding that the IBLA’s
remand order represented "a partial success on the merits for
[WVHC]," rendering the organization eligible for fees. W. Va.
Highlands Conservancy v. Kempthorne, No. 2:06-cv-00011-
FPS, slip op. at 17 (N.D. W. Va. Sept. 20, 2007). WVHC
"partially prevailed," according to the district court, "because
the remand obtained through [WVHC’s] administrative
appeal has served a key purpose of the citizen suit provision,
which is to ensure that the agencies meet their regulatory obli-
gations under SMCRA." Id. (citing Norton, 343 F.3d at 246).
The district court’s order would remand the case to the IBLA
for consideration of the entitlement question. The Secretary
appeals.
II.
A district court order remanding a case to an administrative
agency "is usually not a final, appealable decision under 28
U.S.C. § 1291." Norton, 343 F.3d at 244 (internal quotation
marks omitted). "Nevertheless, ‘if a district court order
remanding a case to an administrative agency will be effec-
tively unreviewable after a resolution of the merits, the order
is a final decision.’" Id. (quoting Hanauer v. Reich, 82 F.3d
8 WEST VIRGINIA v. KEMPTHORNE
1304, 1306-07 (4th Cir. 1996)). Under SMCRA only those
persons aggrieved by agency actions may petition for judicial
review. 30 U.S.C. § 1276(a)(1). The agency itself cannot peti-
tion for judicial review. See Norton, 343 F.3d at 244. There-
fore, "if we do not review the district court’s summary
judgment order [in this case] prior to a remand to the Board,
the summary judgment order will become ‘effectively unre-
viewable’ as far as the Secretary is concerned." Id. at 244.
The summary judgment order therefore operates as a final,
appealable decision.
III.
We review de novo the question of whether a party is eligi-
ble for an award of attorneys’ fees under a fee-shifting statute.
Id. at 246. Most fee-shifting statutes allow fees only to the
prevailing party. See id. at 244 (citing Loggerhead Turtle v.
County Council, 307 F.3d 1318, 1322 n.4 (11th Cir. 2002)
(listing "prevailing party" statutes)). But some statutes allow
fees when the court or agency determines an award is appro-
priate. Id. at 244 (citing Loggerhead Turtle, 307 F.3d at 1322-
23 n.5 (listing "whenever appropriate" statutes)). Statutes that
permit fee-shifting "whenever appropriate" "expand the class
of parties eligible for fee awards from prevailing parties to
partially prevailing parties—parties achieving some success,
even if not major success." Ruckelshaus v. Sierra Club, 463
U.S. 680, 688 (1983). For a fee award to be "appropriate,"
there must be "some degree of success on the merits by the
claimant." Id. at 694.
SMCRA includes a "whenever appropriate" fee-shifting
provision; it authorizes an award of costs and expenses,
including attorneys’ fees, as "deem[ed] proper" by the Secre-
tary. See 30 U.S.C. § 1275(e); see also Norton, 343 F.3d at
244-45 (determining that SMCRA’s fee-shifting provision,
§ 1275(e), fits in the "whenever appropriate" category of stat-
utes governed by Ruckelshaus). SMCRA regulations autho-
WEST VIRGINIA v. KEMPTHORNE 9
rize costs and expenses, including attorneys’ fees, from OSM
to
any person, other than a permittee or his representa-
tive, who initiates or participates in any proceeding
under [SMCRA], and who prevails in whole or in
part, achieving at least some degree of success on
the merits, upon a finding that such person made a
substantial contribution to a full and fair determina-
tion of the issues.
43 C.F.R. § 4.1294(b) (emphasis added).
We interpret "prevailing in part"—or achieving some
degree of success on the merits—in light of the goals of
SMCRA’s citizen suit provision, "a key purpose of which" is
to ensure that OSM fulfills its statutory duties in a responsible
manner. See Nat’l Wildlife Fed’n v. Hanson, 859 F.2d 313,
316-17 (4th Cir. 1988). 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, as our decisions in Hanson and Norton have estab-
lished.
In Hanson the plaintiffs brought a citizen suit under the
Clean Water Act (the CWA), alleging that the U.S. Army
Corps of Engineers (the Corps) failed to make an adequate
evaluation of whether a tract of land contained wetlands. Id.
at 315. The district court agreed with the plaintiffs and
directed the Corps on remand to make a properly informed
wetlands determination. Id. When the plaintiffs’ attorneys’
fees award was appealed to this court, we held that the plain-
tiffs were prevailing parties. Id. In achieving a remand that
ordered the Corps to undertake a proper investigation, the
plaintiffs had "served a key purpose of the citizen suit provi-
sion which is to ensure that the agencies" properly perform
their duties under the CWA. Id. at 317.
