ENFORCE34390

• Permit No: C1981013
• IBM Index Class Name: Enforcement
• Doc Name: CIVIL ACTION 01-CV-38
• Violation No.: CV2000009
• Media Type: D
• Archive: No

United States Department of the Interior
OFFICE OF HL~RINGS ANC) APPErLLS
Inr<nor Baca of Land Appals
4U 1 S ullson Boulnud
.irLn6ron, Urginia 2]]01
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OFFICE OF sIIiFACE NLIl~]II,1G RECT,»9~TICSN ADID EI~VI~Et93SP
(ON R7]~1SIDERATION )
ZBL4 93-458 Decided February 9, 1995
Petition for reronsideration and request for reconsideration en Banc
of Board decision in Po+zierhorn Coal Co. v. 09'7, 129 IBLA 22 11994) .
Petition for reconsideration.granted in part and denied in part;
decision reaffirmed as clarified.
Surface Mi~Ling Control and Reclamation A~^t of 1917:
'I~oraty Aelief: Applications-Su-face Mi.ting Control
and Reclamation Act of 1977: 'I~anparary Relief : F,Vidence
A substantial. likelihoczi of suooess on tl:e merits
required to be shown by an applicant fcs t~npnrary
relief from a citation under sec. 525(c) of SM~iP.,
may be found where applicatlt has raised issues on the
merits of the case so ^seriws, substantial, difficult
and doubtful" as to make them appropriate for delihPr-
ative resolution in a decision on the merits, rather
than in a preliminary detpzmis7ation on the application
for tel~orary relief. The finding required to support
temporary relief is properly distinguished from the
basis of a final decision on the merits. Thus, when
we are unable to uphold the enforcatpnt action as a
preliminary matter on the basis of the record before
us, a showing of a substantial likelihood of success on
the merits has been made which will justify temporary
relief assuming the other statutory criteria are met.
APPFI~AFINCES: John 5. Retrum, Esq., Office of the Field Solicitor, U.S.
DeparGrnsLt of the Interior, Denver, Colorado, for the office of Surface
Mining Reclamation and Enforcement; Robert 5. Mote, Esq., office of the
Solicitor, Washington, D.C., of counsel; M. Julia Hook, Esq., and Kenneth
D. Hubbard, Esq., Denver, Colorado, for the Powderhorn Coal Company.
132 IHLA 36