C.A. No D. Ct. No. CV PCT-GMS UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. BLACK MESA WATER COALITION, et al.

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 1 of 48 C.A. No. 12-16980 D. Ct. No. CV-11-8122-PCT-GMS UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BLACK MESA WATER COALITION, et al., v. Plaintiffs-Appellants, KENNETH LEE SALAZAR, in his official capacity as U.S. Secretary of the Interior, Defendant-Appellee. ON APPEAL FROM A JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ------------------------------------------------------------ BRIEF OF APPELLEE ------------------------------------------------------------ JOHN S. LEONARDO United States Attorney District of Arizona PAUL A. BULLIS Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 MARK S. KOKANOVICH Phoenix, Arizona 85004-4408 Deputy Appellate Chief Telephone: (602) 514-7500 Attorneys for Appellees Submitted via ECF: March 18, 2013

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 2 of 48 I. TABLE OF CONTENTS Page I. Table of Contents......................................... i II. Table of Authorities........................................ iii III. Statement of Jurisdiction A. District Court Jurisdiction........................ 1 B. Appellate Court Jurisdiction....................... 1 IV. Issues Presented........................................... 2 V. Statement of the Case A. Nature of the Case; Course of Proceedings........... 3 B. Statutory and Regulatory Background............... 5 C. Statement of Facts............................... 6 1. The Merits Proceedings before the ALJ......... 7 2. The Costs and Fees Proceedings before the ALJ.................................. 9 3. The Proceedings before the IBLA............. 13 VI. Summary of Arguments..................................... 16 VII. Arguments A. Standard of Review.............................. 18 B. BMWC is Not Eligible for an Award of Costs and Expenses Because It did Not Achieve Success on the Merits........................................ 20 1. BMWC Did Not Achieve Success on the Merits Because the ALJ Dismissed BMWC s Request for Review as Moot........................ 20 i

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 3 of 48 2. BMWC Should Not Get Credit for Arguments it Never Made.............................. 25 3. BMWC s Reliance on Kempthorne and New Jersey v. E.P.A. is Misplaced................. 27 C. BMWC is Not Entitled to an Award of Costs and Expenses Because It did Not Make a Substantial Contribution to the Determination of the Issues....... 29 1. The Record Supports the IBLA s and ALJ s Factual Findings that No Causal Nexus Existed Between BMWC s Actions and the ALJ s Merits Order.................................... 29 2. The Legislative History Does Not Mandae That BMWC Be Awarded Costs and Expenses, Nor does Precedent Arising from other Fees Shifting Statutes.................................. 33 D. The Secretary Has Not Waived His Challenge to the Reasonableness of Costs and Expenses.............. 37 VIII. Conclusion............................................... 39 IX. Statement of Related Cases.................................. 40 X. Certificate of Compliance................................... 41 XI. Certificate of Service....................................... 42 ii

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 4 of 48 CASES II. TABLE OF AUTHORITIES Akootchook v. United States, 271 F.3d 1160 (9th Cir. 2001)................. 18 American Petroleum Institute v. U.S. E.P.A., 72 F.3d (D.C. Cir. 1996)......... 36 Auer v. Robbins, 519 U.S. 452 (1997).................................. 19 Cohen v. Community College of Philadelphia, 522 F. Supp. 879 (E.D. Pa. 1981)............................................... 24 Earth Island Institute v. U.S. Forest Service, 442 F.3d 1147 (9th Cir. 2006).... 33 Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985)................. 18 Grove v. Mead School Dist. No. 354, 753 F.2d 1528 (9th Cir. 1985).......... 35 Hjelvik v. Babbitt, 198 F.3d 1072 (9th Cir. 1999)......................... 18 Hoefler v. Babbitt, 139 F.3d 726 (9th Cir. 1998).......................... 18 Hopi Tribe v. Navajo Tribe v. United States, 46 F.3d 908 (9th Cir. 1995)...... 18 Intown Properties Management, Inc. v. Wheaton Van Lines, Inc., 271 F.3d 164 (4th Cir. 2001).................................... 22 Johnson v Manhattan Ry. Co., 289 U.S. 479 (1933)....................... 22 Kentucky Resources Council v. OSM, 137 IBLA 345 (1997).............. 6, 20 Kentucky Resources Council, Inc. v. Babbitt, 997 F.Supp. 814 (E.D. Ky. 1998).......................................... 6, 19, 30 National Mining Ass n v. Kempthorne, 512 F.3d 702 (D.C. Cir. 2008)......... 19 iii

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 5 of 48 National Wildlife Federation v. OSM, 177 IBLA 315 (2009)................ 24 New Jersey v. E.P.A., 663 F.3d 1279 (D.C. Cir. 2011)............. 27-29, 34, 36 New Jersey v. E.P.A., F.3d, 2012 WL 6604522 (D.C. Cir. 2012)........ 29 Saunders v. Claytor, 629 F.2d 596 (9th Cir. 1980)........................ 24 Schnable v. Lui, 302 F.3d 1023 (9th Cir. 2002)........................... 22 Seattle School Dist. No. 1 v. State of Washington, 633 F.2d 1338 (9th Cir. 1980)............................................. 34-35 Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994).................... 19 West Virginia Highlands Conservancy v. Kempthorne, 569 F.3d 147 (4th Cir. 2009)............................................. 27-28 West Virginia Highlands Conservancy v. Norton, 343 F.3d 239 (4th Cir. 2003)..................................... 6, 16, 19, 29-30 West Virginia Highlands Conservancy, 152 IBLA 66 (2000)......... 6-7, 19-20 STATUTES 28 U.S.C. 1291.................................................... 1 30 U.S.C. 1275(e)........................................... 1-2, 5, 23 30 U.S.C. 1276(a)(2)............................................... 1 42 U.S.C. 7606(f)................................................. 28 42 U.S.C. 4321-47................................................ 3 iv

