Castle Mountain Coalition et al v. Office of Surface Mining Reclamation and Enforcement et al
Filing
77
ORDER: on Cross-Motions for Summary Judgment 36 and 58 . Signed by Judge Sharon L. Gleason on 07/07/2016. (AEM, CHAMBERS STAFF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
CASTLE MOUNTAIN COALITION, et al.,
Plaintiffs,
v.
OFFICE OF SURFACE MINING
RECLAMATION AND ENFORCEMENT,
et al.,
Defendants,
and
Case No. 3:15-cv-00043-SLG
USIBELLI COAL MINE, INC. and STATE
OF ALASKA,
IntervenorDefendants.
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
This is an administrative appeal from a decision of the Office of Surface Mining
Reclamation and Enforcement (OSM). Plaintiffs are Castle Mountain Coalition, Cook Inlet
Keeper, Alaska Center for the Environment, Alaska Community Action on Toxics, The
Sierra Club, and Chickaloon Village Traditional Council (collectively, Castle Mountain).
Defendants are comprised of OSM, the United States Department of the Interior, and
Joseph Pizarchik, in his official capacity as Director of OSM (collectively, Federal
Defendants). There are two Intervenor-Defendants: Usibelli Coal Mine, Inc. and the State
of Alaska. Coal River Mountain Watch appears as amicus curiae. Before the Court are
cross-motions for summary judgment filed by Castle Mountain and the Federal
Defendants. 1 The Court heard oral argument on the two motions on January 29, 2016. 2
I.
BACKGROUND
Plaintiffs are several non-profit organizations and the governing body of a
federally-recognized Native Village. They assert that their “members, supporters, and
citizens
have
health,
subsistence,
cultural,
economic,
recreational,
scientific,
environmental, aesthetic, educational, conservation, commercial, and other interests in
the Matanuska Valley.” 3 They challenge OSM’s decision regarding the State of Alaska’s
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 following statute of the Surface Mining Control and Reclamation Act (SMCRA):
[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: Provided, That the
regulatory authority may grant reasonable extensions of time upon a
showing that such extensions are necessary by reason of litigation
precluding such commencement or threatening substantial economic loss
to the permittee, or by reason of conditions beyond the control and without
the fault or negligence of the permittee . . . . 4
1
See Docket 36 (Castle Mountain’s Motion for Summary Judgment); Docket 58 (Federal
Defendant’s Cross-Motion for Summary Judgment). With regard to Castle Mountain’s motion, the
Federal Defendants responded at Docket 60; Usibelli and the State of Alaska opposed the motion
at Dockets 61 and 62, respectively; Castle Mountain replied at Docket 65; and amicus curiae Coal
River Mountain Watch filed a brief in support of the motion at Docket 51-1.
2
Docket 76 (Minute Entry).
3
See Docket 19 (First Amended Complaint) at 3–6.
4
30 U.S.C. § 1256(c).
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Plaintiffs assert 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 assert 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.
The implementation of SMCRA is overseen by the Secretary of the Interior through
OSM.
SMCRA establishes minimum nationwide standards for surface coal mining
operations, but it also allows states to assume primary jurisdiction (primacy) over the
regulation of surface coal mining within the state if the Secretary approves a state
program that “provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of [the Act].” 5 However, in primacy states
OSM retains certain enforcement powers under § 1271 of the Act. This statute provides
that whenever the Secretary has reason to believe that any person is in violation of any
requirement of the Act or any permit condition required by it, “the Secretary shall notify
the State regulatory authority” by issuing a ten-day notice (TDN), so termed because if a
state regulatory agency “fails within ten days after notification to take appropriate action
to cause said violation to be corrected or to show good cause for such failure and transmit
notification of its action to the Secretary, the Secretary shall immediately order Federal
5
30 U.S.C. § 1253.
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inspection of the surface coal mining operation at which the alleged violation is
occurring . . . .”6 Moreover, if a primacy state is not enforcing any part of its program,
SMCRA states that “the Secretary may provide for the Federal enforcement, under the
provisions of section 1271 of [the Act], of that part of the State program not being enforced
by such State.”7
The Secretary approved Alaska’s program (ASCMCRA or the Alaska Program) in
May 1983, thereby making the Alaska Department of Natural Resources (DNR) the
primary regulatory authority for all surface coal mining operations on non-federal and nonIndian lands within Alaska. 8 Both the State of Alaska and Usibelli maintain that because
the Secretary approved the Alaska Program, this case should be determined under
Alaska law and the federal statute is “largely irrelevant.” 9 The Court disagrees. SMCRA
sets the minimum standards applicable throughout the nation; state programs that
regulate surface coal mining must do so “in accordance with the requirements” of the
federal Act. 10 Accordingly, a state’s provisions may be more stringent—but not less
stringent—than SMCRA’s requirements. 11 In accordance with this requirement of federal
6
30 U.S.C. § 1271(a)(1).
7
30 U.S.C. § 1254(b).
8
30 C.F.R. § 902.10; see also AS 27.21.010 et seq.
9
See Docket 62 (State Opp.) at 3–4; Docket 61 (Usibelli Opp.) at 11.
10
See 30 U.S.C. §§ 1253(a), 1255.
11
See, e.g., Hodel v. Va. Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 289 (1981)
(“Appellees’ claims accurately characterize the Act insofar as it prescribes federal minimum
standards governing surface coal mining, which a State may either implement itself or else yield
to a federally administered regulatory program.”).
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law, the Alaska termination statute substantially tracks the language of SMCRA, as it
must. This case concerns the interpretation of the federal termination provision, with
which Alaska’s parallel provision must, at a minimum, be in accord.
SMCRA prohibits surface coal mining without a permit. 12 Permits are generally
valid for five years. However, § 1256(c) of the Act, cited above, provides that a permit
“shall terminate” if mining operations do not commence within three years of the permit
issuance and sets out the two circumstances when an extension can be granted. A
regulatory authority can also renew permits—which is distinct from extending the time to
commence mining. 13 In conformance with SMCRA, Alaska’s statutory framework tracks
these federal provisions. 14
Pursuant to the Alaska Program, DNR first issued two permits for the Wishbone
Hill Coal Project to Idemitsu Alaska, Inc. in September 1991. 15 Idemitsu did not start
surface coal mining operations within three years after issuance of the permits. In August
1994, after receiving a request for an extension from Idemitsu, DNR extended the time to
start mining operations to September 4, 1996. 16 In September 1995, DNR approved the
transfer of the Wishbone Hill permits to North Pacific Mining Corporation (NPMC). 17 In
12
30 U.S.C. § 1256(a); see also 30 C.F.R. § 773.4(a).
13
See 30 U.S.C. § 1256(d).
14
See AS 27.21.010 et seq.
15
A.R. 1382 (Docket 29-1 at 44–49) (Permits).
16
A.R. 1345 (Docket 29-1 at 8) (Letter Dated August 3, 1994).
17
A.R. 1202 (Docket 28-9 at 27) (Letter Dated September 19, 1995).
