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Trustees for AK et al v. Gorsuch & DNR (8/21/92), 835 P 2d 1239
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Notice: This is subject to formal correction
before publication in the Pacific Reporter.
Readers are requested to bring typographical
or other formal errors to the attention of
the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order
that corrections may be made prior to
permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
TRUSTEES FOR ALASKA, ALASKA )
CENTER FOR THE ENVIRONMENT, )
TAMARA SMID and EDWIN TAYLOR, ) Supreme Court File.
) No. S-4047
Appellants, ) Superior Court No.
) 3AN-88-7646 Civil
v. )
)
LENNIE B. GORSUCH, COMMISSIONER, ) O P I N I O N
and ALASKA DEPARTMENT OF NATURAL )
RESOURCES, )
)
Appellees. ) [No. 3879 - August 21, 1992]
)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Karen L. Hunt, Judge.
Appearances: Michael M. Wenig,
Anchorage, for Appellants. Ellen Toll,
Assistant Attorney General, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellees. Richard M. Johannsen, Perkins
Coie, Anchorage, Amicus Curiae of Diamond
Shamrock-Chuitna Coal Joint Venture.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
COMPTON, Justice.
RABINOWITZ, Chief Justice, with whom
MATTHEWS, Justice, joins, dissenting in part.
This appeal challenges several aspects of a decision by
the Commissioner of Natural Resources (commissioner) to
issue a surface coal mining and reclamation operations
permit under the Alaska Surface Coal Mining Control and
Reclamation Act (ASCMCRA), AS 27.21.010-.999. We
affirm the commissioner's decision in part, reverse in
part and remand for further proceedings consistent with
this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Any person who conducts a surface coal mining and
reclamation operation in Alaska must obtain a permit
issued under ASCMCRA. AS 27.21.060(a). In January
1985 Diamond Shamrock-Chuitna Coal Joint Venture
(Diamond) applied for a permit to conduct surface coal
mining on the western side of Cook Inlet. The Alaska
Department of Natural Resources (DNR), Division of
Mining (Division), approved Diamond's application on
March 5 and August 21, 1987, after extensive review,
public comment and revisions.
Trustees for Alaska, Alaska Center for the Environment,
and several individuals who had participated in the
comment and review process (collectively Trustees),
appealed the decision to the commissioner under
AS 27.21.150. After a hearing, the hearing officer
issued a proposed decision rejecting Trustees'
challenges relevant to this appeal. The commissioner
adopted the hearing officer's proposed decision.
Trustees appealed the commissioner's decision to the
superior court. AS 22.10.020(d); Alaska Appellate Rule
602(a)(2). The superior court upheld the
commissioner's decision, except to the extent that the
permit coverage excluded an eleven mile access/haul
road from the mine site to Cook Inlet. On rehearing,
the superior court concluded that the road could be
permitted under a separate ASCMCRA permit. Trustees
appeals the superior court's decision raising the
following contentions:
1. DNR exceeded its discretion by "refusing to
require that the following off-site facilities be
covered under Diamond's permit: port stockpiling and
loading facilities; coal conveyor to the port; gravel
pits; employee housing; access/haul roads; and
airstrip."
2. DNR violated ASCMCRA by approving a bond amount
which "does not reflect the cost of all reclamation
which will need to be performed during the life of the
permit."
3. DNR violated ASCMCRA by issuing a permit when
Diamond failed to prove "that its wetlands
`revegetation' plan will restore prior `uses' of the
land that were supported by wetlands and . . . will
satisfy the applicable performance standards for
hydrology, water quality, and wildlife habitat."
4. DNR's bond release criteria violate ASCMCRA
because they "do not appear to make bond release
contingent on Diamond's successful completion of its
wetlands plan."
II. APPLICABLE LAW
The parties disagree as to whether the federal Surface
Mining Control and Reclamation Act of 1977 (SMCRA), 30
U.S.C. 1201-1328 (1986), and the regulations
promulgated thereunder, are controlling in this case.
SMCRA provides a process whereby a state may assume
control of a program to regulate surface mining and
reclamation operations. 30 U.S.C. 1253 (1986). The
state program must demonstrate, among other things:
that such State has the capability of
carrying out the provisions of this chapter
and meeting its purposes through --
(1) a State law which provides for
the regulation of surface coal mining and
reclamation operations in accordance with the
requirements of this chapter
(7) rules and regulations
consistent with regulations issued by the
Secretary pursuant to this chapter.