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 6 of 48 REGULATIONS 43 C.F.R. 4.1113............................................. 7, 20-21 43 C.F.R. 4.1290.................................................. 19 43 C.F.R. 4.1290(a)................................................ 5 43 C.F.R. 4.1294(b)....................................... 5, 20, 30, 34 RULES Fed. R. App. P. 4(a)(1)(B)............................................. 1 Fed. R. Civ. P. 42(a)................................................ 22 v

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 7 of 48 A. District Court Jurisdiction III. STATEMENT OF JURISDICTION Plaintiffs-Appellants Black Mesa Water Coalition and various other organizations (collectively BMWC ) 1/ challenge the Interior Board of Land Appeals ( IBLA s ) order denying BMWC s request for costs and expenses sought under Section 525(e) of the Surface Mining Control and Reclamation Act ( SMCRA ), 30 U.S.C. 1275(e). The district court had jurisdiction to review the IBLA s order under 30 U.S.C. 1276(a)(2) because BMWC filed a timely Complaint & Petition for Judicial Review on August 12, 2011. (CR 7.) 2/ B. Appellate Court Jurisdiction The District Court entered a final judgment upholding the decision of the IBLA on July 11, 2012, and BMWC filed a timely notice of appeal on September 6, 2012. (CR 31-32); Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction pursuant to 28 U.S.C. 1291. 1/ BMWC refers to all named Plaintiffs-Appellants, who are Navajo and non- Navajo community and conservation organizations. Appellants Opening Brief (Op. Br.) at 4. 2/ The abbreviation CR refers to the Clerk's Record and will be followed by the pertinent document number(s). The abbreviation ER refers to the Excerpts of Record and will be followed by the relevant page number(s). The abbreviation SER refers to the Supplemental Excerpts of Record and will be followed by the relevant page number(s). 1

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 8 of 48 IV. ISSUES PRESENTED In order to obtain an award of costs and expenses in an administrative appeal under SMCRA 30 U.S.C. 1275(e), a petitioner must satisfy two requirements. First, the petitioner must be eligible by achieving success on the merits. Second, the petitioner must be entitled by making a substantial contribution to the determination of the issues. A. Whether BMWC is eligible to an award of costs and expenses where the Administrative Law Judge ( ALJ ) did not consider the merits of BMWC s Request for Review but instead denied it as moot. B. Whether BMWC is entitled to an award of costs and expenses where BMWC deliberately chose not to argue the issues raised by the successful party in a consolidated proceeding and where the IBLA found that Appellants did not prove that a causal nexus existed between BMWC s prosecution of its case and the relief achieved by the successful party. C. Whether the Secretary of the Interior waived his right to challenge the reasonableness of costs and expenses where he filed a successful motion to dismiss BMWC s petition for costs and expenses. 2

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 9 of 48 V. STATEMENT OF THE CASE A. Nature of the Case; Course of Proceedings In January of 2009, ten applicants, in ten separate appeal proceedings, filed requests for review of a decision by the U.S. Department of the Interior s Office of Surface Mining Reclamation and Enforcement ( OSM ) approving an application by Peabody Western Coal Company ( Peabody ) for a significant revision of its permit governing surface coal mining operations at the Kayenta and Black Mesa Mines in Arizona. Among the ten applicants, BMWC and Kendall Nutumya, et al, ( Nutumya ) filed separate appeals. Administrative Law Judge ( ALJ ) Robert G. Holt consolidated the proceedings for hearing and decision, but each request for review retained its own separate character with distinct docket numbers, parties, and consideration of the merits. BMWC and Nutumya each filed separate motions for summary decision for alleged violations of the National Environmental Policy Act ( NEPA ), 42 U.S.C. 4321-47. BMWC s NEPA motion alleged that OSM s decision violated NEPA because the Environmental Impact Statement ( EIS ) prepared by OSM allegedly failed to 1) analyze impacts related to global warming; 2) consider the impacts of mercury and selenium emissions; and 3) consider the impacts of a National Pollutant Discharge Elimination System permit issued by the U.S. Environmental Protection 3

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 10 of 48 Agency. (ER 239-40.) In contrast, Nutumya s NEPA motion alleged that OSM s decision violated NEPA because the EIS failed to 1) consider a reasonable range of alternative actions, 2) describe the proper affected environment, and 3) achieve informed decision-making and meaningful public comment. (ER 224.) In an order dated January 5, 2010, ALJ Holt granted Nutumya s NEPA motion for summary decision, finding that the EIS failed to consider a reasonable range of alternatives and failed to define the environmental baseline correctly. ALJ Holt ordered that the OSM decision be vacated. ALJ Holt also ordered that [t]he other [eighteen] pending motions [for dismissal or summary decision] in this consolidated proceeding are denied as moot or not ripe for review. (ER 243.) Nutumya filed a petition for an award of costs and expenses associated with its request for review, (ER 29), and was awarded costs and expenses. (ER 43.) BMWC filed a petition for an award of attorney fees and expenses associated with its request for review. (ER 75.) OSM moved to dismiss the petition. ALJ Holt granted that motion to dismiss, determining that BMWC was not eligible for fees because it had not achieved any success on the merits in its own proceeding. ALJ Holt also found that BMWC was not entitled to fees because it had not made any substantial contribution to the resolution of the merits, as it had presented no arguments related to the issues addressed in the decision on Nutumya s motion. 4

