                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


BLACK MESA WATER COALITION;              No. 12-16980
DINE HATAALII ASSOCIATION; TO
NIZHONI ANI; DINE ALLIANCE; C-              D.C. No.
AQUIFER FOR DINE; SIERRA CLUB;           3:11-cv-08122-
CENTER FOR BIOLOGICAL                         GMS
DIVERSITY; NATURAL RESOURCES
DEFENSE COUNCIL,
              Plaintiffs-Appellants,       OPINION

                 v.

SALLY JEWELL, in her official
capacity as U.S. Secretary of the
Interior,
                 Defendant-Appellee.


      Appeal from the United States District Court
               for the District of Arizona
       G. Murray Snow, District Judge, Presiding

              Argued and Submitted
    November 21, 2014—San Francisco, California

                Filed January 26, 2015
2            BLACK MESA WATER COALITION V. JEWELL

        Before: Ronald M. Gould and Paul J. Watford, Circuit
        Judges, and Solomon Oliver, Jr., Chief District Judge.*

                       Opinion by Judge Gould


                            SUMMARY**


                           Fees and Costs

   The panel reversed in part, and vacated in part, the district
court’s judgment in an action for costs and expenses brought
by a plaintiff group of environmental and community
organizations against the federal Office of Surface Mining
Reclamation and Enforcement after plaintiff participated in
a successful challenge to OSM’s grant of a coal mining
permit revision.

    Plaintiff petitioned the agency under the Surface Mining
Control and Reclamation Act’s administrative fee-award
provision to recover costs and expenses from OSM. The
administrative law judge dismissed the fee petition based on
the conclusion that plaintiff was not “eligible,” and was not
“entitled” to costs and expenses, under 43 C.F.R. § 4.1294(b).

    The panel held that its review of the agency’s “eligibility”
determination was de novo, and its review of the


    *
   The Honorable Solomon Oliver, Jr., Chief District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
        BLACK MESA WATER COALITION V. JEWELL                  3

“entitlement” determination was for substantial evidence.
The panel concluded that plaintiff was “eligible” for fees
because it showed some degree of success on the merits, and
the agency’s contrary conclusion was error as a matter of law.
The panel vacated the portion of the district court’s decision
as related to the question of entitlement. The panel declined
to reach the issue whether plaintiff was “entitled” to fees, and
remanded for the agency to consider the issue. Finally, the
panel rejected plaintiff’s argument that the Secretary of the
Interior had waived a challenge to the reasonableness of any
award amount that the agency might grant on remand for
costs and expenses reasonably incurred for plaintiff’s
participation in the proceedings at the agency level.


                         COUNSEL

Brad A. Bartlett (argued), Western Energy Justice Center,
Durango, Colorado; Matt Kenna, Public Interest
Environmental Law, Durango, Colorado; Walton D. Morris,
Jr., Morris Law Office, P.C., Charlottesville, Virginia, for
Plaintiffs-Appellants.

Paul A. Bullis (argued), Assistant United States Attorney;
John S. Leonardo, United States Attorney, District of
Arizona; Mark S.Kokanovich, Deputy Appellate Chief,
Phoenix, Arizona, for Defendant-Appellee.
4       BLACK MESA WATER COALITION V. JEWELL

                        OPINION

GOULD, Circuit Judge:

    Black Mesa Water Coalition, et al. (Black Mesa), a group
of environmental and community organizations, sought costs
and expenses, including attorney’s and expert witness fees,
from the Federal Office of Surface Mining Reclamation and
Enforcement (OSM) after Black Mesa participated in a
successful challenge to OSM’s grant of a coal mining permit
revision. An Administrative Law Judge (ALJ) denied Black
Mesa’s fee request, and the Interior Board of Land Appeals
(IBLA) affirmed. Upon review, the district court affirmed the
agency’s final decision. Black Mesa appeals the district
court’s decision. We have jurisdiction under 28 U.S.C.
§ 1291. We reverse in part, vacate in part, and remand to the
district court with instructions to remand to the agency for
further proceedings on the question of “entitlement.”

