North of 60 Mining News - The mining newspaper for Alaska and Canada's North

The U.S. Supreme Court has agreed to review a Ninth Circuit Court of Appeals ruling that invalidated tailings permits granted by federal regulators for the Kensington gold mine project in Southeast Alaska.

The appeals court ruled in May 2007 that disposal of waste generated by processing gold ore at Kensington in a nearby lake would violate the Clean Water Act and negated permits issued by the U.S. Forest Service and the U.S. Army Corps of Engineers.

Coeur Alaska Inc., developer of the mine project, appealed the decision to the high court.

The question of where to dispose of tailings from Kensington, which is located about 45 miles northwest of Juneau, has sparked a back and forth controversy between Coeur Alaska and several environmental groups. The case ended up before the Ninth Circuit when the Southeast Alaska Conservation Council and other environmental groups appealed an August 2006 ruling by the U.S. District Court of Alaska in Anchorage that upheld the mine permits.

Comet Beach permitting continues

Coeur Alaska, which has spent more than $230 million and has completed all of the construction for the mine other than a tailings facility, said it will not wait for a Supreme Court ruling, but instead, will continue with permitting an alternative tailings site for the project.

The company worked out a plan, in cooperation with SEACC, for storing the tailings as paste at Comet Beach, a site previously approved for dry-stack tailings.

The only difference between the current plan and the dry-stack is that cement would be added to the tailings. Because the site has been previously approved and changes to the tailings disposal plan are not significant enough to require a full environmental impact statement, regulatory agencies led by the Forest Service have recommended an environmental assessment level of review for the alternate plan.

An EA could allow permitting to be complete by this fall, several months before a review by the Supreme Court is expected, according to Coeur.

Coeur seeks quickest solution

When asked why Coeur is even pursuing a ruling by the Supreme Court when it is already pursuing a permit for an alternative tailings facility, spokesman Tony Ebersole told Mining News, "It is consistent with what we have been trying to do all along. The objective here is to try to get the mine into production. Our goal is to get it going by late next year and either one of these alternatives would allow for that."

SEACC, which opposes the Lower Slate Lake option but gave its blessing to the Comet Beach site, is dismayed that Coeur is continuing with the appeal.

Rob Cadmus, SEACC water quality and mining organizer said, "It is unfortunate that Coeur won't let go of its proposal to use a lake as a waste dump when its paste tailings plan is the best, and fastest, option for getting this mine into production in an environmentally sound way."

State convinces high court to hear case

A very small percentage of cases appealed to the Supreme Court actually make the docket. Of about 1,000 cases presented during the 2007-2008 term, the high court considered only 67 of them, the lowest number in more than 50 years, observers say.

U. S. Rep. Don Young, R-Alaska, applauded the Supreme Court's decision to review the case.

"On average, only 7 percent of certiorari petitions filed are actually heard by the Court; I think it's a great victory for Alaska that the Court saw this as a serious and important case. One of the biggest issues we have with developing our natural resources today is the extreme environmental groups who look for any possible grounds to sue and shut development down. I look forward to the Supreme Court providing an objective review of the erroneous Ninth Circuit decision that has been holding up a critical project to help grow Southeast Alaska's economy," said Young.

The State of Alaska played an instrumental role in convincing the Supreme Court to review the case. State attorneys argued that the importance of the case goes beyond Kensington. If the high court overturns the appeals court ruling, it would set a precedent with important implications for future mines in Alaska and elsewhere.

Gov. Sarah Palin said the Supreme Court's decision should provide direction on how certain federal technology standards that are in addition to state water quality standards, should be applied in determining the location of tailing impoundments for future projects.

"We need the Supreme Court to decide once and for all what the federal rules are for dealing with mine tailings," Palin said. "The federal laws have been interpreted differently by different courts at different times. The resulting uncertainty makes it more difficult for everyone involved in the permitting of mines in Alaska."

Author Bio

Shane Lasley, Publisher

Over his more than 16 years of covering mining and mineral exploration, Shane has become renowned for his ability to report on the sector in a way that is technically sound enough to inform industry insiders while being easy to understand by a wider audience.

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