43 C.F.R. § 4.1294

Who may receive an award

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Appropriate costs and expenses including attorneys' fees may be awarded—

(a) To any person from the permittee, if—

(1) The person initiates or participates in any administrative proceeding reviewing enforcement actions upon a finding that a violation of the Act, regulations, or permit has occurred, or that an imminent hazard existed, and the administrative law judge or Board determines that the person made a substantial contribution to the full and fair determination of the issues, except that a contribution of a person who did not initiate a proceeding must be separate and distinct from the contribution made by a person initiating the proceeding; or

(2) The person initiates an application for review of alleged discrimina- tory acts, pursuant to 30 CFR part 830, upon a finding of discriminatory discharge or other acts of discrimination.

(b) From OSM to any person, other than a permittee or his representative, who initiates or participates in any proceeding under the Act, 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 determination of the issues.

(c) To a permittee from OSM when the permittee demonstrates that OSM issued an order of cessation, a notice of violation or an order to show cause why a permit should not be suspended or revoked, in bad faith and for the purpose of harassing or embarrassing the permittee; or

(d) To a permittee from any person where the permittee demonstrates that the person initiated a proceeding under section 525 of the Act or participated in such a proceeding in bad faith for the purpose of harassing or embarrassing the permittee.

(e) To OSM where it demonstrates that any person applied for review pursuant to section 525 of the Act or that any party participated in such a proceeding in bad faith and for the purpose of harassing or embarrassing the Government.

[43 FR 34386, Aug. 3, 1978, as amended at 50 FR 47224, Nov. 15, 1985]

Notes of Decisions

Cited in 11 cases (1 in the last 5 years), 1988–2021 · leading case: West Virginia Highlands Conservancy, Incorporated National Wildlife Federation v. Gale A. Norton, Secretary of the Inter

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West Virginia Highlands Conservancy, Incorporated National Wildlife Federation v. Gale A. Norton, Secretary of the Inter (2003) ca4 · cites it 3× “” 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…”

Black Mesa Water Coalition v. Sally Jewell (2015) ca9 · cites it 6× “See 43 C.F.R. § 4.1294 (b). The ALJ agreed with OSM and granted its motion to dismiss Black Mesa’s fee petition.”

Solebury Township v. Department of Environmental Protection (2007) pa · cites it 2× “'" quoting 43 C.F.R. § 4.1294 (b) (1985)). In Kwalwasser, Appellants note, the EHB's analogy to federal standards for fee-shifting was considered appropriate because the federal and state statutes concerning coal mining activities sought to regulate the same activity in a…”

Powder River Basin Resource Council v. Babbitt (1995) ca10 · cites it 3× “See 43 C.F.R. § 4.1294 . On August 15, 1979, Wyoming submitted its proposed regulatory plan under SMCRA; In 1980, the Secretary determined that the state’s regulatory scheme was deficient in certain areas.”

West Virginia Highlands Conservancy, Inc. v. Kempthorne (2009) ca4 · cites it 2× “43 C.F.R. § 4.1294 (b); see also W. Va. Highlands Conservancy v.”

Big \B\" Mining Co. v. Department of Environmental Resources" (1991) pacommwct “Subsection (a) of 43 C.F.R. § 4.1294 clearly states that awards would be made for enforcement.”

Powder River Basin Resource Council v. Babbitt (1993) wyd “43 C.F.R. 4.1294(b), (e) and (d) (1991). The OSM gave the state several extensions within which to satisfy this deficiency, the final deadline being May 20,1983.”

M.L. Johnson Family Properties, LLC v. Bernhardt (2021) kyed · cites it 3× “43 C.F.R. § 4.1294 (b). This requires that “the appeal had some bearing on the actions ultimately taken by OSM officials.”

WV Highlands Consrv v. Norton (2003) ca4 · cites it 3× “" 43 C.F.R. § 4.1294 (b). We affirm the district court’s award of summary judgment in part, specifi- cally, 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…”

West Virginia Highlands Conservancy, Inc. v. Norton (2003) ca4 “” 43 C.F.R. § 4.1294 (b) (2002). Under the Board’s interpretation of the regulation, a showing of relief obtained from OSM or error in handling the citizen complaint by OSM is an important, if not dispositive, factor in determining whether fees should be awarded.”

Illinois South Project, Inc. v. Donald P. Hodel, Secretary of the Interior (1988) ca7 “The Secretary promulgated a regulation, 43 C.F.R. § 4.1294 (b), stating that “attorneys’ fees may be awarded” by the federal Office of Surface Mining to any person other than a mine operator who “initiates or participates in any proceeding under the Act upon a finding that the…”

— 43 C.F.R. § 4.1294(b) — 2 cases

Black Mesa Water Coalition v. Sally Jewell (2015) ca9 “See 43 C.F.R. § 4.1294 (b). The ALJ agreed with OSM and granted its motion to dismiss Black Mesa’s fee petition.”

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