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 11 of 48 BMWC sought review by the Interior Board of Land Appeals ( IBLA ), which affirmed the ALJ s order granting the Motion to Dismiss. (ER 7.) BMWC then sought judicial review in the United States District Court for the District of Arizona, which upheld the IBLA decision. (ER 1.) B. Statutory and Regulatory Background Section 525(e) of the Surface Mining Control and Reclamation Act ( SMCRA ), 30 U.S.C. 1275(e), states: Whenever an order is issued under this section, or as a result of any administrative proceeding under this chapter, at the request of any person, a sum equal to the aggregate amount of all costs and expenses (including attorney fees) as determined by the Secretary to have been reasonably incurred by such person for or in connection with his participation in such proceedings, including any judicial review of agency actions, may be assessed against either party as the court, resulting from judicial review or the Secretary, resulting from administrative proceedings, deems proper. The applicable regulation, 43 C.F.R. 4.1290(a), provides that an award of costs and expenses will only be appropriate where the SMCRA proceeding results in... [a] final order being issued by an ALJ or the IBLA. Under 43 C.F.R. 4.1294(b), costs and expenses may be awarded from OSM to a qualified person: 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. 5

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 12 of 48 (Emphases added). Thus, in addition to the requirement of initiating or participating in a proceeding, this regulation establishes that the fee petitioner must thus satisfy two requirements under the regulation: first what is called the eligibility requirement (achieving at least some degree of success on the merits); and, second, what is called the entitlement requirement (making a substantial contribution to the determination of the issues). West Virginia Highlands Conservancy v. Norton, 343 F.3d 239, 245 (4th Cir. 2003) (citation omitted). In order to fulfill the entitlement requirement, there must be a causal nexus between the plaintiffs actions in prosecuting the appeal to the [Interior Board of Land Appeals] and the corrective actions taken by OSM. Kentucky Resources Council, Inc. v. Babbitt, 997 F. Supp. 814, 820 (E.D. Ky. 1998); Kentucky Resources Council v. OSM, 137 IBLA 345, 352 (1997); see also West Virginia Highlands Conservancy v. Norton, 343 F.2d at 247; West Virginia Highlands Conservancy, 152 IBLA 66, 74 (2000). C. Statement of Facts On December 22, 2008, OSM issued its Record of Decision approving Peabody s application for a revision of an existing permit governing surface coal mining operations at certain locations. (ER 10.) 6

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 13 of 48 1. The Merits Proceedings before the ALJ Ten different individuals, groups of individuals, or organizations, including BMWC, (ER 271), and Nutumya, (ER 306), filed separate requests for review of OSM s decision. (ER 31-32.) Each request for review was assigned an individual docket number. (ER 10.) Two of the original applicants were dismissed and three additional parties were later added as intervenor-respondents. Id. Nutumya s request for review alleged that OSM had violated NEPA by, among other things, failing to consider a reasonable range of alternatives, failing to consider a real no action alternative, and failing to correctly define the environmental baseline. (ER 313); see (ER 225-26.) Nutumya s request described its concerns with the alternatives analysis in some detail. Id. In contrast, with respect to the range of alternatives, BMWC s request for review included a spare allegation in paragraph 99 that OSM had failed to identify relevant alternatives based on the amended application. OSM failed to evaluate a reasonable range of alternatives including, but limited to, alternatives submitted by Appellants. (ER 296.) On February 6, 2009, ALJ Holt consolidated the ten requests for review pursuant to 43 C.F.R. 4.1113. (SER 612.) Each of the consolidated requests for review retained its own docket number, and parties were granted intervention for individual dockets. (SER 612-13.) Prior to the motion cut-off date in the proceeding, 7

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 14 of 48 the ALJ decided motions to dismiss in different dockets based on the merits of each individual request for review. (ER 32, 39.) Thus, as ALJ Holt later explained, each request for review retained its own separate character. (ER 38.) Just before the motion cut-off date, the various parties filed a total of nineteen motions for dismissal or summary decision. Of those motions, BMWC and Nutumya filed five. (ER 10, 32.) BMWC filed three motions for summary decision: one for Failure to Process Peabody s Permit as Required by SMCRA, one for Failure to Comply with the Endangered Species Act in Connection with the Black Mesa Project, and one for Failure to Comply with NEPA in Connection with the Black Mesa Project ( BMWC s NEPA Motion ). (ER 212; SER 21.) BMWC s NEPA Motion alleged that the Final EIS failed to: (1) adequately analyze impacts related to global warming; (2) consider the impacts of mercury and selenium emissions; and (3) consider the impacts of the National Pollution Discharge Elimination System ( NPDES ) permit issued by the Environmental Protection Agency. (ER 239-40; SER 21.) BMWC s NEPA Motion did not seek summary decision on the alleged errors mentioned in paragraph 99 of its request for review. (ER 42; SER 21.) Nutumya filed two motions for summary decision: one contending that the Record of Decision Does Not Fully Consider SMCRA 510(a) for Black Mesa 8

