State ex rel. West Virginia Highlands Conservancy, Inc. v. West Virginia Division of Environmental Protection
In State ex rel. West Virginia Highlands Conservancy, Inc. v. West Virginia Division of Environmental Protection, 193 W.Va. 650, 458 S.E.2d 88 (1995), the Court awarded attorney's fees to various environmental groups which were granted a writ of mandamus to compel the West Virginia Division of Environmental Protection to use monies from the Special Reclamation Fund to treat acid mine drainage at bond forfeiture sites.
The Court explained in Syllabus Point 1 of Highlands that, Costs and attorney's fees may be awarded in mandamus proceedings involving public officials because citizens should not have to resort to lawsuits to force government officials to perform their legally prescribed nondiscretionary duties.
In that case, two standards for awarding attorney fees in a mandamus proceeding were established.
In syllabus point 3 of Highlands the following was stated: "where a public official has deliberately and knowingly refused to exercise a clear legal duty, a presumption exists in favor of an award of attorney's fees; unless extraordinary circumstances indicate an award would be inappropriate, attorney's fees will be allowed."
In syllabus point 4 of Highlands the following stated:
"Where a public official has failed to exercise a clear legal duty, although the failure was not the result of a decision to knowingly disregard a legal command, there is no presumption in favor of an award of attorney's fees. Rather, the court will weigh the following factors to determine whether it would be fairer to leave the costs of litigation with the private litigant or impose them on the taxpayers:
(a) the relative clarity by which the legal duty was established;
(b) whether the ruling promoted the general public interest or merely protected the private interest of the petitioner or a small group of individuals;
(c) whether the petitioner has adequate financial resources such that petitioner can afford to protect his or her own interests in court and as between the government and petitioner."