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<br />B. Substantial Likelihood of Success on the Merits <br />The Interior Board of Land Appeals, which speaks fmally for the Secxctary of dte Interior in <br />matters azising under the Surface Mining Control and Reclamation Act o!' 1977 ("SMCRA"), 30 <br />U.5.C. §§ 1201-1328, has held, with respect to the indistinguishablerest for temporary relief under <br />3011.S.C. § 1275(c), that: <br />suhstantial likelihood of success may be found where applicant has raised issues on <br />the merits of the case so "serious, substantial, difficult and doubtful" as to make them <br />appropriate for deliberative resolution in a decision on the merits rather Iltatt a <br />preliminary determination on application fur temporary relief. <br />Puwderhorn Cuu! Cu. v. Once q~ J'urface Mining Reclamutiun cYr L•nforrement (On <br />Reconsideration), 1321BI.A 36, 40 (1995).° Because the Legislature enacted the (:olorado Surface <br />Coal ~4ining Reclamation Act as part of the State's approved regulatory program for implementing <br />SMCRA, 30 C.F.R. Fart 906, "[fjederal legislative history and interpretation must control <br />construction of the state law in these circumstances as a matter of simple federal preemption." <br />Brown ,'. Red River Cou! Co.. 373 S.E.2d ti06, 610 (Va. App. 1988); .see also .Schultz v. <br />C:unsolidution C:uaJ Co., 475 S.E.2d 467, 476 (V/.V a. 1996) ("we hold that a state regulation enacted <br />pursuant to [DJest Virginia's state version of SMCRA) must be read in a manner consistent with <br />federal regulations enacted in accordance with SMCRA"). <br />Hen, the Tatums have certainly "raised issues on the merits of the case so `serious; <br />substantial, difficult and doubtful' as to make them appropriate fnr deliberative resolution in a <br />decision on the merits." Indeed, the Tatums have raised two such issues. <br />° To ensure the Court's access to this decision, the Tatums attach a copy as Exhibit 2 <br />to this memorandum. <br />-12- <br />