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 15 of 48 Resources and another based on OSM s Violations of the National Environmental Policy Act ( Nutumya s NEPA Motion ). (ER 211.) Nutumya s NEPA Motion alleged that the Final EIS failed to: (1) consider a reasonable range of alternatives to the proposed action; (2) to describe the proper affected (i.e., baseline) environment; and (3) to achieve informed decision-making and meaningful public comment. (ER 224; SER 365.) On January 5, 2010, Judge Holt issued an Order ( ALJ Order ) in the consolidated proceeding, granting Nutumya s NEPA Motion. (ER 204, 242.) The ALJ Order did not address the merits of BMWC s NEPA Motion, (ER 240), nor did it rely on any arguments made by BMWC, (ER 42), nor did the ALJ Order mention the alleged error contained in paragraph 99 of BMWC s request for review. Id. (ER 204-45.) Instead, the ALJ Order denied BMWC s NEPA Motion as moot. (ER 243.) The ALJ Order also denied the other seventeen motions for dismissal or summary decision as either moot or not ripe for review. (ER 242-43.) 2. The Costs and Fees Proceedings before the ALJ Nutumya filed a petition for an award of costs and expenses associated with its request for review, and the ALJ awarded Nutumya costs and expenses. (ER 29, 43.) On February 22, 2010, BMWC also filed a Petition for Award of Costs and Expenses. (ER 75.) On March 8, 2010, OSM filed a Motion to Dismiss BMWC s 9

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 16 of 48 petition. (SER 9.) On March 23, 2010, OSM filed a Request for Extension of Time to File an Answer to BMWC s fee petition. (SER 4.) On May 28, 2010, ALJ Holt granted OSM s Motion to Dismiss BMWC s petition ( ALJ s Fees Order ), (ER 26), and denied OSM s Request for Extension of time to File an Answer as moot in light of the dismissal. (SER 1.) ALJ Holt denied BMWC s fee petition because BMWC was neither eligible for nor entitled to fees. First, BMWC was not eligible because it had not prevailed on its own request for review. (ER 37-41.) ALJ Holt explained that, although the requests for review had been consolidated for scheduling purposes, each request for review retained its separate character. (ER 38.) The ALJ Order dismissed BMWC s request for review as moot and thus did not render a decision on the merits of BMWC s claims in its proceedings. (ER 28.) If the ALJ Order had addressed the merits of [BMWC s] claims, they may not have achieved the same result as did Nutumya. (ER 40.) Moreover, Nutumya would have achieved the same result if [BMWC] had never filed [its] request[] for review. (ER 41.) ALJ Holt explained that awarding BMWC costs would reverse[] the scheme of the regulation. It would make any person eligible for costs and expenses simply because OSM did not prevail in a proceeding. But the regulation requires the applicant to achieve success on the merits. (ER 40.) 10

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 17 of 48 Because BMWC had not succeeded on the merits and the ALJ had dismissed BMWC s own request for review, it was not eligible for costs. Second, BMWC was not entitled because it did not make a substantial contribution to the full and fair determination of issues. (ER 44-48.) ALJ Holt explained (and BMWC does not dispute) that BMWC made no arguments regarding the issues on which the ALJ had decided Nutumya s motion for summary decision. Specifically, BMWC had presented no arguments regarding the range of alternatives or the environmental baseline. See (ER 33, 42.) BMWC contended that its coordination with Nutumya meant that it had contributed to Nutumya s success. In his Fees Order, ALJ Holt quoted from the attorney s statement submitted by BMWC with its fees petition: Through the course of those discussions, I learned which arguments the UCLA clinic intended to address in dispositive motions, and based on that knowledge and in an effort to avoid unnecessary duplication, I choose (sic) to focus my resources on developing other arguments alleging violations of NEPA as well as the Endangered Species Act. (ER 44.) As ALJ Holt explained, the statement does not demonstrate an agreement in advance to divide up the issues. (ER 44.) Rather, ALJ Holt found that BMWC chose to focus on NEPA arguments other than those raised by Nutumya, after learning what motions Nutumya would make. Id. ALJ Holt also found that BMWC and Nutumya remained free to choose those NEPA issues for which they would seek 11

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 18 of 48 summary decision and those they would not. Id. ALJ Holt consequently found that BMWC s decision to make different arguments than Nutumya meant that BMWC did not make a substantial contribution to a full and fair determination of the issues on which the ALJ decided Nutumya s motion for summary disposition. Id. ALJ Holt also cited to Nutumya s motion for summary decision and noted that Nutumya included as an exhibit a copy of a response by Peabody to discovery propounded by BMWC. (ER 45.) ALJ Holt noted that the exhibit was used to support a different argument than the arguments on which the ALJ Order granted summary decision, and that the ALJ Order neither relied upon nor cited any discovery responses obtained by BMWC. Id. The ALJ thus found that the mere inclusion of the discovery response in Nutumya s motion cannot demonstrate a substantial contribution to a full and fair determination of the issues. Id. ALJ Holt found in his Fees Order that BMWC did not cause the determination of the issues reached in the ALJ Order, and that the ALJ Order did not rely on anything presented in BMWC s motions or its Request for Review. (ER 46.) ALJ Holt therefore found that the result of the ALJ Order would have been the same if BMWC had not filed any request for review or motion. Id. Because no causal nexus existed between BMWC s actions and the relief obtained, BMWC was not eligible for an award. 12

