Patrick C. McGinley
W. Henry Lawrence
Suzanne M.Weise Janna M. Nuzum
Morgantown, West Virginia Steptoe & Johnson
Attorneys for the Appellants Clarksburg, West Virginia
Attorneys for the Appellee,
Martinka Coal Company
JUSTICE ALBRIGHT delivered the opinion of the Court.
2. Interpreting a statute or an administrative rule or regulation presents a
purely legal question subject to de novo review. Syl. Pt. 1, Appalachian Power Co. v.
State Tax Dept., 195 W.Va. 573, 466 S.E.2d 424 (1995).
3. The award of reasonable attorneys' fees, available through the express authority of West Virginia Code § 22-3-25 (1994) and subject to the terms and conditions of the West Virginia Surface Mining Reclamation Legislative Rule, includes legal services provided to a party litigant on a successful appeal of an order of the Surface Mine Board. By so holding, we make no distinction as to whether the appeal to the circuit court contests the Surface Mine Board's decision regarding the merits of the case or the award of costs, attorneys' fees or expert witness fees.
Ralph and Brenda Vincent appeal from the September 27, 2002, final order
of the Circuit Court of Marion County, wherein the lower court determined that the
regulations promulgated pursuant to the West Virginia Surface Coal Mining and
Reclamation Act (hereinafter referred to as SCMRA) do not permit the additional recovery
of reasonable attorneys' fees for time expended in successfully litigating the administrative
appeal of an award of attorney and expert witness fees. Based upon a full review of the
arguments and briefs of counsel, the record certified to this Court and relevant law, we
reverse the order and remand the case.
Having prevailed in the appeal, the Vincents filed a petition on September 18,
2001, seeking award of additional fees and costs associated with the time expended
opposing reversal of SMB's fee decision in the circuit court.
(See footnote 3)
A hearing on the petition was
held by the lower court on November 27, 2001. By order dated as entered September 27,
(See footnote 4)
the lower court denied the request for additional attorneys' fees primarily because
Title 38, Section 2-20-12.a. [of the Code of State Rules] does not expressly state that
attorney fees can be recovered on an appeal of an award of attorney fees. Thereafter, the
Vincents timely filed a petition for appeal of the final order with this Court which was
granted on May 14, 2003.
. . . Costs and expenses, including attorneys' fees may be
20.12.a.1. Any participating party against the violator under a finding that there is a violation of the Act, the regulations or the permit has occurred, and there is a determination that the party made a significant contribution to the full and fair determination of the issues . . . . (See footnote 5)
38 W.Va. C.S.R. 2.
Martinka maintains that Section 20.12.a. of the regulation does not provide for
award of additional attorneys' fees for time expended in subsequent litigation in the courts
because the rule is silent with regard to appeals as well as additional fees for further
litigation. This argument not only fails to recognize this Court's decision in Louden, but it
also overlooks our apt discussion of such silence in Orndorff v. West Virginia Department
of Health, 165 W.Va. 1, 267 S.E.2d 430 (1980). In Orndorff this Court was confronted with
the question of whether a statutory provision for reasonable attorneys' fees included
recovery for legal services provided on a successful appeal from an administrative agency
determination. On this issue we observed:
In most instances, the statutory entitlement to recover reasonable attorney fees is silent as to the levels of litigation to which the provision is applicable. Most courts, however, have had no difficulty in construing the statute to permit recovery of attorney fees for services on appeal. Fee recovery has been extended, furthermore, to include the time spent in attempting to obtain the reasonable attorney fees warranted by the particular statute, as stated in Weisenberger v. Huecker, 593 F.2d 49, 54 (6th Cir. 1979), cert. denied, 444 U.S. 880, 62 L.Ed.2d 110, 100 S.Ct. 170 . . . .
The premise underlying the extension of attorney fees to services rendered on appeal is that the client's right is often not ultimately vindicated until an appeal has been taken, and much of the attorney's incentive to prevail will be dissipated if he is compelled to prepare and prosecute an appeal without obtaining reasonable compensation. A secondary premise is the concern that a meritorious claim may be frustrated when the opposing party takes an appeal, and the party who should prevail abandons or compromises his claim because of the attrition of costs attendant to the appeal process.
Id. at 6-7, 267 S.E.2d 433 (citations omitted).
We find this latter reason particularly apposite to the present situation. In
enacting SCMRA, the Legislature expressed its intent to assure that the rights of surface
and mineral owners and other persons with legal interest in the land or appurtenances to land
are adequately protected from [surface-mining] operations; . . . and that adequate
procedures are provided for public participation where appropriate under this article[.]
W.Va. Code § 22-3-2 (b) (1994) (Repl. Vol. 2002). The Legislature further provided that
the statute serve to allow the exercise of the full reach of state common law, statutory and
constitutional powers for the protection of the public interest through effective control of
surface-mining operations. Id. To carry out these purposes, the Legislature vested
authority with the DEP to promulgate the rules we now have under consideration.
Citizens with a legal interest in property, such as the Vincents, can only realize
the full benefit of protection the Legislature intended if they are permitted not only to assert
their rights and interests before the SMB but also to defend SMB's award or decision in their
favor when it is challenged by appeal to the courts. West Virginia Code § 22-3-25 and
associated regulations clearly contemplate such result. To deny compensation for reasonable
attorneys' fees through the appeal process, including appeals to this Court, would no doubt
reduce a citizen's ability to obtain effective representation to preserve their legal interests.
In turn, denying such fees would likely prove to be an incentive for losing parties to pursue
appeals because of the likelihood that the prevailing party before the SMB would not have
legal representation on appeal. As to compensation for the legal work completed by
attorneys during an appeal of an SMB order, we see no reason to treat an award of attorneys'
fees differently from an award on the merits, especially since the work is oftentimes
intertwined. Therefore, we conclude that the award of reasonable attorneys' fees, available
through the express authority of West Virginia Code § 22-3-25 (1994) and subject to the
terms and conditions of the West Virginia Surface Mining Reclamation Legislative Rule,
includes legal services provided to a party litigant on a successful appeal of an order of the
SMB. By so holding, we make no distinction as to whether the appeal to the circuit court
contests the SMB's decision regarding the merits of the case or the award of costs, attorneys'
fees or expert witness fees.
We appreciate the lower court's concern that an award for attorney fees in
this case may set a precedent that could result in an endless cycle of litigation whereby
attorneys continue to request fees for time expended in recovering fees. Nonetheless, this
policy determination has been resolved by the Legislature. We note as well that such
outcome has not been realized in other situations where statutes require or permit a court to
order one party to pay the reasonable attorney fees of another party, such as in domestic
relations cases. See W.Va. Code 48-1-305 (2001). Additionally, contrary to the Vincents'
contention that the award of fees is mandatory, the right to obtain reasonable attorneys' fees
for legal work performed to preserve a SMB award of attorneys' fees is not automatic or
unlimited under the provisions of the regulation. It is only when a participating party
prevails and a court finds that the party seeking the award made a significant contribution
to the full and fair determination of the issues on appeal that an award of costs and fees,
including attorneys' fees, against a violator may be made. 38 W.Va. C.S.R. 2 § 20.12.a.1.
Furthermore, the amount of the award is limited to what the court determines is reasonably
incurred. 38 W.Va. C.S.R. 2 § 20.12.a.
Accordingly, the September 27, 2002, final order of the Circuit Court of
Marion County is reversed. The case is remanded for determination of eligibility and, as
appropriate, award of reasonable attorneys' fees, including attorneys' fees attendant to this