May 29, 2015
In two unanimous decisions, the Alaska Supreme Court on Friday came down solidly on the side of a group fighting the proposed Pebble mine, backing efforts by two Alaska icons, former first lady Bella Hammond and state constitutional convention delegate Vic Fischer, to give the public a voice in mineral exploration.
In one case overturning a 2011 Superior Court decision,  the Supreme Court ruled that the state Department of Natural Resources violated the Alaska Constitution by allowing deep drilling, dynamite blasting, pumping of stream water and other work that disposed of a public resource without any public notice or finding that it was for the common good.
The second case concerned efforts by the state and Pebble Limited Partnership, the mine developer, to recover almost $1 million in lawyer fees and court costs  from those who brought the case, including Hammond and Fischer.
Now Hammond and Fischer are on the winning side and can seek fees from Pebble and the state, the Supreme Court said.
“It’s a relief to have it all over with,” said Hammond, now 82, on Friday from her homestead across Lake Clark from Port Alsworth, about 20 miles from the Pebble prospect.
“It’s a big win, I think. Sitting here, so close to this mining effort, it just seemed so unfair to be so concerned about your land, the environment and the water issues, and to be ignored.”
'No longer silent'
The underlying lawsuit was brought in July 2009 by a group that now includes 10 Bristol Bay tribal entities, their sister village corporations and four individuals including Hammond and Fischer. Another of the four, Violet Willson, recently died. The tribal group is called Nunamta Aulukestai -- Yup'ik for "caretakers of the land."
“It means our voices are no longer silent. We always felt we were shut out of the process, that there was no process,” said Kim Williams, Dillingham-based executive director of Nunamta Aulukestai. “The state was just giving everything to Pebble and what they wanted to do. No oversight. No analysis. No process.”
“It’s a huge victory for everybody in Alaska,” said Valerie Brown, legal director for Trustees for Alaska, the environmental law firm that handled the suit. The state constitution “provides protections before public resources can be committed.”
The state was disposing of a resource through land and water use permits issued for “intensive mineral exploration on state land,” the justices said.
The state had argued that while the potential mine and mineral deposits were important to the public, the exploration work was not significant enough to trigger public involvement. The permits for helicopter landings, fuel storage, exploratory drilling and water usage could have been revoked, the state argued.
The Supreme Court disagreed, saying “the mineral deposits and potential mine can never be developed without the continuing, extensive exploration authorized by (the permits).”
Trustees for Alaska noted that exploration work resulted in more than 1,200 bore holes, 40,000 helicopter trips, miles of underground wells and disposal of toxic drilling waste into unlined pits. The state must evaluate whether that kind of exploration work is in the public interest, under the ruling.
“The State must know how it should act before it acts,” the ruling said.
Impact on future mines
All of the permits challenged by the tribal group have expired, and the Pebble project has lost its main investor and its momentum. But developers haven’t abandoned their effort to extract gold, copper and molybdenum that could be worth hundreds of billions of dollars. Pebble continues to fight in federal court, where this week it lost a round against the U.S. Environmental Protection Agency .
The proposed open-pit mega-mine is at the headwaters of salmon streams that feed Bristol Bay, home to the biggest wild sockeye runs in the world.
The tribal group said future large-scale mineral exploration, whether by Pebble or other developers, will have to include a role for the public.
State lawyers, the Department of Natural Resources and Gov. Bill Walker were scrambling Friday to evaluate the impacts.
“Gov. Walker has long advocated for public involvement in land use and disposition decisions by the Department of Natural Resources,” the governor’s spokeswoman, Grace Jang, said in an email Friday. “Nonetheless, there is need to find a reasonable balance between public involvement and the Department’s obligation to efficiently administer large numbers of temporary use permits.”
There needs to be “a meaningful public process consistent with the Court’s ruling that does not lead to unnecessary delay or expense in the permitting process,” she said in the email.
DNR Commissioner Mark Myers said in an emailed statement that a state process for public notice and comment already exists but generally wasn’t applied to this sort of activity before.
Pebble said it will follow whatever requirements the state sets out.
The Supreme Court did not find evidence of environmental damage from its exploration work, Pebble noted.
“One of our main interests in intervening in the case was to rebut the incorrect assertions that our exploration work had caused environmental harms and because the plaintiffs were trying to halt work that was underway at the time,” Pebble said in a statement emailed by spokesman Mike Heatwole. “We are pleased to note that the court concedes that there is no evidence of any harm at the site.”
Still, the exploration work leaves behind marks in the form of bore holes plugged with concrete and encased in steel, along with drilling waste buried in pits that were reseeded.
The Supreme Court found that Pebble Limited Partnership's permits were “functionally irrevocable. We so conclude because their revocation or non-renewal would substantially destroy PLP’s investment of hundreds of millions of dollars and would leave in place large-scale and long-lasting changes to the land which cannot be removed without significant damage to it.”
The justices also highlighted “the potential for environmental damage primarily through pollution of groundwater by the toxic waste that has been disposed of on the land and by acid rock drainage.”
Access to court
The Supreme Court ruling cannot be appealed, though the state or Pebble could ask for reconsideration.
The matter of lawyer fees is an important side angle. The Supreme Court ruled that economic interests were not driving the group and individuals to fight the mine, but rather “their primary purpose was securing changes to and increasing notice and public involvement in the State’s mineral exploration permitting process.”
“The import of the court’s decision is that they said these kinds of users still have access to the courthouse,” said Brown with the Trustees law firm. “That’s what Pebble was seeking, to shut that down.”
If Pebble and the state had succeeded, “it would have bankrupted the private individuals,” Brown said.
Hammond said she was grateful for support from so many Alaskans during the drawn-out court fight.
Family members still put out a subsistence net on Lake Clark right at the homestead. They smoke and jar salmon every summer.
“Our fishing is so important in so many ways,” said Hammond, whose father fished commercially in Bristol Bay back when the fleet was sailboats. “It’s like breathing fresh air. You need those things.”
Anchorage Superior Court Judge Eric Aarseth had ruled in September 2011 for the state and Pebble.
U.S. Sen. Dan Sullivan was newly installed as attorney general when the case was filed and continued in that role until just before it went to trial in December 2010. He was traveling in Asia this week and unavailable for comment, a spokesman said.
The cases were heard by justices Daniel Winfree, Peter Maassen and Joel Bolger, as well as retired justices Warren Matthews and Robert Eastaugh. The latter two were filling in on the Supreme Court because Chief Justice Dana Fabe and Justice Craig Stowers removed themselves.
The battle over Pebble continues in federal court. EPA has proposed restrictions on an open-pit mega-mine like that proposed by Pebble at the headwaters of Bristol Bay salmon streams. Pebble has accused EPA of acting illegally, before it has even applied for a permit under the federal Clean Water Act.
A federal appeals court Thursday ruled that the matter wasn’t yet ripe for court, because EPA had not issued a “final agency action.” But Pebble also is arguing, in a separate lawsuit, that the EPA was too chummy with mine opponents in crafting its Bristol Bay Watershed Assessment.