Story last updated at 8:57 PM on Wednesday, October 28, 2009

Judge clears way for lawsuit disputing mining aspects in Bristol Bay land plan

By Margaret Bauman

A Dillingham judge has denied state motions to dismiss seven of eight arguments challenging a land-use plan that would allow for development of the Pebble mine in Southwest Alaska.

The Oct. 13 decision from Dillingham Superior Court Judge Fred Torrisi clears the way for groups opposed to Pebble mine development to challenge in court the validity of the revised Bristol Bay land-use plan, approved in 2005 by the Alaska Department of Natural Resources.

John Baker, the senior assistant attorney general representing the state in this matter, said Oct. 20 that his office is reviewing Torrisi's decision to determine whether to ask the court to reconsider his decision.

At issue is whether the Bristol Bay area plan for state lands, revised in 2005, is in compliance with state statutes. The case is expected to proceed on its merits, to be heard in trial before Judge Torrisi in Dillingham, or it may be decided by summary judgment.

Torrisi on Oct. 13 denied a state motion to dismiss seven of eight causes of action brought by plaintiffs, all of whom oppose development of the Pebble project, a copper, gold and molybdenum deposit at the headwaters of the Bristol Bay watershed.

Dismissal would have assured PRIORITY for development of mining claims, including the Pebble project, within the 2005 Bristol Bay area plan for state lands.

Torrisi noted in his decision that the Bristol Bay area plan was developed using legislative guidelines, to provide a roadmap for future decisions concerning the use of state land.

Torrisi noted that plaintiffs allege that the 2005 plan fails to comply with state law, while the Department of Natural Resources argues that the plan is not a regulation, but rather a planning tool, a quasi-executive document that sets standards for future action.

After studying the case, Torrisi concluded that the plan is a regulation, and therefore subject to action for declaratory relief, and that the case can proceed.

The case was filed in Dillingham Superior Court in June on behalf of the Nondalton Tribal Council, the Kolignaek Village Council, the New Stuyahok Traditional Council, the Ekwok Village Council, the Curyung Tribal Council, and the Levelock Village Council.

The state of Alaska, the Department of Natural Resources and Natural Resources Commissioner Tom Irwin were named as defendants.

The plaintiffs, all federally recognized tribes, represent a number of people who lead a subsistence lifestyle, and who have voiced concerns that development of a large scale mine would threaten that lifestyle.

Plaintiffs allege that the 2005 Bristol Bay area plan for state lands, which replaced the 1984 plan for Bristol Bay area state lands, reclassified land use of millions of acres of land to give PRIORITY to hard rock mining, and does not adequate protect fish and wildlife resources.

Plaintiffs allege that the 2005 Bristol Bay area plan adopted by Natural Resources Commissioner Tom Irwin skewed away from the region's rich fish and wildlife habitat the protections offered under the 1984 plan, while encouraging and protecting the development of mining on nearly all of the 12 million acres of state-owned uplands whose waters flow into the Bristol Bay watershed, home of the world's largest sockeye salmon fisheries.

Among the contents of the 2005 plan challenged are the ad hoc definition of wildlife habitat land, which plaintiffs allege will allow the land to be retained for habitat only if a species exhibits "the phenomenon of having a 'concentrated use area,' and if such an area coincides with a 'sensitive life history stage'." The regulatory definition of habitat, by contrast, is not so limiting, and covers habitat used at all stages of the animals' life history, plaintiffs allege.

Torrisi is now expected to suggest a scheduling conference of attorneys representing the plaintiffs and the state, to decide what needs to be done to move the case challenging the land use plan forward to trial. The case will be heard by Torrisi in Dillingham.

In another legal action unrelated to the Bristol Bay land use plan, but relevant to the Pebble mine project, the Alaska Public Offices Commission on Oct. 15 rejected a proposed settlement over alleged violations of state law regarding millions of dollars funneled to groups seeking to stop development of the Pebble mine.

The proposal called for a total payment of $35,000 from several individuals, including political consultant Art Hackney and Anchorage businessman Bob Gillam, who backed Ballot Measure 4, which called for stricter rules for water-pollution discharges for large mines.

The Resource Development Council and the Pebble Partnership had filed a complaint alleging 18 violations of election laws and the APOC staff had found 17 of them to be valid, John Shively, president of Pebble Partnership, said at the Resource Development Council's weekly breakfast Oct. 15.

The staff had originally recommended the maximum fines APOC could levy, as well as a criminal investigation by the state attorney general.

APOC released two reports during the summer saying that Hackney and others illegally funneled millions of dollars to support the anti-Pebble campaign through groups that included the Renewable Resources Coalition, Americans for Job Security and Alaskans for Clean Water.

Anchorage attorney Doug Pope, who represented Hackney, told the commission that none of the allegations were true. Counsel for the Pebble Partnership and Resource Development Council had accused the Pebble opponents of conspiring to hide the source of many of their contributions.

In the battle over Ballot Measure 4, which could have been used to block development of the Pebble mine, the two sides spent a total of $12.l5 million trying to influence voters with radio, television and print advertisements.

APOC staff had recommended that the case be settled with the $35,000 payment with no one admitting guilt, to avoid costly litigation, but the commissioners did not agree with the staff recommendations.

The commissioners concluded that settling the case was not in the public interest at this time.

APOC staff also has proposed that fines be levied on two pro-mining groups that campaigned against Ballot Measure 4, for failure to file timely reports.

Margaret Bauman is a reporter for the Alaska Journal of Commerce.