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 19 of 48 3. The Proceedings before the IBLA BMWC appealed the ALJ Fees Order to the IBLA, which affirmed the ALJ Fees Order ( IBLA Fees Order ). (ER 7.) The IBLA agreed with ALJ Holt s analysis and conclusion that BMWC was neither eligible for nor entitled to an award of costs and expenses. (ER 20-21.) On eligibility, the IBLA agreed that ALJ Holt correctly ruled that, unless specified otherwise, case consolidation generally affects only the procedure of the combined cases, such as coordination of pre-hearing conferences, discovery, and scheduling orders, thereby preserving the individual, substantive integrity of the several actions. (ER 20-21.) We agree with [ALJ] Holt s ruling that under 43 C.F.R. 4.111 (sic), consolidation does not make one applicant the agent of another applicant, nor does it make the actions of one the actions of all. Each individual applicant must still provide their alleged error independently. (ER 21.) The IBLA ruled that the proceedings had retained their separate character resulting in separate judgments and that BMWC had not succeeded in its proceedings. Id. On entitlement, the IBLA explained that whether a party makes a substantial contribution turns on whether there is a causal nexus between the petitioners actions and the relief obtained, the determination of which depends upon the totality of the circumstances. (ER 21.) After considering the totality of the facts and 13

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 20 of 48 circumstances the IBLA concluded that no causal nexus existed between BMWC s actions and the grant of summary decision on Nutumya s motion. The IBLA reviewed BMWC s Fees Petition and found that of the 1,065 hours shown as being spent litigating OSM s decision, only 5.33 hours were spent conferring with Nutumya s legal team about NEPA issues. (ER 21-22.) The IBLA also found that the record does not show that BMWC worked to litigate the NEPA issues presented by Nutumya s motion, or that Nutumya s legal theories arose from those advocated by BMWC. (ER 22.) The IBLA found that BMWC did not prove a causal nexus between BMWC s prosecution of its case, and the relief that Nutumya achieved. Id. The IBLA concluded that BMWC therefore failed to establish its entitlement to fees. Id. The IBLA also found in its Fees Order that based on the record, ALJ Holt did not rely upon any claim, argument or error asserted by BMWC, and that ALJ Holt properly ruled that BMWC did not make a substantial contribution to a full and fair determination of the issues. Id. BMWC sought judicial review of the IBLA s Fee Order in the United States District Court, District of Arizona, which upheld the IBLA s decision. The district court found that the IBLA s conclusion that BMWC was not entitled to fees was not arbitrary or capricious because BMWC had failed to establish any causal nexus 14

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 21 of 48 between its actions and the relief obtained by Nutumya. (ER 4-6.) The court concluded that it therefore did not need to reach the IBLA s eligibility determination. (ER 4.) 15

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 22 of 48 VI. SUMMARY OF ARGUMENTS An applicant must meet a two-prong test to receive an award of costs and expenses under SMCRA. The applicant must achieve at least some degree of success in the proceeding (the eligibility requirement ), and must make a substantial contribution to the determination of the issues (the entitlement requirement ). West Virginia Highlands Conservancy v. Norton, 343 F.3d 239, 245 (4th Cir. 2003). Ten petitioners including BMWC and Nutumya filed requests for review of a decision by OSM. The petitions were consolidated, but each retained its own separate identity. BMWC and Nutumya each filed separate motions for summary disposition. ALJ Holt granted one of Nutumya s motions, and dismissed all other motions, including BMWC s, as moot or not ripe. BMWC achieved no success and thus failed to meet the eligibility prong because ALJ Holt actually denied BMWC s motion and request for review as moot. Even though the relief obtained by Nutumya was the same relief sought by BMWC, BMWC cannot bootstrap onto Nutumya s success when BMWC did not succeed in its own proceedings and ALJ Holt did not rely on or reach any of BMWC s arguments in granting Nutumya s motion. The ALJ and IBLA also made findings, supported by the record and the totality of the circumstances, that BMWC did not make a substantial contribution to the 16

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 23 of 48 determination of the issues. Indeed, BMWC does not dispute that it presented no arguments on the issues underlying the ALJ s merits decision. BMWC claims that there was coordination between BMWC and Nutumya regarding who would make what argument, and that Nutumya ended up with the winning arguments. However, an attorney statement supplied by BMWC makes clear that BMWC made a unilateral decision which arguments it would make. In addition, the number of hours claimed as coordinating with Nutumya s team (less than six hours total) amount to only a tiny fraction of the total hours claimed by BMWC in its petition. The ALJ and IBLA also found that Nutumya would have succeeded regardless of BMWC s participation. There is support for these findings in the record, and the Court may not substitute its judgment for that of the Secretary. BMWC has therefore failed to meet the entitlement prong. The Secretary, through OSM, has consistently argued that BMWC is entitled to no costs. Because ALJ Holt granted OSM s motion to dismiss BMWC s petition as not meriting any fees, OSM never had the opportunity (nor obligation) to file an answer disputing the amount of costs. OSM therefore has not waived any argument that the amount of costs requested is not reasonable. 17

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 24 of 48 VII. ARGUMENTS A. Standard of Review This Court may only set aside the decision of the IBLA if it is arbitrary, capricious, not supported by substantial evidence, or contrary to law. Akootchook v. United States, 271 F.3d 1160, 1164 (9th Cir. 2001); Hjelvik v. Babbitt, 198 F.3d 1072, 1074-75 (9th Cir. 1999) (noting limited standard of review); Hoefler v. Babbitt, 139 F.3d 726, 727 (9th Cir. 1998) (noting review is under the Administrative Procedure Act). The scope of review under the arbitrary and capricious standard is narrow and the court is not to substitute its view for that of the agency. Hopi Tribe v. Navajo Tribe v. United States, 46 F.3d 908, 914 (9th Cir. 1995). Under this standard, agency actions should be upheld so long as the agency examined the relevant data and articulated a satisfactory explanation for its action. Id. This Court s task is not to re-weigh the evidence considered by the agency, but rather to determine whether the agency acted within its discretion. Hopi Tribe, at 915 (citing March v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989)). The reviewing court is not generally empowered to conduct a de novo inquiry into the matter being reviewed, nor can it reach its own conclusions based on such inquiry. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985). 18