30 U.S.C. 1253(a) (1986). Ultimately, the Secretary of
Interior must approve the program. 30 U.S.C. 1353(b)
(1986). States which do not have approved programs are
subject to federally implemented programs. 30 U.S.C.
1254 (1986).
In 1982 the state of Alaska passed ASCMCRA as part of
its effort to assume exclusive jurisdiction of surface
coal mining and reclamation within the state. Ch. 29,
5 1, SLA 1982; AS 27.21.010(a)(5). The legislature
specifically expressed the state's intent "to assume
exclusive jurisdiction over the regulation of surface
coal mining and reclamation operations in the state
under [SMCRA]." AS 27.21.010(a)(5). In enacting
ASCMCRA, the legislature also found that:
Section 503 [30 U.S.C. 1253] of
[SMCRA] provides that a state wishing to
assume exclusive jurisdiction over the
regulation of surface coal mining and
reclamation operations in the state must have
a state law that provides for the regulation
of surface coal mining and reclamation
operations in accordance with the
requirements of [SMCRA].
AS 27.21.010(4) (emphasis added).
In light of this finding and the legislature's express
intent to assume exclusive jurisdiction, we do not
believe the legislature intended the state act to be
inconsistent with the federal act. Moreover, section
505(a) of SMCRA provides that state laws or regulations
which are inconsistent with its provisions are
superseded by the SMCRA provisions. 30 U.S.C.
1255(a) (1986). Accord Russell v. Island Creek Coal
Co., 389 S.E.2d 194, 199 (W. Va. 1989).
It is clear that both the Congress and the Alaska
Legislature intended that the state program comply with
SMCRA. Therefore, ASCMCRA should be construed to be
consistent with SMCRA.1
III. FAILURE TO REQUIRE INCLUSION OF CERTAIN
OFFSITE FACILITIES IN DIAMOND'S PERMIT.
Trustees argues that Diamond's permit should have
covered the eleven mile access/haul road and adjacent
conveyor from the mine site to a port, port facilities,
a solid waste disposal facility, gravel pits, and a
housing facility with an air strip and access road.
Trustees asserts that these facilities fall within the
broad statutory definition of "surface coal mining and
reclamation operation"and therefore require an ASCMCRA
permit. Trustees also argues that DNR's regulations
implementing ASCMCRA plainly require a permit for these
facilities. DNR argues that the determination of which
facilities are "resulting from or incident to"the mine
operation, which must be included in the permit, is
within the special expertise of the commissioner and
that the commissioner's decision was reasonable and
based on policy considerations.
We defer to an agency decision which involves complex
subject matter or fundamental policy considerations
unless the decision is arbitrary, capricious or without
a reasonable basis. Trustees for Alaska v. State,
Dep't of Natural Resources, 795 P.2d 805, 809 (Alaska
1990). "The reasonable basis standard is appropriate
for determining whether the agency decision has been
undertaken `in the manner required by law.' One
indication whether an agency has proceeded in the
manner required by law is compliance with its own
regulations." Jager v. State, 537 P.2d 1100, 1107-08
(Alaska 1975).
Any person who conducts a "surface coal mining and
reclamation operation"must first obtain an ASCMCRA
permit. AS 27.21.060. "`[S]urface coal mining and
reclamation operation' means a surface coal mining
operation and the activities necessary and incidental
to the reclamation of that operation after August 3,
1977. . . ." AS 27.21.998(16). The definition of
"surface coal mining operations"in ASCMCRA is broad,
and includes more than the actual mining activities.
AS 27.21.998(17) provides:
"[S]urface coal mining operations"
means:
(A) an activity
(i) conducted on the surface of
land in connection with a surface coal mine
or, to the extent that the activity affects
the surface of land, conducted in connection
with an underground coal mine;
(ii) the products of which enter
commerce or the operation of which directly
or indirectly affects interstate commerce;
(iii) which may include contour,
strip, auger, mountain top removal, boxcut,
open pit, and area mining; the use of
explosives and blasting; on-site distillation
or retorting, leaching, or other chemical or
physical processing of coal; and loading of
coal for interstate commerce at or near the
mine site;
(iv) other than an activity related
to the extraction of coal incidental to the
extraction of other minerals under which the
coal extracted does not exceed 16 2/3 percent
of the total tonnage of coal and other
minerals removed annually for purposes of
commercial use or sale and other than a coal
exploration activity subject to this chapter;
and
(B) the areas on which an activity
described in (A) of this paragraph occurs or
where the activity disturbs the natural land
surface, including adjacent land, the use of
which is incidental to the activity; and
affected by the construction of new roads or
the improvement or use of existing roads to
gain access to the site of the activity and
for haulage; and excavation, workings,
impoundments, dams, ventilation shafts, entry
ways, refuse banks, dumps, stockpiles,
overburden piles, spoil banks, culm banks,
tailings, holes or depressions, repair areas,
storage areas, processing areas, shipping
areas, and other areas upon which are
situated structures, facilities, or other
property or materials on the surface
resulting from or incidental to the activity.
