Usibelli, resident groups meet in federal court

ANCHORAGE — Following a hearing Tuesday, a federal court judge has promised to rule on whether he has authority to stop Usibelli Coal Mine from opening up Wishbone Hill near Sutton.

The lawsuit was filed in May on behalf of a coalition of Friends of Mat-Su, the Castle Mountain Coalition, Cook Inletkeeper, Alaska Community Action on Toxics and the Alaska Chapter of the Sierra Club.

“This is a citizen enforcement action brought by Friends of Mat-Su on behalf of themselves, their members and supporters, and the general public against defendant Usibelli Coal Mine Inc. for conducting surface coal mining operations at the Wishbone Hill Mine without a valid permit in violation of the Surface Mining Control and Reclamation Act of 1977,” attorneys for the coalition, Brook Brisson, Katherine Strong and Victoria Clark, wrote in the initial suit.

A later filing states that the groups hope to “protect the environment and community of the Matanuska Valley from the adverse impacts” of mining.

The groups allege the mine’s permits expired in 1996 when mining didn’t commence in time under the company that then owned the rights to mine there. A review by the Office of Surface Mining last month also questioned the permits validity.

But the state of Alaska disagrees, saying Usibelli and the two companies that owned the leases before Usibelli have had valid permits

In federal court, Usibelli argues that U.S. District Court Judge John Sedwick doesn’t have jurisdiction to rule because mining permits are a state function, not a federal one.

“Alaska’s statutes exclusively govern Usibelli’s permits and its surface coal mining activities,” James Leik, attorney for Usibelli, wrote in a motion seeking to have the federal lawsuit dismissed.

Usibelli argues that in states that exercise mine permitting powers, a clause in federal regulations that allows citizens to file lawsuits to stop mining doesn’t apply.

The coalition’s attorneys disagree.

“(The) citizen suit provision remains in effect in states with approved regulatory programs, like Alaska. The statutory scheme established by Congress for the regulation of coal mining specifically contemplated that federal courts would exercise this jurisdictional grant,” according to a motion opposing Usibelli’s motion to dismiss the case.

Tuesday, both sides met to argue the case. Sedwick said he’d issue a written ruling. By Thursday afternoon none had been released.

Contact reporter Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.