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

The Chuitna coal project has long been on the kill list for the environmental conflicts Industry. Litigation against the government is among the Enviro-Cons' favorite tools.

For reasons that sometimes defy understanding, the courts view such litigation as somehow being in the public interest; and, accordingly, cut this particular ilk of non-governmental organization far more slack than can be justified by reason. At one point, a generation ago, it made a modicum of good sense for the courts to bend the rules about legislating from the bench because, for instance, the externalization of industrial waste was derogating from the public welfare; however, those days are long past. It is axiomatic that all NGOs are not operating in the public interest.

A recent decision out of Alaska's Superior Court highlights this point. In this case, a couple of Enviro-Cons had filed for three in-stream flow reservations on a creek that just so happens runs across the Chuitna coal deposit. The obvious motive is not to protect fish, but to stall the project.

The allegations included a variety of attacks on the Alaska Department of Natural Resources, based upon the premise that DNR was not doing its job fast enough to suit the plaintiffs. In the real world, the common experience is that neither time nor money makes much difference to the government. It does its job when the resources are available and in a manner ostensibly consistent with its mandate.

In the case of adjudication of in-stream flow reservations applied for by Enviro-Cons, according to the Superior Court, four years was just too long.

Notably, of the five matters resolved by the court's order of Oct. 14, 2013, three were resolved against the plaintiffs. The court reviewed the precedents and concluded that DNR's alleged "failure" to adjudicate one of the plaintiff's in-stream flow applications did not violate the State of Alaska's constitutional protections for prior appropriators of surface and subsurface waters. Nor did it violate the constitutional uniform application clause or the statutory and regulatory provisions governing IFR applications.

Where the court embarked on the slippery slope, however, was when it came to the complaints about whether the state had unlawfully or unreasonably withheld agency action and whether the state's inaction denied plaintiffs due process under the Alaska Constitution.

After parsing the statute gingerly, the court inferred that even though the mandate to DNR to process IFR applications does not specify how rapidly the applications must be processed, there is some sort of a magic point, not defined in law, by which lack of action becomes "inaction" and justifies an order from the court, directing DNR to do something.

Since the Legislature didn't feel moved to impose a timeline, the court perceived it to be its duty to do so.

This is called "legislating from the bench" in some parts of town.

In other quarters, it is called violating the principle of separation of powers.

To its credit, the Superior Court acknowledges that it has no useful guidance from the Alaska Supreme Court to support this analysis, and only the most attenuated support from the federal courts as well.

Nonetheless, it presses on with its task.

Antithetically, the court also recognizes that "[t]he legislature has chosen to fund DNR's Water Use Section at a level where DNR cannot keep up with the applications it receives." The court concludes that [t]he longer DNR waits to place an application on its priority list and begin adjudicating it, the less DNR's need to prioritize becomes.

To do otherwise would be to allow DNR to "prioritize" an application into a black hole of agency inaction.

At some point, "prioritizing" becomes [un]reasonable.

It is the court's job to provide a remedy when that occurs. The court seems blissfully unaware that legislative bodies routinely cut programs off at the pocketbook, whenever that political body becomes disenchanted with a previous legislature's handiwork.

The court also found that the "failure to process Chuitna's applications within a reasonable time violates due process under the Alaska Constitution." The court focuses on the fee one of the plaintiffs had to pay when submitting its applications and concludes that '[h]aving paid the fee,' has clearly suffered prejudice from DNR's lack of action."

At a certain level, of course, the world would be a more perfect place if simply by paying the fee Alaska's bureaucrats could be induced to get off of dead center; but, in a larger sense, stereotypical bureaucratic inaction generally cannot be made to wither at the stroke of a check-writer's pen. What is new and different about this analysis is the conclusion that sloth equates to a denial of due process. By the court telling DNR that it is just not fair for it to be so slow, a whole new and wonderful world is opened to every permit applicant in the state.

The plaintiffs in Chuitna Citizens Coalition v. Alaska, Case Number 3AN-11-12094 CI may have won a partial victory, but in doing so they have inspired a crazy precedent. The good news, I suppose, is that if upheld by the Supreme Court, the queue of people waiting for bureaucratic decisions will be converted into a queue waiting to sue the State for "unconscionable" delays. If four years is clearly unreasonable, is''t two years somewhat unreasonable? What about two months? After all, how long is a piece of string?