ENFORCE34390

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

__ _ _ _ ~ ,.y_ ~,.. „~
D3IA 93-458
the nature of the relief which the statutory provision provides,
i.e., a stay oz injunction pending ad<r,in;~cr*ative review on the
merits. One of the basic criteria appliEd by crourt8 and by this
Board in its quasi-judicial a~;*+«trative review role when con-
sidering such relief is the moving party's likelihood of suers
on the merits. ~. e•a•, Placid Oil Co. v. U.S. Denat~nent of
the Interior, 491 F. Supp. 895 (N.D. T~Sas 1980); Marathon oil
Co., 90 IBIA 236, 93 I.D. 6 (1986); 43 CFR 4.21(b)(2) (58 FR 4943
(Jan. 19, 1993)). Where the balance of hardship to the parties
frtm not granting temporary relief tips decidedly in favor of the
applicant, we find that in order to justify temporary zeli,ef it
is not necessa[y that the applicant's riot to prevail on the
merits of the controversy be free from doubt where he "has raised
questicxis going to the merits so serious. substantial, difficult
and doubtful, as to make than a fair grau~d for litigation and
thus for more deliberative investi.gatirn." Hamilton watch Co. v.
8~~, 206 F.2d 738, 740 (2nd Cir. 1953), oted ~ Placid oil
C~ v. U.S. Deu3r'Ctent of thg Interior, 491 F. Supp. at 905;
Terra Club, 108 IBLA 381, 384-85 (1989). Upon review of the
record in the present case, we~must affina the Pdministrative
Law Judge on the groiusd that this standard has been met. 7/
Z/ Regardless of any deficiency perceived by oSM in the wording
of the ~++~*+;~tSative Lang Judge's ruling front the bench, we note
that the Board is vested with de now review authority to decide
the question on appeal from the decision of the Achninistrative
Law Judge. U.S. Fish b W' dlife Service, 72 IBI.A 218 (1983)).
129 IHIA at 28. Recognizing that action by the State regulatory authority
which is not "arbitrary, capriciws, or an abuse of discretion" under the
State pt+ogram shall be considered "appropriate action° to secure abatement
of a violation, 30 CFR 842.11(b)(1)(ii)(H)(2), we found that based on the
retrord `Paderharn established a substantial likelihood of stux~ess on the
ground that the State NCV was not an abuse of discretion under the State
pzcxgam and, hence, that the 0.41 citation was improvidently issued."
129 I8i~11 at 29.
As grounds for re~caassiclesation, 0.41 argues the meaning of the term
"lika].iTiood, " asserting it means "moa:e likely than not' rather than a mere
possibility. '1Ttus, OSM contends the term "substantial likelihood" recP,;*es
a showing that the applicant is "substantially" more likely than not to
prevail. Conae>;n i5 expressed that the Baird is adopting a standard based
on a substantial "possibility" of success. OSM asserts that the "balance
of hardship," a term frequently utilized in cases inwlving stays and
injunctive relief, is not found in the language of SMCRA. Prather, 0.4!
asserts that use of such an analysis in granting injunctive relief under
132 IEIA 36