ELR Citation: ELR 20301
No(s). 84-0452-A (W.D. Va. Jan 3, 1985)

The court holds that the Secretary of the Interior's failure to respond to plaintiff's request for temporary relief from a cessation order within the five days required by the Surface Mining Control and Reclamation Act renders futile further pursuit of administrative remedies by plaintiff and make the order subject to judicial review. The Secretary's inaction is the equivalent of denial of the request without notice, even if plaintiff's request for relief did not comply with defendant's regulations. The court therefore temporarily enjoins defendant from enforcing its order that plaintiff cease hauling coal over a haul road from its mine despite plaintiff's failure to exhaust administrative remedies.

Counsel for Plaintiff
Dennis E. Jones
One Flannagan Avenue
P.O. Box 600, Lebanon VA 24266
(703) 889-500

Counsel for Defendant
Elizabeth Tonkin
U.S. Department of the Interior
Office of the Solicitor, Knoxville Field Office
P.O. Box 15006, Knoxville TN 37901
(615) 673-4317