Waters

MEMORANDUM ***

Davy Lee and Sannaraha Waters appeal from the district court’s order denying their motion for attorney’s fees and costs under the Equal Access to Justice Act (“EAJA”). We affirm.

The government was substantially justified in prosecuting the contest claim and litigating the civil action. See 28 U.S.C. § 2412 (d)(1)(A). Originally, the Waterses proposed a mining operation that would mine between two hundred and four hundred yards per day. Based on an operation of this scale, the mineral examiner’s original report concluded that there was no discovery of value.

The Supplemental Mineral Report, which was based on the revised production rates proposed by the Waterses, also concluded that there was no valuable discovery. The Supplemental Mineral Report improperly included in its calculations the *260 25% labor overhead surcharge for unemployment taxes, workers’ compensation contributions, and social security contributions — costs that would not be incurred by the proposed “mom and pop” operation. However, other labor overhead costs, such as self-employment taxes, would apply to the proposed “mom and pop” operation. The Waterses did not produce any evidence of what the…