Action seeks to halt coal mining at Wishbone Hill

SUTTON — Usibelli Coal Mine Inc. should cease operations at the Wishbone Hill mine site and restore land damaged by its alleged illegal mining activities, according to a lawsuit filed by a handful of nonprofit agencies.

Spearheaded by Friends of Mat-Su, the lawsuit, filed Tuesday, challenges the validity of Usibelli’s mining permits and takes the federal Office of Surface Mining and Division of Natural Resources to task for allegedly ignoring complaints to force the mining company to stop.

“Our main contention is Usibelli does not have a valid permit,” said Kirby Spangler, Castle Mountain Coalition president, a group also listed as a plaintiff on the lawsuit. Cook Inletkeeper, Alaska Community Action on Toxics and the Sierra Club’s Alaska chapter also are included.

The groups filed a complaint with DNR in late 2011 questioning the validity of Usibelli’s mining permits, and after that department responded that the coal mining company has a valid permit, they took their complaint to OSM, which oversees DNR, Spangler said. That was Jan. 9. Since then, OSM hasn’t responded, which prompted the lawsuit.

“That leads me to believe they’re having trouble figuring out how to respond,” Spangler said. “DNR was sure quick to come back with a response there is not merit to (our claim), and we knew that’s what they wanted to say.”

While the groups that filed the lawsuit say Usibelli Coal Mining Co.’s mining permit is invalid, company spokeswoman Lorali Simon she’s not surprised by this week’s legal action.

“It seems to be the same old stuff,” she said. “The state of Alaska and Usibelli stand on our valid permits. We are operating under valid permits both for exploration and the mining permit.”

In their lawsuit, the groups maintain that when mining didn’t commence within three years of the first permit issued in 1991 to mine the property, the permit became invalid. Although the state and DNR have said Usibelli has maintained valid permits for the Wishbone Hill mine, the lawsuit claims that because the original permit was invalid, so too are all the permit renewals approved since then.

“A permit terminates by operation of law if a permittee does not commence surface coal mining operations pursuant to the permit within three years of the permit being issued,” the lawsuit says.

The term of the original permit was five years and surface coal mining didn’t happen within the first three years of that permit, the lawsuit claims. An extension of that time was granted until the end of the five-year permit, and no other extensions were granted before the permits were transferred to Usibelli in 1997.

Even so, “DNR has continued to renew the permits for the Wishbone Hill Mine approximately every five years,” according to the lawsuit.

Surface coal mining operations didn’t start at Wishbone Hill until June 2010.

Those operations, which can include clearing land, building roads and other infrastructure work, are illegal, the groups claim.

Work at the Wishbone Hill site has been mainly exploratory thus far with some infrastructure work, Simon said. At this point, Usibelli hasn’t made its final decision regarding whether it will mine for coal there.

“We’re still trying to iron out the fine details,” she said. “We’re still a ways off from full-scale mining.”

Simon said Usibelli is certain its permitting is proper and has a “strong letter” from state regulators regarding the validity of the permit.

“We’ll move forward legally as necessary,” she said. “We do not believe we are acting outside of our lawful permits.”

Along with legal fees, the groups also are asking the court to issue injunctions prohibiting Usibelli from continuing any work at the Wishbone Hill site, and ordering the company to “restore the lands and waters damaged by its illegal surface coal mining operations.”

In the mean time, Usibelli can avoid litigation by voluntarily withdrawing its permit renewal, Spangler said.

“We hope they withdraw their application for their permit renewal and go through the process of applying for a new permit,” he said. “That will give the public adequate chance to give input into the process.”

Spangler said the area has changed significantly over the two decades since the first permit was issued.

“The whole character of the area is different,” he said. “We would like the whole permit process to be revisited. We would participate in that permitting process, we would request they include current and up-to-date air and water testing and take into consideration the salmon restoration that was done on Moose Creek a few years back. These are all things that weren’t in the original permit.”

While that’s what Spangler said he hopes would happen, he said he expects Usibelli will maintain it’s position and that the lawsuit will move forward.

“We think their response will be to continue to claim their permit is valid until they’re forced to apply for a new permit,” he said. “We’ve asked DNR to force them to do that, we’ve asked the Office of Surface Mining to do that, now we’re asking the court.”

Contact reporter Greg Johnson at greg.johnson@frontiersman.com or 352-2269.