                              I

    Black Mesa, Kendall Nutumya, and others challenged a
coal mining permit revision that OSM granted to Peabody
Western Coal Company (Peabody) for coal mining operations
in northeastern Arizona. The ALJ consolidated ten separate
challenges to the permit revision, including Black Mesa’s and
Nutumya’s, because “they involve[d] common questions of
law or fact.” See 43 C.F.R. § 4.1113. The ALJ granted one
of Nutumya’s two motions for summary decision, concluding
that OSM violated the National Environmental Protection Act
of 1969 (NEPA), 42 U.S.C. §§ 4321–4370h (2010), by failing
to prepare a supplemental NEPA analysis and by failing to
include an adequate range of alternatives to the proposed
action in the Final Environmental Impact Statement (EIS).
        BLACK MESA WATER COALITION V. JEWELL                  5

The ALJ vacated OSM’s decision to grant Peabody’s permit
revision and remanded to OSM. The ALJ denied the other
parties’ motions for summary decision as moot, including the
motion filed by Black Mesa, stating that “[e]ach applicant
sought to vacate OSM’s decision, which has now been done.
Since I can give no additional relief, their motions are now
moot.”

    Black Mesa petitioned the agency under the Surface
Mining Control and Reclamation Act’s (SMCRA)
administrative fee-award provision to recover costs and
expenses from OSM, including attorney’s and expert witness
fees, “reasonably incurred” as a result of Black Mesa’s
participation in the consolidated administrative appeal of
OSM’s permit revision decision. See 30 U.S.C. § 1275(e).
OSM moved to dismiss Black Mesa’s fee request, contending
that Black Mesa was neither “eligible” for nor “entitled” to
fees under the regulation governing agency fee awards under
SMCRA. See 43 C.F.R. § 4.1294(b). The ALJ agreed with
OSM and granted its motion to dismiss Black Mesa’s fee
petition.

    The ALJ reasoned that Black Mesa was not “eligible”
under 43 C.F.R. § 4.1294(b) because (1) the consolidation of
the proceedings did not mean that one party’s success should
be attributed to another, or in other words “does not
demonstrate that the [o]ther [p]etitioners prevailed in any part
or achieved any degree of success on the merits of their own
requests for review”; (2) Black Mesa could not have achieved
success on the merits, because its motions were dismissed as
moot; (3) the fact that Black Mesa argued similar NEPA
failures on OSM’s part as Nutumya had argued was
insufficient to show eligibility, because the ALJ relied on
additional arguments by Nutumya and no argument by Black
6       BLACK MESA WATER COALITION V. JEWELL

Mesa; and (4) the public policy of encouraging good faith
actions by the public is not advanced “simply because [Black
Mesa] challenged a government action that another person
succeeded in having remanded.” The ALJ also reasoned that
Black Mesa was not “entitled” to costs and expenses under 43
C.F.R. § 4.1294(b) because (1) its coordination allegations
did not show that Black Mesa and Nutumya “pool[ed] all the
NEPA issues” and divided them up, but instead showed that
the parties remained free to choose which arguments to make
in motions for summary decision; (2) although Nutumya’s
NEPA motion included some of Black Mesa’s discovery
materials as an exhibit, the arguments on which the ALJ
granted Nutumya’s motion did not rely on those materials;
and (3) Black Mesa “did not cause the determination of the
issues” that the ALJ reached.

    Black Mesa appealed the ALJ’s dismissal of its fee
petition to the IBLA, which affirmed on substantially similar
grounds to those stated by the ALJ. Regarding “entitlement,”
the IBLA added that no “causal nexus” supported a finding of
“entitlement,” and observed that “[o]ut of the 1,065 hours
[Black Mesa’s] counsel documented as having spent litigating
OSM’s decision, they spent a total of 5.33 hours conferring
with Nutumya’s legal team about NEPA issues.” Black Mesa
sought review of the agency’s final decision in district court,
and the district court affirmed the agency’s “entitlement”
determination as supported by “substantial evidence in the
record,” declining to reach “eligibility.”

