ELR Citation: ELR 20874
No(s). 83-0103-B (W.D. Va. Jun 13, 1983)

The court temporarily enjoins the Secretary of the Interior from entering Surface Mining Control and Reclamation Act (SMCRA) cessation orders against certain small mines, holding that the regulations interpreting the SMCRA §528 exception for mines under two acres are probably invalid. The court first notes that although it may lack jurisdiction under §526(a)(1) to hear challenges to nationwide SMCRA regulations, it has jurisdiction to decide whether the cessation order against the plaintiff violated due process, Also, §526(c) of SMCRA expressly empowers the court to grant temporary relief from restraining orders. The court then addresses whether the plaintiff has met the three prerequisites for a temporary injunction. First, it notes that all interested parties were present at the hearing and had an opportunity to be heard on the request. Next, the court finds that granting an injunction will cause no significant environmental harm since strict state environmental controls will still apply to plaintiff's mine and others like it. Finally, it rules that plaintiff has a reasonable chance of prevailing on the merits because the Secretary's regulations defining which mines qualify for the two-acre exemption unreasonably include in the acreage calculation all subsurface activities, existing roads, and mines with common ownership within a five-mile radius. The court enjoins the Secretary from proceeding against any mine in compliance with state laws governing operations of less than two acres.

Counsel for Plaintiff
Henry S. Stout Jr.
Mullins, Winston, Stout & Thomason
Law Bldg., P.O. Box 408, Norton VA 24273
(703) 679-3110

Counsel for Defendant
Morgan E. Scott, Ass't U.S. Attorney
Fed. Bldg., Abingdon VA 24210
(703) 628-4161

Larry M. Corcoran
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2306