Black Mesa Water Coalition v. Jewell

An agency’s “eligibility” determination in reference to fees and costs is reviewed de novo, and review of an “entitlement” determination is reviewed for substantial evidence.

Black Mesa Water Coalition (“Black Mesa”), a group of environmental and community organizations, challenged a coal mining permit revision granted by the Federal Office of Surface Mining Reclamation and Enforcement ("OSM") for coal mining operations in northeastern Arizona. Black Mesa was successful, and thereafter sought costs and expenses, including attorney’s and expert witness fees. Their request was denied by the Administrative Law Judge based on the conclusion that the plaintiff was not “eligible,” and was not “entitled” to costs and expenses under 43 C.F.R. § 4.1294(b). The Interior Board of Land Appeals affirmed the ruling. On appeal, the Ninth Circuit determined that the proper review of an agency’s “eligibility” determination is de novo, and its “entitlement” determination is reviewed for substantial evidence. The panel held that Black Mesa is “eligible” for fees because it demonstrated some degree of success on the merits by making arguments early in the merits stages of the administrative proceedings. The panel also determined that the issue of “entitlement” should be remanded for the agency to consider because it is a factual finding made at the agency level. REVERSED in part, VACATED in part, and REMANDED.