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January 1996, NPMC wrote to DNR, seeking information on the requirements for renewal
of the permits. 18 After additional correspondence, DNR renewed the permits for a fiveyear period ending September 4, 2001. 19 DNR’s public notice of its permit renewal
decision stated “[t]he applicant has again requested an extension for beginning mining
due to ongoing marketing efforts.” 20 In a letter accompanying the 1996 permit renewal,
DNR informed NPMC that “should mining not commence within this renewal term, then
due to the length of time since the original permit application work was completed no
further renewals will be considered without an extensive review of the original applications
and the baseline information they were based on.” 21 In the decision under review in this
case, OSM found that in the 1996 permit renewal DNR “did not expressly address the
requirements of AS 27.21.070(b) [Alaska’s termination provision] and did not expressly
grant a continuation of extension of time to commence mining.” 22
In December 1997, DNR approved the transfer of the permits to Usibelli, subject
to the conditions and stipulations of the original permits. 23 In April 2001, Usibelli applied
for a renewal of the permits for an additional five-year term. 24 In 2002, DNR renewed the
18
A.R. 1206 (Docket 28-9 at 24).
19
A.R. 1154–54 (Docket 28-8 at 4–5).
20
A.R. 1150 (Docket 28-8 at 1).
21
A.R. 1141 (Docket 28-7 at 15).
22
A.R. 14 (Docket 26-2 at 13-14).
23
A.R. 1127 (Docket 28-7 at 1).
24
A.R. 1075 (Docket 28-6 at 5–6).
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permits until September 2006. 25 In November 2006, DNR renewed the permits for
another five-year term expiring in November 2011. 26 Neither Usibelli’s 2001 permit
renewal request nor its 2006 permit renewal request contained a request for an extension
of the time to commence mining operations; likewise, each permit renewal by DNR was
silent in that regard. 27 Coal mining operations at Wishbone Hill did not begin until June
2010, when Usibelli started building a road from the Glenn Highway to the project site. 28
DNR renewed the permits most recently in October 2014. 29
Castle Mountain asserts that it “became aware of the invalidity of the permits and
unpermitted coal mining operations” in September 2011 when reviewing DNR’s 2011
proposal to renew the permits. 30 In November 2011, Trustees for Alaska submitted a
citizen complaint to DNR on behalf of several groups including Plaintiffs, asserting that
the permits had terminated by operation of law on September 4, 1996, because no mining
operations had commenced by that date. 31 DNR responded in December 2011, asserting
that it had properly renewed the permits in 1996. DNR added that “while activities prior
to 2010 might not rise to the level of ‘coal mining operations’ as defined by [ASCMCRA],
25
A.R. 1027-37 (Docket 28-4 at 12-22).
26
A.R. 928–30 (Docket 28-1 at 4–6).
27
See A.R. 1075 (Docket 28-6 at 5–6); A.R. 931 (Docket 28-1 at 7).
28
See Docket 19 at 13, ¶ 64; Docket 24 at 12, ¶ 64; Docket 35 at 10, ¶ 64; Docket 23 at 8, ¶ 64.
29
See A.R. 40–53 (Docket 26-3 at 22–30, Docket 26-4 at 1–5).
30
Docket 19 (FAC) at 13, ¶ 65.
31
A.R. 242 (Docket 26-6 at 15).
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coal mining operations did commence as of 2010.”32 DNR concluded that the Wishbone
Hill permits were “valid and enforceable, and therefore there is no activity that warrants a
Cessation Order to be issued under [the applicable state regulation].” 33
On December 14, 2011, Trustees for Alaska sent a letter to OSM captioned
“Citizen Complaint” asserting that Usibelli was conducting surface coal mining operations
at Wishbone Hill without valid permits in violation of ASCMCRA. 34 In response, OSM
issued TDNs to DNR that informed DNR of the Trustees’ letter and directed DNR to
respond with an explanation of what action it intended to take or why it did not believe a
permit deficiency existed. 35
On January 6, 2012, DNR provided a comprehensive response to OSM in support
of its position that “the Alaska Program has taken all appropriate action necessary in
affirming that the Wishbone Hill permits are valid and therefore declining an inspection
and cessation order.”36 DNR’s response acknowledged that the Alaska Program requires
extensions to commence operations to be addressed in the notice of renewal decisions,
and that its 2002 and 2006 permit renewal decisions did not “contain a discussion of
extensions.”37 But DNR maintained that “by granting a renewal of the permit with full
32
A.R. 247 (Docket 26-16 at 24).
33
A.R. 247 (Docket 26-6 at 24).
34
A.R. 249 (Docket 26-6 at 26).
35
A.R. 746–47 (Docket 27-5 at 12–13).
36
A.R. 679 (Docket 27-2 at 20).
37
A.R. 683–84 & n.27 (Docket 27-3 at 4–5 & n.27).
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knowledge of the status of Usibelli’s operations (i.e., that coal mining operations had not
begun), DNR was implicitly granting an extension when it granted the permit renewals in
2002 and 2006.”38 And while DNR acknowledged that extensions of the date to begin
mining operations “should be documented in the permit renewal notices,” it asserted that
“the failure to do so does not lead to an automatic termination of the permits under the
extension statute.”39
In July 2012, OSM issued its initial evaluation of DNR’s January 2012 response
and concluded that “DNR’s assertion that the permits are valid is not supported by the
facts or applicable law.” 40 OSM did not observe any ambiguity in the relevant statutes;
rather, it repeatedly observed that under those statutes, “a permit terminates by operation
of law if a permittee does not begin surface coal mining operations under the permit within
three years after the permit is issued.” 41 OSM found that DNR had not explicitly granted
NPMC’s extension request in 1996, and concluded that as a result, the “permits expired
on September 4, 1996, by operation of AS 27.21.070(b) when NPMC failed to commence
mining by that date.” OSM added that “[e]ven if one assumed that DNR’s 1996 permit
renewal and extension were valid, the subsequent renewals in 2002 and 2006 appear not
to have been valid because, once again, neither [Usibelli] nor DNR seem to have made
the showing or findings required by AS 27.21.070(b) to justify an extension of time to
38
A.R. 683–84 (Docket 27-3 at 4–5).
39
A.R. 684–85 (Docket 27-3 at 5–6).
40
A.R. 640 (Docket 27-1 at 4).
41
Id. See also A.R. 636 (Docket 27 at 163).
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commence mining.” 42
OSM’s July 2012 initial evaluation discussed and rejected DNR’s “implicit
extension” theory, finding it to be at odds with the requirements of AS 27.21.070(b). OSM
concluded that based on DNR’s submission to date, it could not “make the determination
that the standards for appropriate action or good cause for failure to take action have
been met because information is missing from the record that may be available from
[DNR].” 43 OSM accorded DNR an additional ten days to provide any supplemental
information in support of its position.
In August 2012, DNR provided a lengthy supplemental response that challenged
OSM’s authority to use a ten-day notice process in this circumstance and reiterated
DNR’s “implicit extension” theory. 44 DNR also asserted that even if OSM had the authority
to use the TDN process, it should retract its TDNs for Wishbone Hill because DNR’s
decision regarding the 2011 permit renewal was then pending. 45
In November 2014, OSM issued its final decision on Castle Mountain’s complaint
that is the subject of this appeal. 46 OSM first found that it had the authority to issue the
42
A.R. 642 (Docket 27-1 at 6).
43
A.R. 644 (Docket 27-1 at 8).
44
See A.R. 212–36 (Docket 26-5 at 12–23, Docket 26-6 at 1–13.).
45
DNR cited an OSM directive that provided, “OSM will not review pending RA [Regulatory
Authority] permitting decisions and will not issue a TDN for an alleged violation involving a permit
defect where the RA has not taken relevant permitting action (e.g., permit issuance, permit
revision, permit renewal, or transfer, assignment, or sale of permit rights).” A.R. 234 (Docket 266 at 9).
46
A.R. 7–25 (Docket 26-2 at 7–18, Docket 26-3 at 1–7).
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ten-day notices in this context. OSM then reaffirmed its prior determination that DNR had
not followed the appropriate procedures in connection with extensions of the time for the
permit holders to commence mining operations. In this regard, OSM again rejected
DNR’s implicit extension theory. But OSM reversed its earlier position regarding permit
termination and concluded that federal law does not require surface mining permits to
terminate by operation of law when mining operations have not commenced; rather, OSM
concluded that a state may permissibly interpret SMCRA to require that an administrative
proceeding must be initiated to terminate a permit based on a failure to commence mining
operations before the permit can be terminated. OSM then found that “DNR failed to
[initiate a termination proceeding], and, consequently, Usibelli was not operating without
a permit.” 47
OSM presented two primary reasons in support of its conclusion that SMCRA does
not mandate permit termination as a matter of law when an extension of the time to
commence mining operations has not been sought or obtained. First, OSM observed that
“[u]nder the Chevron line of precedent, if SMCRA is silent on the issue of whether
termination of permits should automatically result when permits are not commenced
within three years, then [OSM] may permissibly interpret the statute (and our regulations
implementing the statute) as either effecting an automatic termination or not doing so, so
long as the interpretation it adopts is reasonable.”48 Second, OSM cited to cases that
47
A.R. 8 (Docket 26-2 at 8).
48
A.R. 20 (Docket 26-3 at 2); see Chevron, U.S.A., Inc. v. Nat. Res. Defense Council, Inc., 467
U.S. 837, 842–45 (1984).
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recognize the severity of an automatic forfeiture and concluded that “if forfeiture is not
mandated by ‘clear and unequivocal’ language in SMCRA and the applicable Federal
regulations, then we should not construe our statute and regulations as imposing this
harsh penalty.” 49 Accordingly, OSM found DNR’s position regarding permit termination
“consistent with both the approved Alaska regulatory program and with the Federal
regulations and is no less stringent than section 506(c) of SMCRA [the federal termination
provision].” OSM also found that “[t]he draconian and counterproductive remedy of
shutting Usibelli down would run counter to the second purpose of section 506(c),
ensuring the prompt development of the nation’s coal resources.” OSM concluded that
DNR “had ‘good cause’ for not taking action against Usibelli for operating without a
permit.” But OSM stated that DNR “has an affirmative duty to monitor whether timely
mining operations are occurring and to issue prompt determinations in cases where
mining operations have not commenced within three years.” It directed DNR to work with
OSM to formulate “a written Action Plan to address [DNR’s] failure to implement [its]
program provisions on the timely commencement of mining operations.” 50
Castle Mountain initiated this action in federal district court in March 2015 seeking
to vacate and set aside OSM’s determination.
49
A.R. 21 (Docket 26-3 at 3); see also United States v. Model Ford V-8 De Luxe Coach, Motor
No. 18-3306511, 307 U.S. 219, 226 (1939); Am. Maritime Ass’n v. Blumenthal, 590 F.2d 1156,
1165 (D.C. Cir. 1978).
50
A.R. 22–24 (Docket 26-3 at 4–6).
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II.
JURISDICTION
Plaintiffs have asserted that the Court has subject matter jurisdiction over this
action pursuant to 5 U.S.C §§ 702–06 (Administrative Procedures Act or APA), 28 U.S.C.
§§ 2201–02 (declaratory judgments), and 28 U.S.C. § 1331 (federal question jurisdiction).
Federal courts lack jurisdiction over APA challenges to agency actions when
Congress has provided another “adequate remedy.” 51 The Federal Defendants assert
that SMCRA’s citizen suit provision would have provided another adequate remedy to
Castle Mountain such that Plaintiffs are precluded from bringing an action under the APA.
However, to bring a citizen suit under SMCRA, a would-be plaintiff must, as a general
rule, give the regulating entity written notice of the violation sixty days before filing the
action. Here, it is undisputed that no such sixty-day notice was given. Therefore, the
Federal Defendants maintain that Castle Mountain cannot bring this action at all because
Castle Mountain did not provide sixty days’ notice to the Secretary as required by SMCRA
before commencing this lawsuit. 52
Nor, argue the Federal Defendants, can Castle
Mountain bring an APA challenge because it had an alternative adequate remedy of
which it failed to avail itself. 53
The Federal Defendants maintain that Castle Mountain could have brought a
citizen suit under § 1270(a)(2), which provides:
51
5 U.S.C. § 704; see also Brem-Air Disposal v. Cohen, 156 F.3d 1002, 1004 (9th Cir. 1998).
52
Docket 59 (Memorandum) at 22–23.
53
See Or. Nat. Res. Council v. U.S. Forest Serv., 834 F.2d 842, 851 (9th Cir. 1987) (“Where
plaintiffs may otherwise proceed under the citizen suit provision, they should not be allowed to
bypass the explicit requirements of the Act . . . through resort to . . . the APA.”).
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[A]ny person having an interest which is or may be adversely affected may
commence a civil action on his own behalf to compel compliance with this
chapter—
....
(2) against the Secretary . . . where there is alleged a failure of the Secretary
. . . to perform any act or duty under this chapter which is not discretionary
with the Secretary . . . . 54
The Federal Defendants assert that this citizen suit provision applies because “the
substance” of Castle Mountain’s allegations is that “the Secretary had a non-discretionary
duty, which she failed to fulfill, to order a federal inspection and issue a cessation order
because unpermitted mining was taking place at Wishbone Hill.” 55 Castle Mountain
counters that its challenge is limited to the review of a discretionary act by the agency
that falls under the APA, an issue which it frames as whether “OSM’s determination that
the Alaska Department of Natural Resources . . . ha[d] shown good cause for not taking
action in this case” was based on an “unlawful interpretation of SMCRA.” 56 Plaintiffs
assert they principally seek declaratory relief and vacatur, and not an order compelling
OSM to undertake a non-discretionary act. 57 Thus, Castle Mountain asserts that the
54
30 U.S.C. § 1270(a)(2). Other types of citizen suits are authorized in 30 U.S.C. § 1270(a)(1).
But that provision has been interpreted to apply only to suits against operators, including the
government when it functions as an operator. See Ok. Wildlife Fed’n v. Hodel, 642 F. Supp. 569,
571–72 (N.D. Okla. 1986).
