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Castle Mountain Coalition v. Office of Surface Mining Reclamation and Enforcement

United States District Court, D. Alaska

July 7, 2016



          Sharon L. Gleason UNITED STATES DISTRICT JUDGE.

         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]

         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 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 non-Indian 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 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 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 five-year 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 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], 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 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 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 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 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.


         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:

[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 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]


         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 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]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 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.


         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 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 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]

         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]

         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 self-executing, 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 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 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 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 ...

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