. . .
AS 27.21.998(17).2
In this case, the Division refused to exercise ASCMCRA
jurisdiction over the disputed facilities, citing
several reasons.3 The Division made no mention in its
decision of state regulations relating to the range of
facilities which require permitting under ASCMCRA.
Instead, it relied on the state statutory language and
federal case law. On review, the commissioner's
hearing officer accepted the Division's decision as a
"reasonable one"in light of the "good policy reasons
which have been articulated by the Division for
terminating its jurisdiction at [the secondary
crusher]." However, in the same decision, the hearing
officer noted that "11 [Alaska Administrative Code
(AAC)] 90.155 provides that a permit is required for
roads and support facilities outside of a mine's permit
area."
We conclude that DNR's decision to refrain from
exercising jurisdiction over the disputed facilities
lacked a reasonable basis. Further, we conclude that
the statutory definition of "surface coal mining
operations" in AS 27.21.998(17) encompasses the
facilities which are disputed in this case. Our
conclusions are supported by the language of the
statute and by regulations promulgated by DNR which
clearly require permitting of many of the disputed
facilities.
The state legislature defined "surface coal mining
operations" to mean, inter alia, "other areas upon
which are situated structures, facilities, or other
property or materials on the surface resulting from or
incidental to the activity." AS 27.21.998(17)(B)
(emphasis added). The disputed facilities, including
the conveyor, airstrip, access roads, gravel pit, solid
waste disposal facility, employee housing facilities,
port and the coal storage facilities, would not be
necessary in the absence of the coal mining operation.
They will be built to support the mining activity, will
be proximate to the mine and will be located in an
otherwise generally undeveloped area. The disputed
facilities can only be characterized as facilities
which result from or are incidental to the mining
operation. The seven reasons DNR gave for declining
jurisdiction simply do not provide a reasonable basis
for a different conclusion.
The lack of a reasonable basis for DNR's determination
is highlighted by DNR's failure to comply with its own
regulations. An agency is bound by the regulations it
promulgates. See 2 Kenneth C. Davis, Administrative
Law Treatise 7:21 at 98 (2d Ed. 1979). An agency has
not acted in the manner required by law if its actions
are not in compliance with its own regulations. Jager,
537 P.2d at 1107-08.
In deciding that the disputed facilities were outside
its jurisdiction, DNR apparently overlooked its own
regulation which provides as follows:
A permit is required for all roads,
transportation, support facilities and
utility installations included in 11 AAC
90.491, whether or not these facilities are
outside the permit area of any particular
mine. These facilities must comply with all
performance standards of this chapter
determined to be applicable by the
commissioner and must comply with the
appropriate bonding provisions of 11 AAC
90.201 -- 11 AAC 90.207. In determining
which requirements of this chapter are
applicable, the commissioner will consider
whether any given facility may be subject to
the requirements of some other governmental
permitting authority.
11 AAC 90.155.
The first sentence of this regulation is clear and
unambiguous: a permit is required for all the offsite
facilities listed in 11 AAC 90.491.
The facilities listed in 11 AAC 90.491 which must be
designed, constructed, used and maintained in a manner
which prevents or minimizes environmental damage
include:
roads, railroad loops, spurs, sidings,
surface conveyor systems, chutes, aerial
tramways, airfields, ports, docks, or other
transportation facilities, mine buildings,
coal loading facilities at or near the
minesite, coal storage facilities, storage
facilities, fan buildings, hoist buildings,
preparation plants, sheds, shops, and other
support facilities . . . .
11 AAC 90.491(a) (emphasis added). Clearly many of the disputed
facilities in this case are explicitly identified in
this list. The facilities not explicitly identified
are fairly encompassed by the phrase "other support
facilities."
As defined by AS 27.21.998(17)(B), "surface coal mining
and reclamation operation" encompasses all of the
disputed facilities, including the conveyor, airstrip,
access roads, gravel pit, solid waste disposal
facility, employee housing facilities, port and the
coal storage facilities. Therefore, these facilities
must be permitted in accordance with ASCMCRA.
IV. INCLUSION OF OFFSITE FACILITIES IN THE
SAME ASCMCRA PERMIT AS THE MINE ITSELF.
Trustees argues that the superior court erred in its
decision on rehearing in concluding that the
access/haul road could be permitted under a separate
ASCMCRA permit. Trustees asserts that the plain
language and logic of ASCMCRA contemplate a single
permit for an entire surface coal mining operation. It
also asserts that allowing separate permits is
inconsistent with the statute's remedial goals because
it will allow DNR to ignore the cumulative or
synergistic impacts of the combined activities.
DNR argues that neither ASCMCRA nor the regulations
directly address whether a separate permit is required.
It contends that 11 AAC 90.155 implies that a separate
permit may be appropriate. DNR claims its
interpretation of the regulation is reasonable and
entitled to deference. DNR also asserts that
cumulative impacts must be considered whether or not
the offsite facilities are separately permitted.
"A permit is required for all roads, transportation,
support facilities and utility installations included
in 11 AAC 90.491, whether or not these facilities are
outside the permit area of any particular mine." 11
AAC 90.155. The implication of this language is that
support facilities may have separate permits from the
individual mines they support. DNR's interpretation of
its own regulations is neither plainly erroneous nor
inconsistent with the regulations. Therefore it should
be given effect unless it is contrary to ASCMCRA. AS
44.62.030.
The portions of ASCMCRA cited by Trustees do not on
their face require that a single permit cover the
entire mine operation and related facilities. Trustees
urges that ASCMCRA precludes DNR's interpretation
because it prohibits a person from conducting a
"surface coal mining and reclamation operation in the
state without a permit for that operation." AS
27.21.060. We find nothing in this statutory language
which requires us to interfere with DNR's
interpretation that ASCMCRA allows separate permits to
be issued for individual mines or for support
facilities within a larger mining area.
However, statutory language does support Trustees'
related argument that DNR may not ignore cumulative
effects of mining and related support facilities by
unreasonably restricting its jurisdiction and
disregarding the effect of activities outside that
jurisdiction.
One of ASCMCRA's purposes is "to prevent the adverse
effects to society and the environment resulting from
unregulated surface coal mining operations."
AS 27.21.010(b)(1). Other express purposes are "to
assure that surface coal mining operations are
conducted in a manner that will prevent unreasonable
degradation of land and water resources,"
AS 27.21.010(b)(3), and "to strike a balance between
protection of the environment and other uses of the
land and the need for coal as an essential source of
energy." AS 27.21.010(b)(7). These purposes cannot be
accomplished by ignoring cumulative impacts.4 Based on
the policies inherent in these purposes, we conclude
that DNR may not ignore cumulative effects of mining
and related support facilities by unreasonably
restricting its jurisdiction or by permitting
facilities separately. These purposes require that at
the time DNR reviews any ASCMCRA permit application it
consider the probable cumulative impact of all
anticipated activities which will be a part of a
"surface coal mining operation,"whether or not the
activities are part of the permit under review. If DNR
determines that the cumulative impact is problematic,
the problems must be resolved before the initial permit
is approved.5
After reviewing the record, we are unable to conclude
that in approving Diamond's permit application, DNR
substantially complied with its obligation to consider
the cumulative environmental effects of the entire
mining operation. DNR had the benefit of the United
States Environmental Protection Agency's (EPA) analysis
of the cumulative impacts of the mine operation,
including the effects of facilities which must be
permitted but were excluded by DNR from the Diamond
permit at issue.6 However, DNR has not directed this
court to portions of its decision in which it
meaningfully considered the effects of the facilities
it erroneously determined were not within its
jurisdiction.7 Because of this lapse, this case must
be remanded to DNR for consideration of the cumulative
environmental effects of the entire "surface coal
mining operation" including the conveyor, airstrip,
access roads, gravel pit, solid waste disposal
facility, employee housing facilities, port and the
coal storage facilities.
V. APPROVAL OF BOND AMOUNTS INADEQUATE TO
COVER THE TOTAL COST OF RECLAMATION.
Trustees argues that DNR erred in calculating the bond
amounts by assuming that Diamond will have complied
with all the reclamation requirements on schedule up
until the time of any default. Trustees contends that
this assumption violates the plain meaning and spirit
of the bonding requirements of AS 27.21.160 and DNR's
regulations on bonding amounts. Trustees asserts that
there is no reasonable basis for assuming that all
ongoing reclamation requirements will be fully complied
with up until forfeiture. Trustees also argues that it
is unreasonable to assume that DNR's enforcement power
will promptly remedy violations.
DNR asserts that bond amounts are left to the
discretion of the commissioner and that they cover the
full cost of reclamation which may be required if the
operation were to shut down at any given point. DNR
points out that Diamond must submit annual status
reports and that DNR can require additional bonding.
Trustees argues that the issue of the adequacy of the
bond required is a legal one. In its view, the
substitution of judgment standard applies. DNR urges
review on the reasonable basis standard because bond
calculations require administrative expertise.
Alaska Statute 27.21.160(a) provides:
The amount of the bond required for an
area within the permit area shall be
determined by the commissioner and shall
reflect the probable difficulty of the
reclamation considering the topography,
geology, hydrology, revegetation potential,
and similar factors relating to the area.
The amount of the bond must be sufficient to
assure the completion of the reclamation plan
by the commissioner in the event of
forfeiture . . . .
AS 27.21.160(a).
Under the statute, the bond calculation involves
technical analysis and the exercise of agency expertise
and is clearly left to the discretion of the
commissioner. We apply a "rational basis"review where
an issue "requires resolution of policy questions which
lie within the agency's area of expertise and are
inseparable from the facts underlying the agency's
decision." Earth Resources Co. of Alaska v. State,
Dep't of Revenue, 665 P.2d 960, 964 (Alaska 1983).
However, Trustees does not challenge DNR's technical
analysis or the factual sufficiency of the bond
calculations. Rather, it asserts that DNR's assumption
that a permittee will have no permit violations at the
time of default is unreasonable and contrary to the
statute.
This challenge does not implicate agency expertise.
"[W]here the knowledge and experience of the agency is
of little guidance to the court or where the case
concerns `statutory interpretation or other analysis of
legal relationships about which the courts have
specialized knowledge and experience,'" we may
substitute our own judgment for that of the agency's.
Id. at 965, quoting Kelly v. Zamarello, 486 P.2d 906,
916 (Alaska 1971).
In its decision, the Division rejected Trustees'
criticism of its assumption that the regrading and
reclamation schedules in the application will be
followed:
To do as the commenter suggests, which
is to determine the bond amount as though no
reclamation at all has taken place during the
permit term, is unreasonable and would result
in the state holding a considerable [sic]
larger bond than would ever be necessary to
reclaim the site. If, as suggested . . . the
applicant were to disregard regrading and
revegetation schedules in the application,
this would constitute a violation of the
permit. [DNR] is required to inspect the
site on a monthly basis, and has the power to
enforce the permit provisions should a
violation occur. Basing the bond amount on
the assumption that the applicant will
violate permit terms is unfair and
unnecessary.
(Emphasis added). DNR adopted the Division's reasoning.
We believe the Division's reasoning and its assumption
are fundamentally flawed. We conclude that ASCMCRA
requires DNR to "base[] the bond amount on the
assumption that the applicant will violate permit
terms."
The purpose of the bond is to insure "faithful
performance of the requirements"of ASCMCRA and "to
assure the completion of the reclamation plan . . . in
the event of forfeiture." AS 21.27.160(a). A
performance bond is drawn upon only where there has
been a failure of performance. The bond would be
unnecessary absent the assumption that a permittee may
not fully perform its obligations. The amount of the
bond is academic absent a failure.
In light of these elementary facts, we believe it
unreasonable and indeed illogical to conclude that
DNR's enforcement efforts will assure a permittee's
full compliance with reclamation obligations until a
forfeiture. DNR's enforcement powers cannot prevent
permit violations. If they could, performance bonds
would not be necessary.
The Division intimated that if reclamation does not
progress as scheduled, adjustments could be made in the
bond amount. But if the operation folds at the point
where DNR discovers reclamation violations, a bond
calculated under the assumption of compliance up to
that point will necessarily be inadequate. The bonds
required by DNR will only be adequate to assure full
reclamation in the event that forfeiture occurs at a
point when no violations exist. We conclude that the
Division's assumption that no violations will exist at
the time of forfeiture is unreasonable.8
DNR should recalculate the bonds so that they are
"sufficient to assure the completion of the reclamation
plan by [DNR] in the event of forfeiture." AS
27.21.160(a). This does not necessarily mean that DNR
must require Diamond to post a bond equal to the total
reclamation cost. DNR should calculate the bond
assuming forfeiture at a time when unabated permit
violations exist, though it need not assume that no
reclamation will have taken place.
