ELR Citation: ELR 20276
No(s). S-4047 (Alaska Aug 21, 1992)

The court holds that off-site facilities must be included in a surface coal mining and reclamation operations permit under the Alaska Surface Coal Mining Control and Reclamation Act (ASCMCRA), and the Alaska Department of Natural Resources (DNR) may not ignore the cumulative impact of mining and related support facilities by permitting these off-site facilities separately. The court first holds that the ASCMCRA should be construed to be consistent with the federal Surface Mining Control and Reclamation Act (SMCRA), because Congress and the Alaska Legislature intended that the state program comply with SMCRA. The court then holds that the DNR's decision to refrain from exercising jurisdiction over several off-site facilities lacked a reasonable basis, and that the ASCMCRA definition of "surface coalmining operations" includes the facilities in dispute. The facilities, which include a conveyer, airstrip, access roads, gravel pit, employee housing facilities, solid waste disposal facility, and coal storage facilities, can be characterized only as facilities which result from or are incidental to the mining operation, because 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 court holds that the DNR may issue separate permits for individual mines or for support facilities within a larger mining area. The court, however, remands the permit issues to the DNR for consideration of the cumulative environmental effects of the entire surface coalmining operation, because the policies and purposes of the ASCMCRA cannot be accomplished by ignoring cumulative impacts. The DNR may not ignore the cumulative effects of mining and related support facilities by unreasonably restricting its jurisdiction or by permitting facilities separately. The court further holds that a reclamation bond amount cannot be premised on the assumption that an applicant would have complied with all reclamation requirements on schedule up to the time of any default, but the bond does not necessarily have to equal the total reclamation cost. The DNR should calculate a bond amount assuming forfeiture at a time when unabated permit violations exist, though it need not assume that no reclamation will have taken place. Finally, the court holds that the DNR may not release all or part of a bond absent completion of the wetlands restoration portion of the reclamation plan contained in the permit, irrespective of other specific bond release criteria.

Counsel for Appellants
Michael M. Wenig
Office of U.S. Trustee
645 G St., Ste. 402, Anchorage AK 99501
(907) 278-8012

Counsel for Appellees
Ellen Toll, Ass't Attorney General
Attorney General's Office
1031 W. 4th Ave., Ste. 200, Anchorage AK 99501
(907) 269-5100

Amicus Curiae
Richard M. Johannsen
Perkins Coie
1029 W. Third Ave., Ste. 300, Anchorage AK
(907) 279-8561

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON, and MOORE, JJ.