55
Docket 59 at 21.
56
Docket 65 (Reply) at 9.
57
Id. See also Docket 19 (First Amended Complaint) at 17; but see Docket 37 (Castle Mountain’s
Memorandum in Support of Plaintiffs’ Motion for Summary Judgment) at 43 and Docket 65 (Reply)
at 33, in which Castle Mountain also asks the Court to “order the agency to conduct a federal
inspection and to take additional appropriate actions,” a position it later retracted at oral argument.
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citizen suit provision in SMCRA does not apply and the Court has subject matter
jurisdiction under the APA.
OSM’s enforcement duties upon receipt of a citizen complaint are set forth in 30
U.S.C. § 1271(a)(1). 58 That provision does not assign any non-discretionary duties to the
agency unless and until the Secretary has found “reason to believe” that a violation exists.
Here, Castle Mountain takes issue with OSM’s finding that the agency did not have reason
to believe that a violation had occurred and asserts that the finding is not in accordance
with the law, specifically § 1256(c). Castle Mountain’s First Amended Complaint, as
framed, does not directly concern the Secretary’s non-discretionary actions or duties, and
does not seek to compel the Secretary to take some action. 59 Accordingly, the citizen
suit provision in § 1270(a)(2) does not provide a jurisdictional basis for the Complaint;
thus, the Court has jurisdiction under the APA and 28 U.S.C. § 1331. 60
58
30 U.S.C. § 1271(a)(1) provides in part that:
Whenever, on the basis of any information available to him, including receipt of
information from any person, the Secretary has reason to believe that any person
is in violation of any requirement of this chapter or any permit condition required
by this chapter, the Secretary shall notify the State regulatory authority, if one
exists, in the State in which such violation exists. If no such State authority exists
or the State regulatory authority fails within ten days after notification to take
appropriate action to cause said violation to be corrected or to show good cause
for such failure and transmit notification of its action to the Secretary, the Secretary
shall immediately order Federal inspection of the surface coal mining operation at
which the alleged violation is occurring . . . .
59
See Docket 19 (FAC) at 17; see also Ok. Wildlife Fed’n, 642 F. Supp. at 570 (“The Court’s
jurisdiction under § 1270(a)(2) is limited to compelling the Secretary to take some action.”).
60
See Chrysler Corp. v. Brown, 441 U.S. 281, 317 n.47 (1979) (citing Califano v. Sanders, 430
U.S. 99 (1977)) (“Jurisdiction to review agency action under the APA is found in 28 U.S.C.
§ 1331.”).
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III.
STANDING AND RIGHT TO SUE
The State of Alaska challenges Castle Mountain’s standing to bring this case.
Under Article III of the Constitution, “[t]he jurisdiction of the federal courts is limited to
‘cases’ and ‘controversies.’” 61 The Supreme Court has deduced a set of requirements
that make up the constitutional minimum of standing:
[A] plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete
and particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision. 62
Castle Mountain maintains that each Plaintiff “has a mission to protect the
Matanuska Valley and traditional Tribal lands from improperly permitted coal mining”
where their members and Tribal citizens “reside near, visit, or otherwise enjoy the
Matanuska Valley and the mine site for numerous purposes, including recreation, wildlife
viewing, and cultural and subsistence practices.” 63 No party asserts that these interests
do not satisfy the requirements for Article III standing.
However, in addition to Article III standing, “a statutory cause of action extends
only to plaintiffs whose interests ‘fall within the zone of interests protected by the law
61
Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1138 (9th Cir. 2013) (quoting U.S. Const. art. III,
§ 2).
62
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992); Hunt v. Wash. State Apple
Adver. Comm’n, 432 U.S. 333, 343 (1977)); see also Spokeo, Inc. v. Robins, 136 S. Ct. 1540,
1547 (2016).
63
Docket 37 at 24.
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invoked.’” 64 The State argues Plaintiffs lack standing because Plaintiffs’ “interests are not
within the zone-of-interest that [the termination] provision seeks to protect.”65 The APA
provides a cause of action to persons who are “adversely affected or aggrieved by agency
action within the meaning of a relevant statute.” 66 In the APA context, the Supreme Court
has held that the test is “not especially demanding” and “forecloses suit only when a
plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit
in the statute that it cannot reasonably be assumed that Congress authorized that plaintiff
to sue.” 67
The State correctly observes that Castle Mountain’s right to sue must be measured
against the statutory purposes specific to the termination provision in SMCRA—30 U.S.C.
§ 1256(c). 68 The State maintains that the purpose of that termination provision is to
“prevent squatting on mining permits,” and that it “vindicates purely economic interests.”69
64
Lexmark Intern., Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1387–88 (2014)
(quoting Allen v. Wright, 468 U.S. 737, 751 (1984)) (the zone-of-interests test does not belong in
the “prudential” standing rubric but rather “asks whether this particular class of persons has a right
to sue under this substantive statute”) (quotation marks, formatting, and citation omitted).
65
Docket 62 at 12. See also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990) (plaintiffs’
aggrievements or adverse effects must fall “within the ‘zone of interests’ sought to be protected
by the statutory provision whose violation forms the legal basis for his complaint”).
66
5 U.S.C. § 702.
67
Lexmark, 468 U.S. at 1389 (quotation marks and citations omitted).
68
Docket 62 at 8; see, e.g., Bennett v. Spear, 520 U.S. 154, 175–76 (1997) (“Whether a plaintiff’s
interest is arguably protected by the statute within the meaning of the zone-of-interests test is to
be determined not by reference to the overall purpose of the Act in question . . . but by reference
to the particular provisions of law upon which the plaintiff relies.”) (quotation marks and formatting
omitted); see also Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172, 1179 (9th Cir. 2000).
69
Docket 62 at 11–12.
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In the State’s view, the interests expressed in Plaintiffs’ declarations “describe the harms
associated with commencement of mining at Wishbone Hill, not the harms associated
with a failure to commence mining operations at Wishbone Hill.” 70 The State asserts that
“[e]nvironmental protection is simply not the purpose of the termination provision.” Thus,
the State maintains that Castle Mountain’s purported interests fall outside the zone of
interests protected by the termination provision, such that Plaintiffs have no right to
challenge the agency’s interpretation of the termination statute under the APA. 71
Castle Mountain responds that its interests are well within the zone of interests
protected by the termination provision, which it asserts has dual goals: “ensuring
development of coal resources and ensuring that permits and reclamation plans do not
become outdated.” 72 Plaintiffs observe that OSM’s own regulations “deem[] operating
without a ‘valid’ permit to ‘constitute a condition or practice which causes or can
reasonably be expected to cause significant imminent environmental harm.’” 73 Thus,
Castle Mountain maintains that “[t]he delay caused the permits to terminate, and the
resultant unpermitted mining strongly implicates [Plaintiffs’] environmental, recreational,
health, cultural, property, and public participation interests.”74
The Court finds that Castle Mountain’s asserted interests readily fall within the
70
Docket 62 at 10. See also Dockets 38–49 (Declarations).