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 25 of 48 Interior s interpretation of the SMCRA is entitled to Chevron deference because Congress has delegated implementing authority to Interior. See, e.g., National Mining Ass n v. Kempthorne, 512 F.3d 702, 707 (D.C. Cir. 2008) (citing Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984)). But See West Virginia Highlands Conservancy v. Norton, 343 F.3d at 245-46 (reviewing legal interpretation de novo based on Fourth Circuit precedent). Pursuant to this authority, Interior promulgated regulations that govern the award of costs and expenses. 43 C.F.R. 4.1290. Interior s interpretation of its own regulations must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (citations omitted); see also Auer v. Robbins, 519 U.S. 452, 461 (1997). Moreover, the entitlement requirement (making a substantial contribution to the determination of the issues) is a factual determination, which is for the [IBLA] to decide. West Virginia Highlands Conservancy v. Norton, 343 F.3d at 248 (citations omitted). In order to meet this requirement, there must be a causal nexus between the plaintiffs actions in prosecuting the appeal to the [IBLA] and the corrective actions taken by OSM. Kentucky Resources Council, Inc. v. Babbitt, 997 F.Supp. 814, 820 (E.D. Ky. 1998); see also West Virginia Highlands Conservancy v. Norton, 343 F.2d 239, 247 (4th Cir. 2003); West Virginia Highlands Conservancy, 19

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 26 of 48 152 IBLA 66, 74 (2000); Kentucky Resources Council v. OSM, 137 IBLA 345, 352 (1997). B. BMWC Is Not Eligible for an Award of Costs and Expenses Because It did Not Achieve Success on the Merits 1. BMWC Did Not Achieve Success on the Merits Because the ALJ Dismissed BMWC s Request for Review as Moot In order to be eligible for an award of costs and expenses, a person must prevail[] in whole or in part, achieving at least some degree of success on the merits. 43 C.F.R. 4.1294(b) (emphasis added). BMWC neither prevailed nor achieved success on the merits. BMWC filed a Request for Review of the OSM decision on January 22, 2009. ER 271. The request was consolidated with the requests for review filed by nine other applicants, pursuant to 43 C.F.R. 4.1113, because they involve common questions of law or fact. (SER 612.) As both the ALJ and IBLA explained, that consolidation did not merge the requests for review into a single, unified proceeding. (ER 20-21; ER 37-39.) To the contrary, each request for review maintained its unique identity, as revealed by their individual captions and docket numbers; rulings limiting intervention by certain parties to certain proceedings but not others; and the ALJ s individual consideration of each of the motions to dismiss and each of the motions for summary disposition separately for each proceeding. 20

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 27 of 48 The caption after consolidation did not have a single, unique docket number. Rather, pleadings after consolidation were to use a caption which reflected the individual docket number of each of the ten requests for review. Id. In the order granting consolidation, intervention was granted to Salt River Agricultural Improvement District ( SRP ) in six of the individual dockets, but not three of the dockets. However, SRP was given permission to separately file petitions to intervene in those three dockets. (SER 612-13.) (ER 39.) The separate character of the requests for review is also shown by the fact that: the ALJ decided the earlier motions to dismiss on the merits of each individual request for review. See Orders dated March 20, 2009 (dismissing some individual applicants from the Nutumya request for review and dismissing the request for review of another individual applicant)[ser 566]; June 5, 2009 (dismissing the request for review of an individual person for lack of standing). [SER 553] The separate, distinct character of each of the requests for review continued through the filing of motions for summary disposition by different parties on issues which they selected, and the ALJ s decision granting Nutumya s motion and dismissing the motions of other parties. The courts have explicitly recognized consolidation in this manner, in which the individual character of the different consolidated proceedings is maintained. In 21

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 28 of 48 construing the predecessor to Federal Rule of Civil Procedure 42(a), the Supreme Court stated that consolidation is permitted as a matter of convenience and economy in administration, but does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another. Johnson v Manhattan Ry. Co., 289 U.S. 479, 496-96 (1933) (footnote omitted). In fact, consolidation may occur in at least three different contexts: (1) when several actions are stayed while one is tried, and the judgment in the case tried will be conclusive as to the others; (2) when several actions are combined and lose their separate identities, becoming a single action with a single judgment entered; and (3) when several actions are tried together, but each suit retains its separate character, with separate judgments entered. Schnable v. Lui, 302 F.3d 1023, 1035 (9th Cir. 2002) (citing 9 Wright & Miller, Fed. Practice & Procedure: Civil 2d 2382 (1995)). As the ALJ and IBLA explained (ER 20-21; ER 38), consolidation in this matter is clearly of the third type, with each proceeding retaining its separate character, with separate judgments entered. Id.; see Intown Properties Management, Inc. v. Wheaton Van Lines, Inc., 271 F.3d 164, 168 (4th Cir. 2001) (consolidation of two cases does not bar summary judgment in one of the cases). Both Nutumya and BMWC filed motions for summary disposition. Nutumya filed two motions, and BMWC filed three. The ALJ granted Nutumya s NEPA 22

