Ohio Valley Environmental Coalition et al v. United States Army Corps of Engineers et al

Filing 462

MEMORANDUM OPINION AND ORDER granting 452 MOTION for costs as requested in the amount of $2,814.30. Signed by Judge Robert C. Chambers on 9/28/2009. (cc: attys; any unrepresented party) (skm)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA HUNTINGTON DIVISION OHIO VALLEY ENVIRONMENTAL COALITION, et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants. v. INDEPENDENCE COAL COMPANY, et. al., Intervenor-Defendants. MEMORANDUM OPINION AND ORDER Pending before the Court is Permittee-Invervenors, Independence Coal Co., Elk Run Coal Co., and Alex Energy, Inc.'s, Motion for Costs (Doc. 452). Plaintiffs have been afforded a full opportunity to respond to Permittee-Intervenors' request and have not filed any objection. Thus, for the reasons set forth below, the motion is GRANTED in the amount of $2,814.30. Federal Rule of Appellate Procedure 39(a)(3) provides that "if a judgment is reversed, costs are taxed against the appellee." FRAP 39(a)(3). Further, FRAP 39(a) creates a presumption that costs should be awarded to a prevailing party. See FRAP 39(a) ("The following rules apply unless the law provides or the court order otherwise[.]") (emphasis added). In OVEC v. Aracoma Coal Co., the Fourth Circuit reversed two decisions by this Court, ruling in favor of Permittee-Intervenors. CIVIL ACTION NOs. 3:05-0784 3:06-0438

See generally 556 F.3d 177 (4th Cir. 2009). Accordingly, Permittee-Intervenors move for an award of costs under FRAP 39(e)(2) and FRAP 39(e)(4). Specifically, Permittee-Intervenors seek $455.00 in reimbursement for the appeal filing fee and $2,359.30 in reimbursement for their share of the cost of the trial transcript. FRAP 39 sections (e)(2) and (e)(4) provide that a prevailing party is entitled to an award of the costs of "the reporter's transcript, if needed to determine appeal[]" and "the fee for filing the notice of appeal[.]" FRAP 39(e)(2) and (e)(4). Permittee-Intervenors prevailed before the Fourth Circuit. Further, the Court FINDS that ­ because Plaintiffs relied on the trial transcript in their posttrial briefs to this Court and in their briefs to the Fourth Circuit ­ the reporter's transcript was "needed to determine appeal." Thus, Permittee-Intervenors are entitled to costs as requested and the Court GRANTS the motion in the amount of $2,814.30. The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented parties.

ENTER:

September 28, 2009

ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE