Court ruling favors Castle Mountain

Federal court remands Usibelli Coal’s Wishbone Hill permitting issue back to Office of Surface Mining Reclamation

A U.S. District Court in Anchorage has vacated a federal agency’s decision to allow Usibelli Coal to proceed with coal mining operations at Wishbone Hill Mine, northeast of Anchorage, for lack of a valid permit.

In a ruling handed down on July 7, U.S. District Judge Sharon Gleason found that the Surface Mining Control and Reclamation Act was clear that a surface mining permit terminates by operation of law in mining operations have not commenced within thee years of permit issuance and no valid extension has been granted.

Gleason vacated an Office of Surface Mining Reclamation and Enforcement determination that SMCRA does not require permit termination when surface coal mining operations have begun within three years of permit issuance, with no valid extension granted and that the Alaska Department of Natural Resources therefore had good cause for not taking corrective action, and remanded the case back to the agency.

The ruling came in an administrative appeal from the Castle Mountain Coalition, Cook Inletkeeper, Alaska Center for the Environment, Alaska Community Action on Toxics, the Sierra Club, and the Chickaloon Village Traditional Council, collectively as the Castle Mountain Coalition, against the Office of Surface Mining Reclamation and Enforcement, with Usibelli Coal Mine and the state of Alaska as intervenor-defendants.

The Chickaloon Village Traditional Council was represented by Earthjustice.

Trustees for Alaska, a non-profit public interest environmental law firm, represented the Castle Mountain Coalition, Alaska Center for the Environment, Alaska Community Action on Toxics, Cook Inletkeeper and the Sierra Club in the case.

The Surface Mining Control and Reclamation Act of 1977 (SMCRA) is the primary federal law that regulates the environmental effects of coal mining in the United States. SMCRA created two programs: one for regulating active coal mines and a second for reclaiming abandoned mine lands.

The Castle Mountain Coalition, including the federally-recognized Ahtna Athabascan tribe at Chickaloon, challenged the Office of Surface Mining’s decision regarding the state’s permitting of coal mining operations by Usibelli at Wishbone Hill Mine near Sutton, about 60 miles northeast of Anchorage. The Wishbone Hill area has been important to members of the tribe for thousands of years for hunting, fishing, spiritual and cultural activities.

“It’s shameful that DNR and OSM have allowed this outdated permit to remain in place,” said Lisa Wade, a member of the Chickaloon Village Traditional Council, in a statement released by Castle Mountain Coalition.

“Usibelli is trying to start up a toxic coal strip mine on lands that are sacred to us, using a permit that was issued 25 years ago. This mine threatens our children’s health, our salmon, our water and air quality, our traditions, and our way of life,” Wade said.

At the heart of the dispute was interpretation of the phrase “shall terminate” in SMCRA. Defendants had argued that the phrase was ambiguous and required administrative termination proceedings to be initiated before a permit is terminated, but the judge ruled that the phrase was unambiguous.

Two permits for Wishbone Hill were issued by DNR in September 1991, and in September 1995, DNR approved the transfer of the permits to North Pacific Mining Corp. In January 1996, NPMC sought to renew the permits and DNR renewed the permits for five years, ending on Sept. 4, 2001.

In December 1997, DNR approved the transfer of the permits to Usibelli, and then in April 2001, Usibelli applied to renew the permits for an additional five years. In 2002, DNR renewed the permits until September 2006, and then in November 2006, DNR renewed the permits again, for five years ending in November 2011.

The court noted that neither Usibelli’s 2001 permit renewal request nor its 2006 permit renewal request contained a request for an extension of time to begin mining operations, and the coal mining operations from the Glenn Highway to the project site.

DNR most recently renewed the permits in October 2014.

Trustees for Alaska submitted a citizen complaint on behalf of the plaintiffs and others in November 2011,asserting that the permits were terminated by operation of law on Sept. 2, 1996 because no mining operations had commenced by then. But DNR responded that it had properly renewed the permits.