                              II

   Ordinarily, we review IBLA decisions on the legal merits
of a proceeding to determine whether they are arbitrary,
capricious, not supported by substantial evidence, or contrary
        BLACK MESA WATER COALITION V. JEWELL                  7

to law. Akootchook v. United States, 271 F.3d 1160, 1164
(9th Cir. 2001); 5 U.S.C. § 706(2). However, the standard of
review for agency fee decisions under SMCRA’s
administrative fee-award provision at 30 U.S.C. § 1275(e) is
a question of first impression for our court. Black Mesa
argues that we review the agency’s fee “eligibility”
determinations de novo and “entitlement” determinations for
abuse of discretion. The Secretary of the Interior (Secretary)
argues that a fee-award decision by the agency under
30 U.S.C. § 1275(e) is reviewed under the Administrative
Procedure Act’s (APA) deferential standard that agency
action may only be set aside if it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law
. . . even though it involves costs and expenses (including
attorney’s fees).”

   The SMCRA fee-award provision at issue here states:

       Whenever an order is issued under this
       section, or as a result of any administrative
       proceeding under [SMCRA], 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.
8       BLACK MESA WATER COALITION V. JEWELL

30 U.S.C. § 1275(e). Under this statute, the Secretary has
issued regulatory guidance for when costs and expenses,
including attorneys’ fees, may be awarded “to any person . . .
who initiates or participates” in an agency proceeding under
SMCRA. 43 C.F.R. § 4.1294(b). A person may receive a fee
award from OSM if that person is eligible for, i.e., “prevails
in whole or in part, achieving at least some degree of success
on the merits,” and entitled to a fee award, i.e., “upon a
finding that such person made a substantial contribution to a
full and fair determination of the issues.” Id.

    A helpful circuit court case on reviewing agency fee-
award decisions under 30 U.S.C. § 1275(e) is West Virginia
Highlands Conservancy, Inc. v. Norton, 343 F.3d 239 (4th
Cir. 2003). There, the Fourth Circuit held that agency
decisions under the “eligibility” prong of its fee award
regulation are legal determinations reviewed de novo, because
whether a party achieved some degree of success on the
merits is an interpretation based on general common law
principles and not on expertise in the agency’s particular
field. West Virginia Highlands, 343 F.3d at 245–46. We
have, in other contexts, treated similar questions about party
success on the merits as questions of law reviewed de novo.
Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712, 715 (9th
Cir. 2013) (reviewing de novo “prevailing party” status under
attorney’s fees provision for § 1983 actions). Although the
agency has included language about party success on the
merits within its two-prong regulation for fee-award decisions
and SMCRA’s administrative fee-award provision allows the
Secretary of the Interior to award fees resulting from
administrative proceedings if the Secretary deems such an
award proper, we agree with the Fourth Circuit’s reasoning in
West Virginia Highlands and conclude that whether Black
Mesa “prevail[ed] in whole or in part, achieving at least some
        BLACK MESA WATER COALITION V. JEWELL                9

degree of success on the merits” is properly reviewed de
novo.

    However, the “entitlement” determination, i.e., whether
a person who participated in a SMCRA administrative
proceeding “made a substantial contribution to a full and fair
determination of the issues” in substance is a factual
determination. 43 C.F.R. § 4.1294(b). The agency’s fee-
award regulation supports this conclusion by noting that
“upon a finding” of entitlement, the agency may award fees.
Id. (emphasis added). West Virginia Highlands also
concludes that a determination of “entitlement” is a factual
finding made by the agency, and we conclude that the Fourth
Circuit’s reasoning is persuasive on that point as well. West
Virginia Highlands, 343 F.3d at 248. Because the
“entitlement” determination is a factual finding made at the
agency level, we review it under the “substantial evidence”
standard. Dickinson v. Zurko, 527 U.S. 150, 152–61 (1999)
(rejecting the “clearly erroneous” standard of review for
judicial review of agency fact-findings and reaffirming
“substantial evidence” as the appropriate standard); E. Bay
Auto. Council v. N.L.R.B., 483 F.3d 628, 633 (9th Cir. 2007).

     In summary, on the standard of review applicable here,
we hold that review of the agency’s “eligibility”
determination is de novo and its “entitlement” determination
is reviewed for substantial evidence.