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 29 of 48 Motion and vacated the decision of OSM approving the permit revision sought by Peabody. (ER 242-43.) All other pending motions for summary disposition, including those filed by BMWC, were denied as moot or not ripe for review. (ER 243.) BMWC s motion for summary disposition was denied. Addressing BMWC s NEPA Motion specifically, the ALJ stated that he need not address the merits of BMWC s motion because I can grant no additional relief, even if a favorable result could be rendered on its motion. The result it sought vacatur of the OSM decision has been granted. (ER 240.) (emphasis added). The result sought by BMWC was granted based on the merits of someone else s motion, not based on the merits of BMWC s motion. The ALJ did not consider or address the merits of BMWC s motion, and as the ALJ explained, [i]f the ALJ Order had addressed the merits of [BMWC s] claims, they may not have achieved the same result as did Nutumya. (ER 40.) It, therefore, cannot be said that BMWC achieved any success on the merits. This conclusion comports with the language of 1275(e) which states that awards are only available when an order is issued... at the request of any person and those costs arise for or in connection with his participation in such proceedings. 30 U.S.C. 1275(e) (emphases added). Here, the successful order was issued at the 23

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 30 of 48 request of Nutumya, and not at the request of BMWC. Moreover, the order was issued in Nutumya s proceedings, not BMWC s. Nutumya s success is not BMWC s success. The fact of consolidation does not impute Nutumya s success to any other party. Nor does the fact of consolidation entitle BMWC to an award of fees based upon Nutumya s success in Nutumya s proceeding. See Saunders v. Claytor, 629 F.2d 596, 599 (9th Cir. 1980) (where plaintiff prevailed in only one of her two consolidated Title VII cases, trial court erred by awarding attorney fees for all work performed in both cases); Cohen v. Community College of Philadelphia, 522 F. Supp. 879, 882 (E.D. Pa. 1981) (one plaintiff in consolidated employment discrimination suits was not a prevailing party and not entitled to an award of attorneys fees, while other plaintiffs were prevailing parties and entitled to fees). The IBLA has noted that to grant fees for mere participation in a proceeding that results in a decision or order that furthers the purposes of SMCRA would render the phrase success on the merits meaningless. National Wildlife Federation v. OSM, 177 IBLA 315, 337 (2009) (citation omitted). This is akin to what has happened with BMWC, and now BMWC is trying to claim Nutumya s success on the merits as its own. 24

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 31 of 48 2. BMWC Should Not Get Credit for Arguments it Never Made BMWC appears to argue that, even though its motion for summary disposition did not contain any of the arguments relied upon by the ALJ, it should nevertheless get credit for the arguments made by Nutumya because BMWC allegedly preserved those issues. (Op. Br. at 18-19.) However, BMWC s actions were not necessary to preserve those issues and it should not get credit when Nutumya chose to argue those issues and BMWC did not. As the ALJ found: Nutumya would have achieved the same result if [BMWC] had never filed [its] request[] for review. (ER 41.) More specifically, BMWC argues that Nutumya did not raise the supplemental NEPA issue in its Request for Review, and that Nutumya only argued that issue in its motion for summary decision because of the alleged coordination with BMWC. The record does not support this contention. First, Nutumya s request for review alleged that a further NEPA analysis was required when it stated that, based on Peabody s actions, a new EIS should have been done and the change was significant enough that a new EIS is required. (SER 657.) Second, if Nutumya had failed to preserve the supplemental NEPA issue in its request for review, then OSM and Peabody would have raised that issue before the ALJ. OSM and Peabody did, in fact, argue to the ALJ that Nutumya was unable to make certain arguments because it had failed to make those claims in its original request for review. (ER 225.) But 25

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 32 of 48 OSM and Peabody did not argue that Nutumya could not raise the supplemental NEPA issue. There is thus no basis to suggest that BMWC s participation was necessary to preserve this issue, as there was never any dispute about Nutumya s ability to argue the issue. BMWC also argues (Op. Br. at 19) that it preserved the NEPA alternatives argument by being the only party to raise this issue in public comments. However, other parties also argued in their public comments that the EIS failed to consider an adequate range of alternatives. See, e.g., (SER 620-26.) At least one party made that argument on its own, (SER 627, 631), and also incorporated the NEPA alternatives arguments made by the Natural Resources Defense Council on behalf of BMWC and others in public comments. (SER 627, 631, 635.) Although BMWC later submitted additional public comments which addressed the NEPA alternatives argument when the public comment period was re-opened, (ER 166; SER 644), all previously submitted comments were also considered with no need to be resubmitted. (SER 644.) BMWC s contention that it was the only party to raise the NEPA alternatives argument in public comments, thereby preserving the argument for use by Nutumya, is therefore incorrect. 26

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 33 of 48 BMWC did not make the arguments relied upon by the ALJ. Nutumya did. BMWC also did not preserve those arguments for Nutumya s use, and cannot claim Nutumya s success as its own. 3. BMWC s Reliance on Kempthorne and New Jersey v. E.P.A. is Misplaced BMWC s reliance on West Virginia Highlands Conservancy v. Kempthorne, 569 F.3d 147 (4th Cir. 2009) and New Jersey v. E.P.A., 663 F.3d 1279 (D.C. Cir. 2011) to support its eligibility argument is misplaced. In both of those cases, the successful fee petitioner was also a party to the proceedings in which the petitioner succeeded on the merits. In contrast, BMWC was neither the petitioner nor an intervenor in Nutumya s proceedings arising from Nutumya s successful request for review. Rather, BMWC was the petitioner in its own proceedings arising from its own request for review a request for review that was not successful, but rather was dismissed as moot. In Kempthorne, the West Virginia Highlands Conservancy ( WVHC ) prosecuted an administrative appeal to the IBLA of a decision by OSM dismissing a citizens complaint filed by WVHC. The appeal resulted in the IBLA issuing a remand order which was grounded on an issue that WVHC did not directly press before the [IBLA]. 569 F.3d at 154. The Court concluded that WVHC had achieved 27

