Judge rules against Wishbone Hill

WASILLA — An entry in the 1976 edition of Webster’s Third New International Dictionary has stymied efforts to mine coal in Sutton — at least for now.

U.S. District Court judge Sharon Gleason issued a ruling in the ongoing battle over the Wishbone Hill mining project Thursday. Healy-based Usibelli Coal Mine has sought to retain permits for mining there originally issued to Idemitsu Alaska, and extended through the ownership of the North Pacific Mining Corp. in the 1990s. Environmental and Alaska Native groups have sued to block progress on the mine. Most recently, the Department of Natural Resources ruled that the 1991 permits could still be used for mining. In 2015 the federal Office of Surface Mining Reclamation and Enforcement (OSM) upheld the DNR’s decision that the permits could continue.

The difference focuses on a passage in the Surface Mining Control and Reclamation Act (SMCRA), which states that a permit “shall” terminate if surface coal mining doesn’t start on a permitted property within three years.

The DNR and OSM each ruled the meaning of the word “shall” granted them discretionary power to allow the permits to continue, according to the judgment. The environmental groups argued in their appeal that the agencies were bound to cancel the permits, because of “shall.”

Part of the ruling focused around whether federal legislators, who passed the SMCRA in 1977, intended the word “shall” to be discretionary. The 1976 edition of the dictionary mentions that shall is “’used in laws, regulations, or directives to express what is mandatory,’” Gleaseon wrote. “This, according to this dictionary frequently cited by the Supreme Court, around the time Congress debated SMCRA’s termination provision an ordinary meaning of the phrase ‘shall terminate’ would denote a mandatory ending.”

Subsequent Supreme Court rulings have branded other ‘shalls’ as malapropisms, according to cases cited in Gleason’s ruling. For example, a footnote in a 1995 ruling in an immigration case noted “though ‘shall’ generally means ‘must,’ legal writers sometimes use, or misuse, ‘shall’ to mean ‘should,’ ‘will,’ or even ‘may.’”

None of a host of prior cases with similar language concerns had any bearing on the case at hand, Gleason wrote. The bottom line was that the agency isn’t allowed to decide whether to enforce the law, according to Gleason’s ruling.

“To interpret the provision as OSM has done — so as to permit an interpretation that makes termination dependent on agency action — reads additional words and conditions into the statute that simply are not there,” she wrote. “Moreover, because SMCRA sets the floor to which state programs must comply, Alaska’s statute must be in accordance with the termination provision.”

Environmental groups cheered the decision in a press release issued Thursday. Lisa Wade, a member of the Chickaloon Village Traditional Council, the government of the federally-recognized Chickaloon Native Village, said the original ruling created a threat.

“It’s shameful that DNR and OSM have allowed this outdated permit to remain in place,” she said, in the statement. “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.”

Numerous community members have pushed for the mine — and the jobs expected as result — for years, said community council president Mark Bertels. Gleason’s ruling, while probably not the final word, was deeply disappointing for many Sutton residents, Bertels said.

“I can’t speak directly for everybody, but I know the general sentiment here and I think it’s very disappointing,” he said.

Bertels doesn’t entirely discount concerns about the long-term impact coal could have on the environment. However, even given a long-term transition to renewable energy sources, coal will still be needed during any kind of transition.

Bertels also pointed to the widely — if sometimes wildly — used Jonesville Road area, reclaimed from earlier mines, as one example of how mining can benefit the local environment.

“For us, it would have been a huge shot in the arm for our local economy here, and Usibelli has already been great neighbors for years now, and already contributed to our community,” he said. “Before they even started producing coal they were employing people.”

Usibelli spokeswoman Lorali Simon was out of the office and could not immediately be reached for comment. Officials have said the price of coal was unfavorable to rapid mining development in the Sutton area in the short term.

Contact reporter Brian O’Connor at 352-2270, brian.oconnor@frontiersman.com or on Twitter @reporterbriano.