10 WEST VIRGINIA v. KEMPTHORNE
In Norton WVHC filed with OSM a citizen complaint
under SMCRA, seeking rescission of mining permits issued to
one coal company that allegedly owned or controlled a second
coal company that was mining in violation of SMCRA. 343
F.3d at 242-43. OSM determined that the first company did
not own or control the second, and WVHC appealed to the
IBLA. The Board ordered a remand, concluding that OSM
had failed to develop an adequate record on which OSM
could make a fully informed decision about the ownership
and control issue. Id. at 243. In affirming WVHC’s eligibility
for fees, we held that a "remand order that required OSM to
restart the informal review process . . . amounted to partial
success [because it] required OSM to do a proper job in carry-
ing out one of its duties under SMCRA." Id. at 247.
SMCRA assigns OSM certain duties with respect to coal
mine reclamation sites, such as the LaRosa site here, even
when the state regulatory authority has concluded that its
jurisdiction is terminated. See 30 U.S.C. §§ 1254(b), 1271.
These duties include the reassertion of OSM jurisdiction in
certain circumstances. Id. §§ 1254(b), 1271. If OSM has rea-
son to believe that a reclamation site is not in compliance with
SMCRA, OSM must "notify the State regulatory authority of
possible violations and allow the regulatory authority an
opportunity to respond." LaRosa Fuel Co., 134 I.B.L.A. at
347. If the state agency decides not to reassert jurisdiction, as
occurred here, then OSM must determine whether the state
agency properly terminated jurisdiction, see 30 C.F.R.
§ 700.11(d)(1)(i), and whether there is a basis for the state
agency to reassert jurisdiction, see id. § 700.11(d)(2). If there
is a basis for the reassertion of state regulatory jurisdiction
over the reclamation site, then OSM must reassert oversight
jurisdiction. See 30 C.F.R. § 700.11(d)(2); LaRosa Fuel, 134
I.B.L.A. at 350-51. OSM must also develop an adequate
record to support its jurisdictional determinations.
In remanding WVHC’s citizen complaint, the IBLA con-
cluded that the record developed by OSM was inadequate to
WEST VIRGINIA v. KEMPTHORNE 11
determine whether OSM had properly fulfilled its duties
under SMCRA. First, the Board noted that OSM had not
addressed the fact that the West Virginia DEP’s response to
OSM’s ten-day notice did not contain a written finding by the
state agency that reclamation at the LaRosa site had been suc-
cessfully completed. WVHC, 165 I.B.L.A. at 405-06; see 30
C.F.R. § 700.11(d) (requiring a written finding by the regula-
tory authority that all reclamation requirements have been
successfully completed). Second, the IBLA concluded that
OSM should explore whether the state agency had evidence
of pre-mining water quality to support its assertion that there
was no significant difference between pre- and post-mining
water qualities. This evidence would be relevant, the Board
said, in determining whether there had been a misrepresenta-
tion of material fact sufficient to trigger OSM’s duty to reas-
sert jurisdiction. WVHC, 165 I.B.L.A. at 406.
The IBLA’s remand order thus required OSM to properly
carry out the duty mandated by 30 C.F.R. § 700.11(d) to
determine whether it was required to reassert regulatory juris-
diction over the LaRosa reclamation site. That achievement
by WVHC amounts to some degree of success on the merits.
Our determination that WVHC achieved some degree of
success is unaffected by the fact that the IBLA’s remand order
was grounded on an issue that WVHC did not directly press
before the Board. "Whenever appropriate" attorneys’ fees
statutes "eliminate . . . the necessity for case-by-case scrutiny
by federal courts into whether plaintiffs prevailed ‘essentially’
on ‘central issues,’" or "essentially succeed[ed] in obtaining
the relief [they] seek[ ] in [their] claims on the merits." Ruck-
elshaus, 463 U.S. at 688. Thus, it is enough here that the
IBLA ordered OSM to carry out one of its regulatory duties.
For our cases, such as Hanson and Norton, make clear that
obtaining a remand that requires an agency to perform a regu-
latory duty represents the achievement of some success on the
merits. The district court’s summary judgment order holding
that WVHC meets the eligibility requirement for an award of
12 WEST VIRGINIA v. KEMPTHORNE
attorneys’ fees under SMCRA’s fee-shifting provision is
therefore
AFFIRMED.