Brooks v. Latimer

No. 13161 (W. Va. March 7, 1972)

The Director of the West Virginia Department of Natural Resources is ordered to promulgate regulations to implement a 1971 amendment to the State's strip mining statute. The request that the Director be ordered to rescind all surface mining permits issued since the enactment of the statute is denied for lack of jurisdiction.

Counsel for Plaintiff
Harvey Cohen
Martorella & Cohen
455 Fifth Avenue
Huntington, West Virginia 2501

Counsel for Defendant
Chauncey H. Browning Attorney General
Framk M. Ellison Deputy Atty. General
Charleston, West Virginia 25305

[2 ELR 20151]

Per Curiam

This proceeding in mandamus came on for decision this 7th day of March, 1972, upon the petition of Rufus Brooks, Gerald Sizemore, and Citizens to Abolish Strip Mining, Inc., by which the petitioners seek to have a writ of mandamus awarded by this Court commanding the respondent, Ira S. Latimer, Director of the Department of Natural Resources, ex officio Chairman of the Reclamation Commission, a division or part of the Department of Natural Resources, to promulgate and to make effective rules and regulations in compliance with the provisions of Article 6 of Chapter 20, Code, 1931, as amended and reenacted by Chapter 112, Acts of the Legislature, Regular Session, 1971, and in conformity with the provisions of Chapter 29A, Code 1931, as amended, commonly referred to as the Uniform Administrative Procedures Act; upon the additional prayer of the mandamus petition that the respondent, in his official capacity, be commanded forthwith to rescind all surface mining permits issued on or after March 13, 1971, the effective date of Chapter 112, Acts of the Legislature, Regular Session, 1971; upon the rule issued by this Court commanding the respondent in his official capacity to appear before the Court on February 1, 1972, to show cause why a writ of mandamus should not be awarded against him pursuant to the prayer of the mandamus petition; upon the answer of the respondent; and upon briefs and oral argument of counsel for the respective parties.

Upon consideration of all of which, the Court is of the opinion to and does hereby award a writ of mandamus, pursuant to the prayer of the mandamus petition, commanding the respondent in his official capacity forthwith to proceed to formulate, issue and promulgate all proper and needful rules and regulations pursuant to and in conformity with the statutes previously referred to in this order and to proceed expeditiously and without undue delay to perform all proper and necessary acts in order to make such rules and regulations in all proper respects effective and operative.

The Court denies the prayer of the mandamus petition that the surface mining permits previously issued be rescinded for the reason that the Court is of the opinion that it has no authority in this proceeding to decide whether such permits, or any one or more of them, should be rescinded.

Service of an attested copy of this order upon the respondent shall have the same effect as the service upon him of a formal writ of mandamus.