                             III

   Reviewing the agency’s “eligibility” determination de
novo, we conclude that Black Mesa is “eligible” for fees
because it showed some degree of success on the merits. The
governing rule is set forth by regulation in 43 C.F.R.
10      BLACK MESA WATER COALITION V. JEWELL

§ 4.1294, governing who may receive an award of attorney
fees. With respect to eligibility, it provides that appropriate
costs and expenses, including attorney fees, may be awarded
from OSM to any 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.” 43 C.F.R § 4.1294 (b).

    The issue on eligibility for such an award of fees from
OSM is whether Black Mesa achieved “some degree of
success on the merits.” Addressing that issue on de novo
review, we are persuaded that Black Mesa did achieve a
degree of success on the merits. For one thing, Black Mesa
raised the NEPA arguments for which Nutumya prevailed at
summary decision in both Black Mesa’s Request for Review
before the agency and during the public comment period for
the Final EIS. Whether or not raising those arguments at
those stages was necessary to preserve the issues throughout
the administrative appeal process, as Black Mesa contends
and the Secretary disputes, is not crucial to our analysis.
Rather, making those arguments early in the merits stages of
the administrative proceedings shows “participation” in those
proceedings regarding the NEPA issues and supports the
conclusion that Black Mesa achieved some degree of success
on the merits. For another thing, the relief given on
Nutumya’s NEPA motion was congruent with the relief that
Black Mesa sought, a reason the ALJ gave for dismissing
Black Mesa’s motion for summary decision as moot. We
disagree with the Secretary that, based on case captions and
docket numbers, the consolidated requests for review had a
“separate, distinct character” sufficient to overcome
requirements for fee “eligibility.” The actions were separate
but related, especially on the relief sought. Moreover, we do
not think it is correct to say that whenever the agency
        BLACK MESA WATER COALITION V. JEWELL               11

dismisses one party’s motion as moot because the relief it
requested was already granted upon another party’s motion,
then the former party’s enjoyment of relief gained on motion
of another means that it achieved no success on the merits.
That would negate the permissive quality of both SMCRA’s
administrative fee-award statute and the agency’s regulatory
guidance for it. See West Virginia Highlands, 343 F.3d at
244 (characterizing SMCRA’s administrative fee-award
statute as a permissive, “whenever appropriate” type fee-
shifting provision). We hold that Black Mesa is “eligible” for
fees, and the agency’s contrary conclusion was error as a
matter of law.

                             IV

    In light of our decision on “eligibility,” we decline to
reach whether, on this record, Black Mesa was “entitled” to
fees. Instead, that issue should be remanded for the agency
to consider, because we cannot be sure how the agency will
view substantial contribution when told that Black Mesa was
in fact eligible for fees, contrary to the agency’s prior
rationale. Also, while we are not reaching and deciding the
issue of substantial contribution, we have a degree of
discomfort with the possibility that unless parties sit down
and agree to fight a fully-coordinated battle, then they must
duplicate one another’s arguments in each of their individual
briefs to preserve entitlement to fees. Under the agency’s
rationale, this would appear to require increased litigation
costs and expenses before parties could seek to recover their
requested award amounts, forcing the agency, if unsuccessful
on the merits of an administrative appeal, to pay for more
extensive briefing, if in the end the agency awarded fees. It
is more sensible to recognize that once a party has gained
some degree of success on the merits, it may then be awarded
12      BLACK MESA WATER COALITION V. JEWELL

fees only if it made a substantial contribution to a full and fair
resolution of the issues, and that the amount of any fee award
will be commensurate with its contribution to the result. We
vacate this portion of the district court’s decision as related to
“substantial contribution” and the question of entitlement.
We remand to the district court with instructions that it
remand to the agency to allow it to determine anew, in view
of our decision on eligibility, whether Black Mesa has shown
an “entitlement” to fees by making a substantial contribution
to the full and fair resolution of issues. Further, we reject
Black Mesa’s argument that the Secretary has waived a
challenge to the reasonableness of any award amount that the
agency might grant on remand for costs and expenses
reasonably incurred for Black Mesa’s participation in the
proceedings at the agency level. Should the agency award
fees to Black Mesa on remand, the Secretary may still
challenge the award’s reasonableness, and, if there was
substantial contribution to a full and fair determination of the
issues, the agency would be able to award fees in any amount
that is reasonable under the circumstances.

  REVERSED in part, VACATED in part, and
REMANDED.