71
Docket 62 at 13. The State also asserts that Castle Mountain has other avenues under the
federal and state programs to seek redress. See Docket 62 at 14.
72
Docket 65 at 13.
73
Id. (citing 30 C.F.R. § 843.11(a)(2)).
74
Docket 65 at 14.
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zone of interests protected by the termination provision, as that provision does not relate
only to the economic attributes of mining. And Castle Mountain has shown it is adversely
affected by the agency’s interpretation of the termination provision.
In light of the
foregoing, Castle Mountain has both Article III standing and the right to sue OSM over its
interpretation of SMCRA’s termination provision under the APA.
IV.
THE SMCRA TERMINATION PROVISION
The APA directs courts to “hold unlawful and set aside” an agency decision that is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 75
Here, the question is whether the agency’s interpretation of the termination statute is “not
in accordance with law.” 76
In reviewing an agency’s interpretation of a statute, a court’s first task is to
“determine whether ‘Congress has directly spoken to the precise question at issue. If the
intent of Congress is clear, that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed intent of Congress.’” 77
The statute at issue is 30 U.S.C. § 1256(c), which again provides that:
[A 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: Provided, That the regulatory authority
75
5 U.S.C. § 706(2)(A).
76
Although framed as cross-motions for summary judgment pursuant to Alaska Local Rule 16.3,
in an APA case, “summary judgment merely serves as the mechanism for deciding, as a matter
of law, whether the agency action is supported by the administrative record and otherwise
consistent with the APA standard of review.” Oceana, Inc. v. Pritzker, 24 F. Supp. 3d 49, 60
(D.D.C. 2014) (citation omitted).
77
Ariz. v. Tohono O’odham Nation, 818 F.3d 549, 556 (9th Cir. 2016) (quoting Chevron, U.S.A.,
Inc. v. Nat. Res. Defense Council, Inc., 467 U.S. 837, 842–43 (1984)).
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may grant reasonable extensions of time upon a showing that such
extensions are necessary by reason of litigation precluding such
commencement or threatening substantial economic loss to the permittee,
or by reason of conditions beyond the control and without the fault or
negligence of the permittee . . . .
OSM upheld Alaska’s interpretation of the provision “to mean that if mining
operations do not commence within three years, and no extension is granted, the permit
will not terminate automatically; rather, the permit remains valid until the regulatory
authority takes an affirmative action to terminate it.” 78 All Defendants support OSM’s
interpretation. Plaintiffs argue that OSM’s interpretation is not in accordance with law
because the phrase “shall terminate” is not ambiguous. Rather, Plaintiffs maintain that it
unambiguously mandates permit termination when mining operations do not begin within
three years of a permit’s issuance and no explicit extension has been granted.
Accordingly, the Court must first determine if the disputed phrase “shall terminate”
is ambiguous. “A statute is ambiguous if it is susceptible to more than one reasonable
interpretation. The starting point is the statutory text. . . . When a statute does not define
a term, we generally interpret that term by employing the ordinary, contemporary, and
common meaning of the words that Congress used.”79 Here, the statute does not define
the terms “shall” and “terminate.” SMCRA was passed in 1977. In 1976, Webster’s Third
New International Dictionary explained that “shall” is “used in laws, regulations, or
78
A.R. 22 (Docket 26-3 at 18).
79
Tohono O’odham Nation, 818 F.3d at 556 (quotation marks omitted) (first quoting Alaska
Wilderness League v. EPA, 727 F.3d 934, 938 (9th Cir. 2013), then quoting Chevron, 467 U.S. at
842–43, and then quoting United States v. Gallegos, 613 F.3d 1211, 1214 (9th Cir.2010)).
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directives to express what is mandatory,” and defined “terminate” to mean “to bring to an
ending or cessation in time, sequence, or continuity: CLOSE.” 80 Thus, 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.
Consistent with the ordinary meaning of the term “shall,” the Supreme Court has
repeatedly recognized that when Congress uses the word “shall,” it is mandatory, and
does not give an agency authority to disregard that directive.
For example, in
Kingdomware Technologies, Inc. v. United States, the Supreme Court held that “[u]nlike
the word ‘may,’ which implies discretion, the word ‘shall’ usually connotes a
requirement.” 81 The Supreme Court has also observed that “the mandatory ‘shall’ . . .
normally creates an obligation impervious to judicial discretion.” 82
80
W EBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2085, 2359 (1976). The Supreme Court
frequently cites various editions of this dictionary. See, e.g., Voisine v. United States, --- S. Ct. ---, No. 14-10154, 2016 WL 3461559, at *5 (U.S. June 27, 2016) (citing the 1954 edition);
McDonnell v. United States, --- S. Ct. ----, No. 15-474, 2016 WL 3461561, at *13 (U.S. June 27,
2016) (citing the 1961 edition); Kellogg Brown & Root Servs., Inc. v. United States, ex rel. Carter,
135 S. Ct. 1970, 1976 (2015) (citing the 1976 edition).
81
136 S. Ct. 1969, 1977 (2016); see also Ross v. Blake, 136 S. Ct. 1850, 1856–57 (2016) (where
the PLRA provides that “[a]n inmate ‘shall’ bring ‘no action’ . . . absent exhaustion of available
administrative remedies . . . [t]here is no question that exhaustion is mandatory”); Nat’l Ass’n of
Home Builders v. Defenders of Wildlife, 551 U.S. 644, 661–62 (2007) (the statutory phrase “shall
approve” means “EPA does not have the discretion to deny a transfer of an application); Lopez v.
Davis, 531 U.S. 230, 241 (2001) (noting Congress’ “use of a mandatory ‘shall’ . . . to impose
discretionless obligations”).
82
Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998).
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Highly persuasive to this Court on the issue of any ambiguity in SMCRA’s
termination provision is the Ninth Circuit decision of Grand Canyon Trust v. Tucson
Electric Power Co. 83 Grand Canyon Trust involved a termination provision in a Clean Air
Act regulation that is structurally quite similar to the termination provision in SMCRA, as
it contained both a mandatory termination provision and a permissive extension option.
The regulation provided:
Approval to construct [a power plant] shall become invalid if construction is
not commenced within 18 months after the receipt of such approval, if
construction is discontinued for a period of 18 months or more, or if
construction is not completed within a reasonable time. The Administrator
may extend the 18–month time period upon a satisfactory showing that an
extension is justified. 84
In December 1977, Tucson Electric received a permit to construct two power plant
units. The construction of the units was completed in 1985 and 1990. Many years later,
in 2001, Grand Canyon Trust brought a citizen enforcement action against Tucson
Electric asserting that Tucson Electric had failed to comply with the regulation because it
had not commenced construction by the cut-off date, had discontinued construction for
longer than eighteen months, and had not completed construction within a reasonable
time. 85
83
391 F.3d 979 (9th Cir. 2004).
84
Grand Canyon Trust, 391 F.3d at 983.