VI. APPROVAL OF DIAMOND'S WETLANDS RESTORATION PLAN.
A. Restoration of Ecological Functions
and Revegetation.
Trustees argues that ASCMCRA and SMCRA require
restoration of ecological functions provided by
wetlands and that the revegetation plan approved by DNR
does not satisfy those requirements. Trustees asserts
that: (1) the plan is too vague; (2) restoration sites
will not be chosen to maximize their effectiveness, but
rather they will be based on the regrading; (3) the
plan does not discuss how it will replace ecological
functions or why that may be infeasible or unnecessary;
(4) DNR could not have reasonably determined that the
plan was adequate from a hydrologic standpoint because
DNR did not have a hydrologist review it; (5) DNR did
not consider the adequacy of the plan from a water
quality standpoint; and (6) DNR did not consider
whether the plan is sufficient from the standpoint of
wildlife habitat.
ASCMCRA directs the commissioner to propose regulations
consistent with the environmental performance standards
of SMCRA and directs that all permits issued require
compliance with those environmental performance
standards. AS 27.21.210. Trustees has not pointed to
any evidence that Diamond's application violates the
performance standards, but claim that DNR approved
Diamond's application without sufficient evidence that
it will restore wetlands functions.9
The pre-mining and post-mining use of the area to be
disturbed is fish and wildlife habitat. The Division
accepted the wetlands plan despite concerns that some
of the peat-filled depressions Diamond proposed to
create might be too small to function effectively. The
Division did not require modification because the
restoration plan was a trial program and it would be
reevaluated at the permit midterm review. DNR found
that the reclamation plan with the wetlands restoration
plan was sufficient to restore the disturbed area to a
condition capable of supporting fish and wildlife.
DNR's assessment of the adequacy of the wetlands
restoration plan is necessarily speculative and it
involves complex subject matter which is within the
expertise of the agency. Therefore, we will defer to
DNR's decision unless it is arbitrary, capricious, or
without a reasonable basis. Trustees for Alaska, 795
P.2d at 809.
In our view, DNR's acceptance of the plan meets the
reasonable basis standard. The plan describes how
wildlife habitat will be recreated by constructing peat-
filled depressions which will be replanted with various
plant species. In addition, three sediment ponds will
be inoculated with plant and insect life forms, and
seedlings will be planted to provide a vegetation
canopy layer for the benefit of wildlife. In light of
the complexity of the subject matter, we will defer to
DNR's conclusion that these measures will be adequate
to restore wildlife habitat.10
B. DNR's Bond Release Criteria.
Trustees asserts that DNR must require Diamond to
successfully reestablish wetlands as a criterion for
bond release. Trustees argues that "completion of the
reclamation plan"includes wetlands restoration.
In its decision, the Division made the following
comments in response to Trustees' concern that DNR
would not evaluate the success of the wetlands
restoration before releasing the bond:
[DNR] intends to evaluate any bond
release application in terms of the
revegetation success criteria of plant cover,
species diversity and woody plant density (11
AAC 90.451 - 11 AAC 90.457). Largely because
the wetlands areas are small, separate
sampling of the restored wetlands has not
been required. Rather, these would be
considered as an inclusion within the
surrounding vegetation type. Furthermore,
there is no specific authority in [ASCMCRA]
to support establishing additional bond
release criteria to determine whether
wetlands have been reestablished successfully
(i.e., retention of water, utilization by
wildlife, growth of Sphagnum, etc.). For
this reason, and because of the trial nature
of the program, no such demonstration has
been required.
In our view, no reasonable basis exists for the
Division's conclusions. Under ASCMCRA, bond release is
"conditioned on faithful performance of the
requirements of this chapter and the permit. . . . The
amount of the bond must be sufficient to assure the
completion of the reclamation plan by the commissioner
in the event of forfeiture . . . ." AS 27.21.160(a).
This makes it clear that a performance bond must be
conditioned on completion of the reclamation plan
contained in the permit, irrespective of other specific
bond release criteria. The record demonstrates that
wetlands restoration is part of the reclamation plan.
The commissioner may not release all or part of a bond
if part of the permit area covered by the bond is in
violation of the performance standards established by
regulation. AS 27.21.170(d).
AFFIRMED in part, REVERSED in part and REMANDED. The
superior court is directed to remand the permit
application to DNR for consideration of the cumulative
effects of all activities which are part of the
"surface coal mining operation,"for reconsideration of
the amount of the bond and for further proceedings in
accordance with this opinion.
RABINOWITZ, Chief Justice, with whom MATTHEWS, Justice,
joins dissenting in part.
I disagree with part IV of the court's opinion, holding
that DNR's interpretation of its regulations as
allowing separate ASCMCRA permits for different
components of a surface coal mining operation is
neither "plainly erroneous nor inconsistent with the
regulations"or with ASCMCRA.
Alaska Statute 27.21.060 provides in part: "a person
may not conduct a surface coal mining and reclamation
operation in the state without a permit for that
operation."(Emphasis added.) See also SMCRA 506(a),
30 U.S.C.A. 1256(a); 11 AAC 90.002(c). The language
of AS 27.21.060 contemplates that a single permit will
control all components of a "surface coal mining
operation."
The applicable definition of a "surface coal mining
operation" includes the actual mine site and all
facilities and structures, either off-site or on-site,
that are "resulting from or incidental to"the mining.
AS 27.21.998(17). Subsection (A) defines "surface coal
mining operation"in terms of "an activity" conducted
at the actual mine site. AS 27.21.998(17)(A). The
definition of a surface coal mining operation is
further broadened in subsection (B):
(B) the areas on which an activity
described in (A) of this paragraph occurs or
where the activity disturbs the natural land
surface, including adjacent land, the use of
which is incidental to the activity; and
affected by the construction of new roads or
the improvement or use of existing roads to
gain access to the site of the activity and
for haulage; and excavation, workings,
impoundments, dams, ventilation shafts, entry
ways, refuse banks, dumps, stockpiles,
overburden piles, spoil banks, culm banks,
tailings, holes or depressions, repair areas,
storage areas, processing areas, shipping
areas, and other areas upon which are
situated structures, facilities, or other
property or materials on the surface
resulting from or incidental to the
activity[.]
AS 27.21.998(17).
While DNR's assertion that "11 AAC 90.155 . . . infers
that a separate permit is appropriate" for the
access/haul road is a plausible interpretation of that
regulation, I disagree with the court's conclusion that
DNR's interpretation is not "inconsistent with the
regulations." (Majority Op. 12) In my view, DNR's
separate permit interpretation is in direct
contravention with the text of another DNR regulation,
11 AAC 90.002, which is substantially similar to AS
27.21.060(a). 11 AAC 90.002(a) provides in part "no
person may conduct exploration activities or surface
coal mining and reclamation operations without a
permit." (Emphasis added.)
The DNR regulations and DNR's interpretation of those
regulations and ASCMCRA, allowing the issuance of
separate permits for the access/haul road and the
remainder of the mining operation, are contrary to the
express purposes of ASCMCRA. Among the enumerated
purposes of the statute are "to prevent the adverse
effects to society and the environment resulting from
unregulated surface coal mining operations" and "to
assure that surface coal mining operations are
conducted in a manner that will prevent unreasonable
degradation of land and water resources." AS
27.21.010(b)(1) and (3). The court reasons that to
accomplish the purposes of the Act,
at the time DNR reviews any ASCMCRA
permit application it [must] consider the
probable cumulative impact of all anticipated
activities which will be a part of a 'surface
coal mining operation,' whether or not the
activities are part of the permit under
review.
(Majority Op. 14) I do not believe that the court's mandated
"concept approval," in the context of an operation
whose anticipated components will be covered by
separate permits, is an adequate substitute for the
safeguards of the single permit requirement of AS
27.21.060 in light of the goal of assuring that the
agency consider the cumulative or synergistic effects
of a coal mining operation. In contrast to the
anticipated "concept approval"approach adopted by the
court, I believe that the requirement, found in AS
27.21.060, of a single permit will compel the permit
applicant to plan and design the operation and its
various components in more concrete and greater detail.
This should lead to consideration by the permit
applicant and DNR of the operation's cumulative effect
in a more careful and comprehensive manner.
