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Pebble battle continues in courts

June 20th, 2014 | By Dave Bendinger Print this article   Email this article  

The constitutionality of the ballot initiative known as Bristol Bay Forever was argued before Alaska's supreme court on June 11. The court's opinion is expected to decide whether or not the initiative appears on the November general election ballot.

The case Hughes v. Treadwell was filed in the Fairbanks superior court about a month after Lt Gov. Mead Treadwell certified the Bristol Bay Forever Initiative at the end of 2012. The plaintiffs, Richard Hughes, the Alaska Miners Association, and the Council of Alaska Producers, are represented by attorneys for the Pebble Limited Partnership. The defendants are Treadwell, the state's Division of Elections, and the sponsors of the initiative, Christina Salmon, Mark Niver, and John Holman.

If adopted by voters, the initiative would require final approval from the state legislature for hard-rock mines in Bristol Bay. For example, if the Pebble Partnership were to receive all of the necessary permits and authorizations, state lawmakers would then have the final say in whether the mine could be developed or not. Backers say the initiative will give Alaskans another layer of protection for the Bristol Bay fishery.

But the plaintiffs in the case say initiative is "improper," because it "constitutes impermissible local and special legislation and violates the separation of powers doctrine." The arguments are similar to those made against the Save Our Salmon Initiative, which was struck down earlier this year in a separate case.

After a year in court, Fairbanks Judge Paul Lyle ruled in favor of the defendants, essentially saying that the initiative does not violate Alaska's constitution and could go forward to voters.

The Pebble-backed plaintiffs requested that the case then be taken up by the supreme court, which heard arguments last Wednesday. An opinion is expected before the November election. BBFI has been moved to initiative number four, in case the court rules it should be removed from the ballot.

House and Senate bills would alter Clean Water Act

Groups opposed to the Pebble Mine have come out strongly against a recently introduced House bill they say will limit the Environmental Protection Agency's ability to regulate the disposal of mine waste in Bristol Bay. The Regulatory Certainty Act of 2014, sponsored by Reps. Bob Gibbs (R-Ohio) and Nick Rahall (D-W.Va) is similar to Senate Bill 2156, which was co-sponsored by Sen. Lisa Murkowski. Both bills would alter the language of the Clean Water Act to allow for EPA intervention of dredge and fill permits only after those permits have been applied for.

Currently, the EPA is undertaking what some call a "preemptive" veto of the Pebble Mine, using what the agency says is its authority under Section 404c of the Clean Water Act. Pebble, and the legislators sponsoring these bills, hope to clarify the language of CWA to limit the EPA's role. West Virginia lawmakers cite the "retroactive" EPA veto of permits for the Spruce Coal Mine as an example of the agency's overreach.

Press releases condemning the House bill were issued from the Bristol Bay Regional Seafood Development Association, the United Tribes of Bristol Bay, and Trout Unlimited.

"Thousands of Alaskans came together to request EPA action to protect Bristol Bay because we were not getting any help from the State of Alaska," wrote Trout Unlimited's Alaska Program Director Tim Bristol. "This bill helps pave the way for Pebble by removing the very part of the Clean Water Act that the people of Alaska have asked be used to protect Bristol Bay."

United Tribes of Bristol Bay President Robert Heyano wrote that "any change to the Clean Water Act would delay the EPA's ability to protect Bristol Bay and would have major consequences for our people and region."

Missing EPA staffer, missing EPA emails concern House Oversight Committee

The EPA's role in protecting Bristol Bay from the Pebble Mine is the subject of an internal agency investigation and questions from the House Committee on Oversight and Government Reform. Emails produced from a Freedom of Information Act request suggest that the agency, or at least some senior staffers, may have been working to undermine Pebble before EPA officially announced its early involvement.

But as Washington Times investigative reporter Phillip Swarts, who initially broke the story in April, reported last week, one key figure central to the controversy is unavailable, as are his emails. Former agency official Phillip North, now retired, seems to be missing, and the agency said a computer "crash" has wiped out a record of additional emails from his government account.

Swarts writes that "the former official at the Environmental Protection Agency was central to the controversy swirling around an Alaskan mining project that includes accusations of federal overreach. Now representatives on the House Committee on Oversight and Government Reform want to question him.

There's just one problem: No one can seem to find North, who, after retiring, might have left the U.S. Nor do his legal representatives seem inclined to disclose his location, according to committee officials."

Swarts quotes an email from a lawyer representing North, suggesting the retired official is on an extended family vacation traveling through the Western United States before perhaps traveling abroad to New Zealand. The lawyer stated North was unwilling to leave the vacation to testify before the House Oversight Committee, which is chaired by Republican Congressman Darrell Issa. And without an exact address of where to reach him, Congress cannot serve North with a subpoena to appear.

Some say that North's emails between 2008 and 2010 show he and others were advocating for a preemptive veto before the EPA officially took a role in 2011. The agency says its involvement was based solely on a response to requests from Bristol Bay area tribes. However, the emails, and some agency presentations used to brief then-Administrator Lisa Jackson, suggest the fix may have been in long before 2011.

The House Oversight Committee requested a record of North's emails and other files relating to Bristol Bay and the Pebble Mine, according to Swarts. But agency officials now say North's computer "crashed" in 2010, deleting all records of those files.


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