85
Subsequent amendments to the Clean Air Act imposed stricter technology requirements on
newly-constructed power plants that had not commenced construction by March 19, 1979. These
requirements were important in Grand Canyon Trust because Grand Canyon Trust sought to
impose those requirements on the already-constructed power plants, which could have cost
Tucson Electric up to $300 million, and civil penalties for operating without the updated technology
of up to $27,500 per day. The issue is not particularly relevant to the statutory interpretation at
issue in this case. However, with regard to Defendants’ focus on forfeiture, it bears noting that in
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The Ninth Circuit agreed with Grand Canyon Trust, and held that a “natural
reading” of the phrase “shall become invalid” provided for automatic permit invalidation,
even though the term “automatic” was not in the statute itself:
[W]e read this language to provide that a permit automatically becomes
invalid in the enumerated circumstances unless the administrator exercises
discretionary authority to extend the permit. On a natural reading of the
language, administrative action is only required to forestall invalidation of a
permit. No agency action is required to invalidate a permit if construction is
not timely commenced. 86
Like the regulation at issue in Grand Canyon Trust, the Court finds that “on a natural
reading” of the SMCRA termination provision, the phrase “shall terminate” is selfexecuting, and “administrative action is only required to forestall invalidation of a permit.”
Defendants argue that the statute is ambiguous because it does not include the word
“automatically” in reference to termination. 87 But like the regulation at issue in Grand
Canyon Trust, a natural reading of 30 U.S.C. § 1256(c) compels a conclusion that use of
the term “automatic” is not required to effectuate the termination by operation of law of a
permit in these circumstances.
Textually, the statute as written is self-executing—it does not require the regulatory
authority to take any action. If Congress had intended that the regulatory authority must
or could take action to terminate the permit in the event that mining activities had not
Grand Canyon Trust, the Ninth Circuit held that “neither the requirement that Tucson Electric
replace its emission-control equipment, nor the potential for civil fines, establishes the type of
expectations-based prejudice that laches requires.” Id. at 988.
86
Grand Canyon Trust, 391 F.3d at 983–84.
87
See Docket 59 at 25.
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commenced, then the termination provision should have read: The regulatory authority
shall (or may) terminate a permit. Other portions of SMCRA do expressly direct the
agency to affirmatively take certain actions.
For example, § 1260(a) provides “the
regulatory authority shall grant, require modification of, or deny the application for a permit
in a reasonable time set by the regulatory authority . . . . [T]he regulatory authority shall
notify the local governmental officials . . . that a permit has been issued . . . .”;
§ 1271(a)(2) provides “the Secretary or his authorized representative shall immediately
order a cessation of surface coal mining and reclamation operations” when, on the basis
of federal inspection, OSM determines the permittee is in violation of SMCRA; and
§ 1271(a)(4) provides “the Secretary or his authorized representative shall forthwith issue
an order to the permittee to show cause . . . .” In contrast, that the termination statute
does not mandate any action by the agency makes clear that Congress intended permit
termination to be self-executing.
The Federal Defendants acknowledge that the term “shall” is generally mandatory,
but observe that it is not always the case. They cite to the Supreme Court’s decision in
Gutierrez de Martinez v. Lamagno, a Westfall Act case in which the Court held that the
use of the phrase “shall be deemed an action against the United States” when the United
States was substituted as a party did not preclude subsequent judicial review of the
agency’s scope-of-employment certification that effectuated the substitution. 88
In
Gutierrez, the Supreme Court observed in a footnote that “[t]hough ‘shall’ generally
88
515 U.S. 417 (1995).
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means ‘must,’ legal writers sometimes use, or misuse, ‘shall’ to mean ‘should,’ ‘will,’ or
even ‘may”. 89 The Supreme Court held that judicial review of the certification decision
was permitted, despite the finality of the language “shall be deemed,” because to construe
the Westfall Act otherwise “would oblige [the Court] to attribute to Congress two highly
anomalous commands[:] . . . that Congress, by its silence, authorized the Attorney
General’s delegate to make [certification determinations without any judicial check[,] [and
that Congress] cast Article III judges in the role of petty functionaries . . . stripped of
capacity to evaluate independently whether the executive’s decision is correct.” 90 Here,
there are none of the separation-of-powers issues that informed the Supreme Court’s
construction of the Westfall Act in Gutierrez.
The Federal Defendants place considerable emphasis on Sierra Club v. Jackson, 91
which concerned whether the administrator of the Environmental Protection Agency had
89
The footnote in Gutierrez continued:
See D. MELLINKOFF, MELLINKOFF’S DICTIONARY OF AMERICAN LEGAL USAGE 402–03
(1992) (“shall” and “may” are “frequently treated as synonyms” and their meaning
depends on context); B. GARNER, DICTIONARY OF MODERN LEGAL USAGE 939 (2d
ed. 1995) (“[C]ourts in virtually every English-speaking jurisdiction have held—by
necessity—that shall means may in some contexts, and vice versa.”) For example,
certain of the Federal Rules use the word “shall” to authorize, but not to require,
judicial action. See, e.g., Fed.Rule Civ.Proc. 16(e) (“The order following a final
pretrial conference shall be modified only to prevent manifest injustice.”) (emphasis
added); Fed.Rule Crim.Proc. 11(b) (A nolo contendere plea “shall be accepted by
the court only after due consideration of the views of the parties and the interest of
the public in the effective administration of justice.”) (emphasis added).
Gutierrez, 515 U.S. at 433 n.9.
90
Id. at 426.
91
648 F.3d 848 (D.C. Cir. 2011).
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a mandatory duty to take enforcement action under a provision of the Clean Air Act that
provides in relevant part:
The Administrator shall, and a State may, take such measures, including
issuance of an order, or seeking injunctive relief, as necessary to prevent
the construction or modification of a major emitting facility . . . . 92
The Sierra Club argued that the plain text of the statute made enforcement by the
Administrator mandatory. The D.C. Circuit Court noted that “[t]he Sierra Club’s textual
argument carries considerable weight. As we have repeatedly noted, ‘shall’ is usually
interpreted as the language of command.” 93
However, the Circuit Court ultimately
disagreed with the Sierra Club because although the statute directed the Administrator to
act, it only required that the Administrator take such measures “as necessary” and
provided “no guidance . . . as to what action is ‘necessary.’” 94 The Court does not find
Sierra Club to be helpful in resolving whether the SMCRA statute is not ambiguous,
because the disputed statutory language in this case does not contain the lack of
specificity that was present in Sierra Club. And textually, the language of SMCRA’s
termination provision is quite different because it does not command the agency to do
anything at all.
