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Usibelli's Wishbone Hill mine project permit faces further scrutiny

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Usibelli's Wishbone Hill mine project permit faces further scrutiny

A federal judge on July 7 ruled against 's miningoperations at the Wishbone Hill mine, near Sutton, Alaska, and questioned thevalidity of the coal company's 25-year old mining permits.

Plaintiffs said a cessation order or a mandatory terminationof Usibelli's Wishbone Hill mine project for failing to comply with the SurfaceMining Control and Reclamation Act's rulingto commence mining operations within three years following the permits'issuance. Unless an extension is granted, the permit "shall terminate."

Usibelli only took hold of the original permits in 1997. Theproject was originally permitted to Idemitsu Alaska in 1991, which requested anextension from the Department of Natural Resources through September 1996,after failing to commence mining operations within three years of the permitissuance. In 1995, the permits were transferred to North Pacific Mining Corp.and were renewed for a five-year period.

After taking hold of the permits in 1997, Usibelli appliedfor a renewal of the permits for an additional five-year term in 2001 andanother in 2006 to expire in 2011.

"Neither Usibelli's 2001 permit renewal request nor its2006 permit renewal request contained a request for an extension of the time tocommence mining operations," according to the court filing. It added that "coalmining operations at Wishbone Hill did not begin until June 2010, when Usibellistarted building a road from the Glenn Highway to the project site."

DNR acknowledged that its 2002 and 2006 permit renewaldecisions did not "contain a discussion of extensions," but theagency maintained that "by granting a renewal of the permit with fullknowledge of the status of Usibelli's operations, it was implicitly granting anextension when it granted the permit renewals in 2002 and 2006," as statedin the July 7 court filing.

After careful consideration of the arguments presented, thecourt affirmed that the phrase "shall terminate" in SMCRA's ruling is"unambiguous," as stated in the court filing. Further, the courtremanded the U.S. Office of Surface Mining Reclamation and Enforcement'sdetermination that "SMCRA does not require permit termination when surfacecoal mining operations have not commenced within three years of permit issuanceand no valid extension has been granted," to the agency.