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

Pebble Partnership copper gold molybdenum mine project Alaska Northern Dynasty NAK NDM

By Shane Lasley
Mining News 

Suit worries natural resources industry

Trustees for Alaska sues state, claiming DNR and the Legislature created a scheme to skirt public comment of water use permits


Last updated 8/30/2009 at Noon

Alaska's resource development community is responding en masse to a civil suit filed by environmental law firm Trustees for Alaska that contends permits issued by the Alaska Department of Natural Resources for exploration of the Pebble deposit in Southwest Alaska violate the Alaska Constitution.

The lawsuit - filed July 29 in Alaska Superior Court in Anchorage on behalf of Nunamta Aulukestai, Jack Hobson, and former Alaska First Lady Bella Hammond, among others - claims the land and water use permits issued to Pebble's developers by DNR are unconstitutional due to a lack of public notice and analysis of whether the permits are in the public's interest.

Leaders from Alaska's resource development community are concerned that if the environmental law firm is successful in its bid to halt exploration at the massive Pebble copper-gold-molybdenum deposit, the repercussions would be felt across all sectors of the state.

"This is a big deal. It is not just focused on Pebble. When you are throwing in temporary water use permits, you are talking fish processing, the Alaska natural gas pipeline, mining projects and tourism operators. These permits are used all around the state," Resources Development Council Executive Director Jason Brune told Mining News. "Any economic opportunity that is going on in the state is stopped."

Implications beyond Pebble

The lawsuit filed by the Trustees for Alaska asserts that Alaska's miscellaneous land use permits and temporary water use permits for hardrock exploration on state lands are unconstitutional, and because these permits issued for the Pebble project are allegedly causing harm to the people of the region, the currently issued permits should be declared void and of no effect.

"In order for the plaintiffs to succeed in getting an injunction, one of the things they have to establish is that their interests have somehow been injured; therefore, the allegations have to be focused on a specific perceived risk," Alaska-based Mining Attorney JP Tangen said. "They know that if they succeed against Pebble, there is a good chance that the rest of the industry will get sucked into the abyss."

The plaintiffs contend that the Alaska Legislature and DNR have created a scheme that allows the regulatory agency to issue temporary water use permits without public notice and public interest.

"DNR has permitted TWUPs (temporary water use permits) statewide and at the Pebble Project under this scheme," Trustees for Alaska wrote. "There is no rational basis for this non-uniform application of public notice and public interest analysis of water use."

The suit requests that the court prevent "DNR from issuing new land use and temporary water use permits for Pebble until a constitutionally valid permitting process is enacted by the Legislature and adopted by DNR."

This is the portion of the suit that could have wide-ranging effects.

According to Alaska Miners Association Executive Director Steve Borell, nearly 500 temporary water use permits and miscellaneous land use permits are issued annually in the state for projects ranging from drilling domestic water wells to building ice roads on Alaska's North Slope.

"A huge bureaucracy would be required. Far, far more people than what they (DNR) have now would be required to do it," Borell said.

Hearings in September

Preliminary hearings on the case are scheduled for Sept. 9 where the State of Alaska will be expected to respond to 161 allegations brought forward by Trustees on behalf of its clients. A decision on the request to place an injunction on the Pebble Partnership's current exploration permits is expected at that time.

A multitude of resource development groups and companies are planning to intervene on behalf of the state. Brune said the Resource Development Council, Alaska Miners Association, Council of Alaska Producers as well as Millrock Resources Inc. and the Pebble Partnership are currently preparing for the hearings. The oil industry and fishing industry are also watching the case closely and may join in defense of state regulators.

In March, Trustees for Alaska filed an administrative appeal in an attempt to reverse DNR's approval of temporary water use permits and miscellaneous land use permits. The law firm cited similar issues (a lack of proper public notice and a failure by DNR to analyze and verify baseline conditions) as reasons for the appeal.


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