Further support for finding that SMCRA’s termination statute unambiguously
results in permit termination by operation of law when mining operations have not
commenced derives from the context in which the language appears. For while the
92
42 U.S.C. § 7477.
93
Sierra Club, 648 F.3d at 856 (quotation marks and citations omitted).
94
Id.
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statute clearly directs that a permit shall terminate, it also provides that the agency “may
grant reasonable extensions.” If the statute were read permissively to allow but not
require permit termination if operations had not commenced, regardless of the reason for
the delay in commencing operations, then effectively the two limited exceptions to the
permit termination would have no purpose in the statute. And yet, “[i]f possible, every
word and every provision is to be given effect . . . . None should be ignored. None should
needlessly be given an interpretation that causes it to . . . have no consequence.”95 To
comply with this interpretive canon, the words “shall” and “may” should be accorded
different meanings in SMCRA’s termination provision.
The Supreme Court has observed that “[w]hen a statute distinguishes between
‘may’ and ‘shall,’ it is generally clear that ‘shall’ imposes a mandatory duty.” 96 The import
of the use of both words in a statute was discussed in Center for Biological Diversity v.
United States Fish & Wildlife Service. 97 In that case, the Ninth Circuit upheld the United
States Fish and Wildlife Service’s decision to not complete a formal designation of critical
habitat for an endangered fish species. The disputed language in the Endangered
95
ANTONIN SCALIA & BRYAN A. GARNER, READING LAW : THE INTERPRETATION OF LEGAL TEXTS 174
(2012).
96
Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1977 (2016). In Kingdomware,
the Supreme Court held that a statute was unambiguously mandatory because it “requires that ‘a
contracting officer of the Department shall award contracts’ to veteran-owned small businesses
using restricted competition whenever the Rule of Two is satisfied, ‘[e]xcept as provided in
subsections (b) and (c).’ (Emphasis added.) Subsections (b) and (c) provide, in turn, that the
Department ‘may’ use noncompetitive procedures and sole-source contracts for lower value
acquisitions. . . . Congress’ use of the word ‘shall’ demonstrates that § 8127(d) mandates the use
of the Rule of Two in all contracting before using competitive procedures.”
97
450 F.3d 930, 935 (9th Cir. 2006).
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Species Act (ESA) used both the terms “shall” and “may.” The Circuit Court held that
“[w]hen ‘may’ and ‘shall’ are both used in a statute, ‘the normal inference is that each is
being used in its ordinary sense—the one being permissive, the other mandatory.’” 98 Put
another way, the Circuit Court found that Congress knew the difference between “may”
and “shall” when it used them together in that provision of the ESA.
The Federal Defendants maintain that even when “shall” and “may” appear
together, their meaning depends on context. 99 In the disputed statute here, they assert
that “[t]here is no direction, in the exception proviso, that the extension come at a
particular time, either before or after three years has run.” 100 To the Federal Defendants,
because the statute accords the agency the discretion to grant reasonable extensions at
any time, “[t]he only statutory command is that once the regulatory authority determines
that a permit extension is ‘necessary’ to prevent inequity, the extension must be
‘reasonable’—a word that clearly envisions a range of permissible outcomes.”101 But this
argument overlooks that fact that extensions can be granted under the statute for only
two specific reasons.
Thus, unlike the statute in Sierra Club that directed the
administrator to take unspecified measures “as necessary,” SMCRA provides only two
specific bases on which the regulatory authority can grant permit extensions. 102
98
Id. (quoting Haynes v. United States, 891 F.2d 235, 239–40 (9th Cir. 1989).
99
Docket 59 at 27.
100
Docket 59 at 29.
101
Docket 59 at 29.
102
See supra notes 91–94 and accompanying text.
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The Federal Defendants also cite to Citizens Association for Sound Energy v.
United States Nuclear Regulatory Commission. 103 In that case, the United States Court
of Appeals for the District of Columbia Circuit found permissible the Nuclear Regulatory
Commission’s (NRC’s) statutory interpretation that automatic forfeiture did not result
when an operator failed to meet the deadline to file for a permit extension under the
Atomic Energy Act. The statute at issue in that case, 42 U.S.C. § 2235, provided:
The construction permit shall state the earliest and latest dates for the
completion of the construction or modification. Unless the construction or
modification of the facility is completed by the completion date, the
construction permit shall expire, and all rights thereunder be forfeited,
unless upon good cause shown, the Commission extends the completion
date. 104
The operator applied for an extension approximately six months after the permit expiration
date, which the NRC issued. Citizens Association for Sound Energy challenged the
agency action, arguing in part that the operator’s failure to apply for an extension prior to
the permit’s expiration caused “a complete forfeiture of the permit, such as to preclude
the issuance of an extension.” 105 The D.C. Circuit Court disagreed, holding that “[t]he
plain language of [§ 2235] permits the Commission to extend a completion date for ‘good
cause.’ There is no language specifying that the expiration of the construction permit
automatically effects forfeiture of the permit, or that the Commission is then barred from
103
821 F.2d 725 (D.C. Cir. 1987).
104
Citizens Ass’n for Sound Energy, 821 F.2d at 730.
105
Id.
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an application to extend the latest construction date.”106 The Federal Defendants assert
the case supports a finding that the statute at issue here is not unambiguous and that
OSM’s interpretation of the termination provision in SMCRA is reasonable. 107
Citizens Association did not require the D.C. Circuit to analyze the plain meaning
of the phrase “shall expire” as used in the statute at issue. Rather, the Circuit Court
focused on the broad “good cause” exception to permit expiration. And that statute
contained only the term ‘shall’ and not the SMCRA provision’s combination of “shall” and
“may.” Most importantly, the case did not address the automatic termination of a permit
when no extension had been sought or granted at all—either before or after the permit
expiration date—as is the case here. In short, the Court does not find that the D.C.
Circuit’s analysis in Citizens Association demonstrates that the termination provision at
issue here is ambiguous.
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. Moreover, because SMCRA sets the floor to
which state programs must comply, Alaska’s statute must be in accordance with the
106
Id.
107
Docket 59 at 32. The State of Alaska and Usibelli do not directly address the ambiguity
question, although the State joins the Federal Defendants’ brief on the meaning of “shall.” See
Docket 62 at 27. Usibelli adds that if “shall” in SMCRA “demonstrates Congressional intent to
require automatic termination . . . the fact that the Alaska statute . . . does not use the word ‘shall’
should support the construction that under Alaska law, there is no automatic termination.” See
Docket 61 at 18. However, since the federal law sets the floor to which primacy states must
comply, Alaska cannot adopt a statute that is less stringent than SMCRA. See supra notes 8–11
and accompanying text.
