dissenting:
My dissent is predicated on the fact that I believe it is the clear intent of the Legislature that the remedy of mandamus be available against the Director of the Department of Natural Resources, when it provides in W.Va. Code, 20-6-11:
“The failure of the Director to discharge the mandatory duty imposed on him by this section shall be subject to a writ of mandamus, in any court of competent jurisdiction by any private citizen affected thereby.”
The majority does not discuss this section, but concludes under our general law that a writ of mandamus is ordinarily not available if there is another adequate remedy, citing Hall v. Protan, 156 W.Va. 562, 195 S.E.2d 380 (1973), and State ex rel. Kucera v. The City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).
However, this is not a mandamus action brought under our general law, but is specifically grounded on the authority of W.Va. Code, 20-6-11. We recognized in State ex rel. Blankenship v. McHugh, W.Va., 217 S.E.2d 49, (1975), that the Legislature had the power to enlarge the writ of mandamus by making it applicable to matters where historically it was not available. McHugh relied on Boggess v. Buxton, 67 W.Va. 679, 69 S.E. 367 (1910). There, this Court held that the Legislature had the power to expand the writ of mandamus to cover election officials so that through mandamus they could be compelled to perform their duties.
There can be little doubt that W.Va. Code, 20-6-11, grants to the Director the power to prevent strip mining where undue damage will result to the environment. *189The introductory paragraph states in clear and unequivocal terms the Legislature’s policy:
“The legislature finds that there are certain areas in the State of West Virginia which are impossible to reclaim either by natural growth or by technological activity and that if surface mining is conducted in these certain areas such operations may naturally cause stream pollution, landslides, the accumulation of stagnant water, flooding, the destruction of land for agricultural purposes, the destruction of aesthetic values, the destruction of recreational areas and the future use of the area and surrounding areas, thereby destroying or impairing the health and property rights of others, and in general creating hazards dangerous to life and property so as to constitute an imminent and inordinate peril to the welfare of the State, and that such areas shall not be mined by the surface-mining process.”
Moreover, this section goes on to state that no application “shall be approved” if the Director finds that the proposed mining operation will violate the provisions of the entire surface mining and reclamation statute, W.Va. Code, 20-6-1, et seq., and the regulations promulgated thereunder. Also contained in Section 11 are additional powers granted to the Director to delete areas from the proposed application, deny the permit or take action to prevent environmental damage.1
*190In my view the scope of W.Va. Code, 20-6-11, is sufficiently broad that in those instances where it can be shown that an application for a surface mining permit violates the mandatory requirements of W.Va. Code, 20-6-1 et seq., and the Director has failed to enforce these mandatory statutory requirements or his regulations, a private citizen affected thereby may institute a mandamus action to compel him to do so.
The term “private citizen affected thereby” used in the last sentence of W.Va. Code, 20-6-11, must be taken to mean, even in the most limited context, persons who live in the immediate area where the surface mine operations are to be conducted. The plain meaning of the policy statement and the other prohibitory language set out in W.Va. Code, 20-6-11, speak of the area surrounding the location of the proposed surface mine.
Certainly the majority opinion recognizes that persons directly affected by the proposed strip mining operation have standing to invoke the administrative procedures set out in W.Va. Code, 20-6-8, -28 and -29. The point that is overlooked, however, is that the Legislature must have intended some additional remedy by including the right to a mandamus action in W.Va. Code, 20-6-11.
I believe the legislative meaning is clear. It intended that mandamus could be used where the application and supporting documents clearly show that the proposed surface mine operation is violating some mandatory requirement of the statute or regulations published under it, and the Director is not taking appropriate action to enforce the mandatory requirements.
It is at this point that a writ of mandamus is statutorily authorized to settle the matter in an expeditious *191fashion. A clear-cut legal issue is now involved: Are the mandatory duties of the Director being discharged?
The administrative remedy is not adequate if the Director chooses to ignore the statutory provisions and issues a permit. The only administrative remedy is an appeal under W.Va. Code, 20-6-28. Under this section, however, it is specifically provided:
“The filing of an appeal provided for in this section shall not stay execution of the order appealed from.”
Obviously, and as happened in this case, once the application for a surface mining permit is approved by the Director, the mining company is free to commence surface mining, and even though an aggrieved party appeals, the mining activity will not be interrupted. Since surface mining applications usually are filed for a limited area of land, it is quite possible that before the administrative appeal procedure is completed the mine operations will be finished, or at least substantially so. In any event, the damage will have been done to the aggrieved party.
The Legislature was undoubtedly aware of that portion of W.Va. Code, 20-6-28, preventing a stay of the Director’s order on appeal to the Reclamation Appeal Board. It chose to alleviate the effect of the provision in those limited instances where there was a direct violation of statutory or regulatory requirements. For this reason, the Legislature authorized the remedy of mandamus in W.Va. Code, 20-6-11. For this reason, I would have awarded the writ of mandamus.
I am authorized to state that Justice McGraw joins with me in this dissenting opinion.
“If the director finds that the operation will constitute a hazard to a dwelling house, public building, school, church, cemetery, commercial or institutional building, public road, stream, lake or other public property, then he shall delete such areas from the permit application before it can be approved.
“The director shall not give approval to surface mine any area which is within one hundred feet of any public road, stream, lake or other public property, and shall not approve the application for a permit where the surface-mining operation will adversely affect a state, national or interstate park unless adequate screening and other measures approved by the commission are to be utilized and the permit application so provides: Provided, that the one-hundred-foot restriction aforesaid shall not include ways used for ingress and egress to and from the minerals as herein defined and the transportation of the removed minerals, nor shall it apply to the *190dredging and removal of minerals from the streams or watercourses of this State.
“Whenever the director finds that ongoing surface-mining operations are causing or are likely to cause any of the conditions set forth in the first paragraph of this section, he may order immediate cessation of such operations and he shall take such other action or make such changes in the permit as he may deem necessary to avoid said described conditions.”