ELR Citation: ELR 20661
No(s). 85-1042 (4th Cir. Mar 28, 1985)

The court rules that §526 of the Surface Mining Control and Reclamation Act (SMCRA) requires the recipient of a cessation order to exhaust administrative remedies before pursuing a judicial one. Appellee Mullins Coal, who was issued a cessation order requiring it to cease mining operations after it failed to correct an unstable landslide found to be in violation of the Act by a federal reclamation officer, simultaneously sought judicial and administrative review of the order. The court follows the Sixth Circuit in ruling that the Act requires exhaustion of administrative remedies prior to pursuit of judicial relief. Section 526(a)(2) clearly conditions judicial review on compliance with subsection (b), which allows review solely on the administrative record. Appellee's interpretation renders subsection (b) meaningless. Logic and the interests of the parties support requiring exhaustion. Congress balanced industries' interest in rapid review of cessation orders, which may have potentially devastating effects on a company, against concerns for public health and the environment. The court rejects appellee's reading of the statute to provide parallel avenues of administrative and judicial review as inconsistent with SMCRA's strict administrative timetable.

Next, the court holds that this is not an appropriate case for applying the "futile gesture" exception to the exhaustion requirement. By failing to comply with the Act's regulations, which call for telephone notice to the Surface Mining Reclamation and Enforcement field office of the intention to apply for expedited five-day review, a showing in the application of substantial likelihood of prevailing on the merits before the administrative law judge (ALJ) and an express statement as to whether five-day review is waived, Mullins waived its entitlement to expedited review. As a result, the ALJ rendered his decision well within the 30-day statutory time limit. Therefore, the lower court's assessment of the futility of administrative review, as well as Mullin's quest for judicial review, were premature. Since Mullins did not exhaust its administrative remedies, the court holds, the district court should not have exercised its jurisdiction to grant Mullins a preliminary injunction, and vacates the order.

Counsel for Appellant
David Shilton
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5580

Harold Quinn, Ass't Attorney General
Department of the Interior, Washington DC 20240
(202) 343-4671

Elizabeth Tonkin
Department of the Interior, P.O. Box 15006, Knoxville TN 37901
(615) 673-5100

Morgan Scott, Ass't U.S. Attorney
P.O. Drawer H, Abington VA 24210
(703) 628-4161

Counsel for Appellee
Dennis Jones
One Flannagan Ave., P.O. Box 600, Lebanon VA 24266
(703) 889-5000