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termination provision of § 1256(c). Based on the foregoing analysis, the Court finds that
SMCRA’s termination provision is not ambiguous. Rather, Congress has directly spoken
to the precise question and has provided that a surface coal mining permit terminates by
operation of law when mining operations have not commenced within three years unless
the agency has affirmatively granted an extension for one of the two specified reasons
allowed in the statute. OSM’s contrary interpretation regarding the Wishbone Hill permits
is not in accordance with law, and must be set aside, for the Court, as well as OSM and
the State of Alaska, must give effect to the unambiguously expressed intent of
Congress. 108
A review of SMCRA’s legislative history on this provision does not warrant a
contrary result. The parties cite to portions of SMCRA’s or ASCMCRA’s legislative history
as supporting their positions. 109 On balance, the Court finds that the legislative history
cited by the parties does not squarely address the issue before the Court, and is, in any
event, unnecessary to parse when the statute itself is unambiguous. 110
108
Chevron, U.S.A., Inc. v. Nat. Res. Defense Council, Inc., 467 U.S. 837, 842–43 (1984).
109
Docket 37 (Castle Mountain Mot.) at 29–32; Docket 65 (Castle Mountain Reply) at 23; Docket
60 (Fed. Defendants’ Opp.) at 34–38; Docket 62 (State of Alaska Opp.) at 25; Docket 61 (Usibelli
Opp.) at 17; see also Docket 33-1 (Alaska DNR Commissioner Decision) at 2–4 and 8–11.
110
The State of Alaska asserts that Alaska’s legislative history is the relevant authority and that
the DNR Commissioner determined that “where possible, the state legislation sought to reduce
some of the burdens imposed by the federal legislation and implement a program more tailored
to the needs of Alaskans.” The State asserts that “[a]utomatic termination is inconsistent with this
legislative purpose.” Docket 62 at 25. The Court finds this assertion contrary to the law. Alaska
coal mining regulations may not “reduce” the burden of SMCRA. Rather, as already stated,
Alaska regulations must be “in accordance” with SMCRA or they may be “more stringent.”
Therefore, Alaska’s termination provision must also mean that permits terminate automatically
unless a valid extension is granted. See supra notes 8–11 and accompanying text.
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The parties have also discussed how the law of forfeiture should affect the
outcome in this case. OSM’s decision referenced several older forfeiture cases, and
reasoned that because SMCRA “does not give ‘clear and unequivocal’ warning that
automatic termination of the permit could result from missing the three-year deadline,” it
is preferable to interpret the Act to not require permit termination. 111
The Federal
Defendants add to this line of reasoning by citing to various statutes and regulations that
they assert provide a clear lesson: “when Congress (or an agency) chooses to make
termination of a license, lease, or permit automatic, it does so explicitly, giving full notice
to licensees to be on their guard against forfeiture of their vested rights. The failure to do
so in [the termination provision] indicates, quite simply, that that is not the outcome that
Congress intended.”112 In effect, the Federal Defendants argue that the phrase “shall
terminate” is not sufficiently clear to apprise a permit holder that the permit shall terminate
if mining operations are not commenced within the requisite three years or extended
period.
But, as explained above, this Court disagrees, and finds the phrase “shall
terminate” to be free from ambiguity as to the consequence of a failure to commence
mining operations when no exception applies.
111
Docket 26-3 at 2–4; see also United States v. Model Ford V-8 De Luxe Coach, Motor No. 183306511, 307 U.S. 219, 226 (1939) (citing Farmers’ & Mechanics’ Nat’l Bank v. Dearing, 91 U.S.
29, 33–35 (1875)); Am. Maritime Ass’n v. Blumenthal, 590 F.2d 1156, 1165 (D.C. Cir. 1978).
112
Docket 60 at 34. Usibelli and Alaska both maintain forfeiture arguments under Alaska law.
See Docket 61 at 16–17; Docket 62 at 28. But, as the Court has made clear, Alaska law does not
provide the rules of decision in this case.
Case No. 3:15-cv-00043-SLG, Castle Mountain Coalition, et al. v. Office of Surface Mining
Reclamation and Enforcement, et al.
Order re Cross-Motions for Summary Judgment
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Moreover, unlike the cases cited by the Federal Defendants, the loss of a surface
coal mining permit for failing to commence operations is not a penalty for violating a
federal law. Rather, it is a statutory condition of the permit itself: Usibelli received the
permits and subsequent renewals subject to “[a]ll conditions and stipulations of the
original permits” that by their own terms did not “relieve the permittee of the responsibility
for compliance with any federal, state or local law or regulation.” 113
This would
encompass the termination and extension provisions. The Federal Defendants refer to
the permits as giving licensees “vested rights.” 114 But no party has cited to any case that
found vested rights that continue beyond a permit’s termination. Rather, Castle Mountain
has cited cases that hold precisely the opposite. 115 The fact that other statutes and
regulations, cited by Defendants, use different language than SMCRA to effect a
termination does not render SMCRA’s language non self-executing. Moreover, when the
termination provision is properly enforced, it is not clear that a significant forfeiture would
even occur.
For if properly enforced, a permit would terminate before any mining
operations had commenced, thereby minimizing any economic losses. And Plaintiffs
concede that “the statute places no express time limits on when an extension may be
113
See Docket 28-7 (Permit Transfer) at 1–2; Docket 28-4 at 12–22 (2002 Permit Renewal);
Docket 28-1 at 4–6 (2006 Permit Renewal).
114
Docket 60 at 34.
115
Bd. of Regents v. Roth, 408 U.S. 564, 578 (1972) (assistant professor’s property interest in
continued employment extended only to the end date of his contract); Kraft v. Jacka, 872 F.2d
862, 867–68 (9th Cir. 1989), abrogated on other grounds by Dennis v. Higgins, 498 U.S. 439
(1991) (no protected property interest continued after the automatic expiration of limited gaming
licenses).
Case No. 3:15-cv-00043-SLG, Castle Mountain Coalition, et al. v. Office of Surface Mining
Reclamation and Enforcement, et al.
Order re Cross-Motions for Summary Judgment
Page 33 of 35
granted.” 116 Accordingly, it may be that under SMCRA the regulatory authority can extend
the time to commence mining even after a permit has terminated, provided the statutory
grounds for extension have been met. This Court need not determine that issue in this
proceeding. In sum, because the termination provision in SMCRA is unambiguous,
OSM’s and Defendants’ assertions regarding forfeiture law are inapposite.
CONCLUSION
In light of the foregoing, the Court finds that the phrase “shall terminate” as set
forth in section 1256(c) of the Surface Mining Control and Reclamation Act 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. 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
116
Docket 65 at 20.
Case No. 3:15-cv-00043-SLG, Castle Mountain Coalition, et al. v. Office of Surface Mining
Reclamation and Enforcement, et al.
Order re Cross-Motions for Summary Judgment
Page 34 of 35
matter is REMANDED to the agency for further proceedings consistent with this decision.
The Clerk of Court is directed to enter judgment for Plaintiffs accordingly.
DATED this 7th day of July, 2016 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
Case No. 3:15-cv-00043-SLG, Castle Mountain Coalition, et al. v. Office of Surface Mining
Reclamation and Enforcement, et al.
Order re Cross-Motions for Summary Judgment
Page 35 of 35
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