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 34 of 48 some degree of success on the merits. Id. The important and distinguishing point is that the IBLA took action on WVHC s appeal. Any success can therefore be directly attributed to WVHC. That is not the situation here, and indeed, the IBLA found that as a factual matter, BMWC played no role in Nutumya s success. Therefore, Kempthorne is not helpful to BMWC s arguments. New Jersey v. E.P.A. deals with Section 307(f) of the Clean Air Act ( CAA ), 42 U.S.C. 7606(f), which provides that In any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such award is appropriate. The issue regarding fees under this provision of the CAA is whether the court s determination of an award in a judicial proceeding is appropriate. The court interpreted section 307(f) of the CAA to mean that fees may be awarded to an intervenor who sought the same relief as the successful plaintiff, even though the intervenor pursued arguments not made by the plaintiff and not reached by the court. New Jersey v. E.P.A., 663 F.3d at 1280. But, BMWC did not intervene in Nutumya s case, and that is the critical and controlling fact. This distinction was explicitly recognized by the Court in New Jersey v. E.P.A., supra, where it distinguished between the Tribes role as intervenors, in which they challenged the Delisting and Mercury Rules, and their role 28

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 35 of 48 as petitioners, in which they challenged a third regulation[.] 663 F.3d at 1284 (emphasis added). As subsequently noted by the same court in its decision determining the amount of fees to award, the Tribal Movants were entitled to fees for their role as intervenors, not for their role as petitioners. New Jersey v. E.P.A., F.3d, 2012 WL 6604522 at *2 (D.C. Cir. 2012). Applying that distinction to the instant matter, BMWC is not entitled to an award of fees in its role as petitioner because its motion for summary decision was denied. BMWC is also not entitled to an award as an intervenor because it did not intervene in Nutumwa s case. Moreover, even if BMWC could establish that it was eligible for fees, as explained in the next section, it cannot establish that it is entitled to fees. Since BMWC must meet both prongs of the test, this Court can affirm on either basis without addressing the other, as the district court did. C. BMWC Is Not Entitled to an Award of Costs and Expenses Because It did Not Make a Substantial Contribution to the Determination of the Issues 1. The Record Supports the IBLA s and ALJ s Factual Findings that No Causal Nexus Existed Between BMWC s Actions and the ALJ s Merits Order BMWC must satisfy not only the eligibility requirement for costs and expenses, but also what is called the entitlement requirement (making a substantial contribution to the determination of the issues). West Virginia Highlands 29

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 36 of 48 Conservancy v. Norton, 343 F.3d 239, 245 (4th Cir. 2003) (citation omitted); 43 C.F.R. 4.1294(b) (allowing awards only upon a finding that such person made a substantial contribution to a full and fair determination of the issues. ) (emphases added). This requires a causal nexus between BMWC s actions and the decision of the ALJ vacating Peabody s revised permit. Kentucky Resources Council, Inc. v. Babbitt, 997 F. Supp. 814, 820 (E.D. Ky. 1998). This is a factual determination for the agency to decide. West Virginia Highlands Conservancy v. Norton, 343 F.3d at 248. The ALJ conducted a careful review and analysis of the record and made several crucial findings that establish BMWC has failed to meet the entitlement prong. (ER 44-48.) The IBLA carefully reviewed the ALJ s analysis and the record and affirmed those findings. (ER 21-23.) At the outset, it bears emphasis that the ALJ vacated Peabody s revised permit based solely on the arguments presented by Nutumya in its motion for summary disposition and did not rely on any arguments made by BMWC in its motion. (ER 33, 42.) BMWC did not (and cannot) dispute that fact. Instead, BMWC presented several arguments to attempt to establish a causal nexus between its actions and Nutumya s success. The ALJ addressed each in turn. First, the ALJ addressed BMWC s argument, also made in BMWC s Opening Brief at 23, that BMWC and Nutumya coordinated their arguments to avoid 30

Case: 12-16980 03/18/2013 ID: 8554601 DktEntry: 12 Page: 37 of 48 duplication. (ER 44.) ALJ Holt quoted from an attorney declaration attached to BMWC s fees petition that the BMWC attorney learned which arguments the UCLA clinic intended to address in dispositive motions, and based on that knowledge and in an effort to avoid unnecessary duplication, I choose (sic) to focus my arguments on developing other arguments alleging violations of NEPA as well as the Endangered Species Act. (ER 44.) The ALJ found, based on the affidavit, that contrary to BMWC s argument, Nutumya and BMWC remained free to choose which arguments they would raise, and that BMWC simply chose not to raise the same claims that Nutumya did. Id. The ALJ found that as a result of that choice, BMWC did not contribute to a full and fair determination of the issues on which the ALJ decided the motions for summary decision. The IBLA affirmed the ALJ s conclusion, noting that the record did not establish that BMWC had an agreement with Nutumya to divide the work on the issues to be addressed. (ER 22.) Second, the ALJ addressed BMWC s argument that Nutumya s motion relied on responses BMWC received to its written discovery requests. (ER 45.) The ALJ examined the discovery response included as an exhibit to Nutumya s motion for summary decision, and found that Nutumya did not use the response to support the argument on which the ALJ Order granted summary decision, nor does the Order cite 31