Judge rules against OSM in Usibelli Coal permit case in Alaska

A judge at the U.S. District Court for the District of Alaska on July 7, ruling on a summary judgment motion from environmental groups, said the U.S. Office of Surface Mining Reclamation and Enforcement (OSM) should have terminated two mining permits of Usibelli Coal Mine Inc. when they expired.

The plaintiffs in the case are the Castle Mountain Coalition, Cook Inlet Keeper, Alaska Center for the Environment, Alaska Community Action on Toxics, The Sierra Club, and Chickaloon Village Traditional Council. The defendants are OSM, the U.S. Department of the Interior (OSM’s parent, and Joseph Pizarchik, in his official capacity as Director of OSM. There are two Intervenor-Defendants: Usibelli Coal Mine and the State of Alaska.

Before the court were cross-motions for summary judgment filed by both sides. The court heard oral argument on the two motions on Jan. 29.

Plaintiffs challenged OSM’s decision regarding Alaska Department of Natural Resources (DNR) permitting of coal mining operations by Usibelli at the Wishbone Hill Mine near Sutton, Alaska, a community located roughly 60 miles northeast of Anchorage. At the heart of this dispute is the interpretation of the phrase “shall terminate” in the 1977 federal Surface Mining Control and Reclamation Act (SMCRA). The statute says a surface coal mining permit shall terminate if the permittee has not commenced the surface coal mining operations covered by such permit within three years of the issuance of the permit.

Plaintiffs asserted that the phrase “shall terminate” in this statute unambiguously means that the permit automatically terminates if mining operations have not commenced within three years from the date of a coal mining permit’s issuance and no extension has been granted. OSM found, and all of the defendants asserted to this court, that the statute is ambiguous and the regulatory authority may interpret, and has reasonably interpreted, it to require administrative termination proceedings to be initiated before a permit may be terminated.

But Judge Sharon L. Gleason found in the July 7 ruling that the phrase “shall terminate” is unambiguous, in that a surface mining permit terminates by operation of law if mining operations have not timely commenced under that statute unless an extension has been granted pursuant to the statute’s terms. Added the judge: “Accordingly, Castle Mountain Coalition’s Motion for Summary Judgment at Docket 36 is GRANTED; and the Office of Surface Mining Reclamation and Enforcement’s Motion for Summary Judgment at Docket 58 is DENIED. The Office of Surface Mining Reclamation and Enforcement Office’s determination that SMCRA does not require permit termination when surface coal mining operations have not commenced within three years of permit issuance and no valid extension has been granted, and that DNR therefore had good cause for not taking corrective action in response to the ten-day notices regarding the Wishbone Hill permits, is VACATED. This matter is REMANDED to the agency for further proceedings consistent with this decision.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.