A state Superior Court judge ruled Oct. 14 that the Department of Natural Resources cannot ignore water reservation applications filed by the Chuitna Citizens Coalition.
The coalition applied for three instream flow reservations on the Western Cook Inlet Chuitna River for fish and wildlife protection in 2009. After more than two years of inactivity on the applications, the Chuitna Citizens Coalition and environmental advocator group Cook Inletkeeper filed a joint lawsuit against DNR in November 2011.
Third District Judge Mark Rindner wrote in his ruling that “DNR has unreasonably withheld agency action on Chuitna’s IFR (instream flow reservation) applications.”
He added the court could only require DNR action on the applications if the agency has a “non-discretionary duty,” meaning it has freedom to approve or deny the applications.
The coalition requested the water reservations as part of an effort to block a surface coal mine in the Chuitna River drainage proposed by PacRim Coal LLC.
An Oct. 17 Coalition press release regarding the court ruling said the PacRim project would be the first mine in the state to operate through a wild salmon stream.
“(The Oct. 16) ruling is a victory for every Alaskan who wants to protect wild salmon and the Alaskan way of life,” Coalition founder Ron Burnett said in the release. “Time and again, the state of Alaska has put the interests of Outside mining interests ahead of the rights of Alaskan residents. This decision should help restore the balance.”
The instream flow reservations protect specific water uses such as transportation, recreation and fish wildlife habitat, according to the Division of Mining, Land, and Water branch of DNR.
Rindner ruled in favor of the coalition on a second count, stating that “DNR has violated Chuitna’s right to due process” under the Alaska Constitution.
The state agency had argued that the coalition did not have a protected property interest in its applications and that DNR has not shown prejudice toward the coalition because its applications were receiving the same process as other, similar applications.
In his explanation, Rindner wrote frankly that the coalition has been “stuck in limbo” since its applications have gone unprocessed. He gave DNR 30 days to begin adjudicating Chuitna’s claims.
Chuitna paid DNR $4,500 in nonrefundable fees when it submitted its applications. The first application was filed in June 2009 along with a $1,500 payment and was rejected for being too broad and Chuitna was given 60 days to revise it, the court filing states.
The original application was revised and two subsequent applications were filed for different portions of Chuitna’s namesake river in August 2009. DNR denied Chuitna’s request to cover all three applications with the one $1,500 fee, so the coalition paid another $3,000.
At the time, the agency said it was not appropriately staffed to process the applications, according to the ruling. Claiming a lack of resources delayed processing of the applications would be reasonable for “weeks or months, but cannot excuse DNR’s four-year delay,” Rindner wrote.
Rindner questioned why Chuitna was required to pay $4,500 in administrative fees meant to cover up to 40 hours of staff time needed to process the three applications if they were never going to be acted upon. Because the Chuitna Coalition was forced to put up the money with the applications, it has an interest in the applications that has been prejudiced, he determined.
“Were DNR requiring payment once it was going to take action on the application, the circumstances might be different,” Rindner wrote. “However, DNR charged Chuitna a $4,500 nonrefundable fee as part of its application and that fee, along with Chuitna’s application, has disappeared into DNR’s files and the state’s treasury. There is no excuse for DNR’s charging an application fee and then take no action on the applications.”
Any Alaskan is eligible to apply for an instream flow reservation, and hundreds have, according to Rindner’s ruling. Of the 52 applications approved, 51 were filed by the Alaska Department of Fish and Game. A determination has never been made on a private party’s application, Chuitna claims, and the inter-agency flow reservation applications take up to 15 years for DNR to process.
In the time since Chuitna filed its instream flow applications, DNR has approved several temporary water use permits to PacRim Coal. The temporary use permits do not grant water rights and are good for up to five years.
Fish and Game also has a flow reservation application pending with DNR for the Chuitna River that it filed in 1996. DNR has stated that it will probably process the two applications together.
Simply filing an application does not give a party an appropriation priority or right to water, Rindner determined. That ruling threw out Chuitna’s first allegation that DNR’s adjudication delay violated its “first in time, first in right” claim.
However, an approved application does grant priority, which furthers Chuitna’s interest in having its applications processed expeditiously, Rindner stated. Additionally, if its applications would be denied on first ruling and review, the coalition would not need to dedicate further resources to its cause.
Elwood Brehmer is a reporter for the Alaska Journal of Commerce. He can be reached at email@example.com.