Courts have disallowed segmentation of a proposed
project for the purpose of preparing environmental
impact statements (EISs) to assure that the cumulative
effects of the project are adequately considered under
the National Environmental Policy Act (NEPA). Thomas
v. Peterson, 753 F.2d 754 (9th Cir. 1985); see also
Kleppe v. Sierra Club, 427 U.S. 390, 410-411 (1976);
Save the Yaak Committee v. Block, 840 F.2d 714 (9th
Cir. 1988). In discussing a Forest Service plan to
prepare an EIS for the logging access road and a
separate EIS for each individual timber sale area
afterward, Thomas cautioned that allowing consideration
of cumulative impacts after a portion of the project is
already approved "swings the balance decidedly in favor
of timber sales even if such sales would have been
disfavored had road and sales been considered together
before the road was built." 753 F.2d at 760. While I
recognize that in some instances phased implementation
of a mining operation may require a reopening and
modification of the ASCMCRA permit, the same danger
that Thomas counselled against inheres in the instant
case. Thus, I conclude that AS 27.21.060 assures that
the cumulative and synergistic effects are adequately
addressed by its requirement of a single ASCMCRA permit
for all components of a surface coal mining operation.
_______________________________
1. However, while federal regulations promulgated under
SMCRA may provide helpful guidance, they do not set a
standard against which state law must be measured. In
this context, Alaska law is superseded only where it is
inconsistent with the federal statute. 30 U.S.C.
1255.
2. This definition closely parallels the federal
definition of "surface coal mining operations"found in
section 701 of SMCRA. 30 U.S.C. 1291(28) (1986).
The United States Court of Appeals for the District of
Columbia Circuit has construed SMCRA as conferring
considerable discretion on the regulatory authority in
defining the scope of its own jurisdiction. See
National Wildlife Federation v. Lujan, 928 F.2d 453,
461-63 (D.C. Cir. 1991); National Wildlife Federation
v. Hodel, 839 F.2d 694, 743-45 (D.C. Cir. 1988).
3. These reasons included:
(1) DNR has discretion in determining the extent
of its jurisdiction with respect to offsite
facilities which do not include coal processing;
(2) since coal processing is finished at the
secondary crusher, the coal should be considered
loaded for interstate commerce at that point and
therefore DNR's jurisdiction under ASCMCRA ends;
(3) the hauling from the secondary crusher to the
port will be operated by a separate entity;
(4) ASCMCRA "describe[s] how a mining operation
should be conducted, but provide[s] little
guidance to describe how facilities such as the
port and employee housing should be operated."
(5) DNR does not have the expertise to regulate
the construction of these offsite facilities;
(6) the facilities will require other permits
which will address environmental concerns; and
(7) the location of the road, conveyor, and port
have not yet been determined, therefore they could
not have been included in the present permit.
4. DNR is specifically required to consider cumulative
hydrologic impacts. AS 27.21.180(c)(3).
5. This type of "concept approval"is necessary in order
to avoid a situation where, because of industry
investment and reliance upon a past mining permit
approval, DNR might feel compelled to approve a
subsequent permit for a related but environmentally
unsound support facility. In some cases, this may
require concurrent, as opposed to serial, review of
separate, related permit applications. In other cases,
anticipated problems resulting from cumulative impacts
may require that approval of an initial permit be
conditioned upon satisfactory resolution of the
problems anticipated in subsequent permits.
6. The EPA specifically considered the effects of these
offsite facilities on wildlife, groundwater hydrology,
surface water hydrology, and biology. Further, the EPA
considered the cumulative impacts resulting from the
development of other coal or natural resource projects
in addition to the Diamond project.
7. In an appendix to its March 1987 findings, DNR made a
"cumulative hydrologic impact assessment." However, it
is not clear that the conveyor system or the port were
considered in this assessment. Further, it appears
that DNR was aware of but consciously chose not to
consider the cumulative effects of the port and
conveyor on moose in the area. DNR found as follows:
Through the development of all
facilities associated with the mine operation
(port, conveyor system, and mine site) a
portion of the winter range will be
disrupted, movement corridors may be changed
due to the conveyor, and a section of one
rutting area will be lost. The overall
effect of these habitat disruptions may be
quite different from the impacts associated
with only the loss of part of a rutting area.
. . . Although it is necessary to be aware
of the potential for these types of
cumulative impacts to occur, the authority to
require monitoring and mitigation under the
Surface Mining Program extends only to
impacts directly resulting from operations
under this permit.
8. One of the grounds for forfeiture of a bond is a
willful or unwarranted pattern of violations. 11 AAC
90.617(a).
9. The Division required by stipulation that Diamond
submit a wetlands plan within six months of permit
approval. The Division removed the stipulation when
Diamond submitted the plan.
10. We are not persuaded by Trustees' other objections to
the restoration plan.
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