[I'm printing the entire order, as it came as a non-downloadable PDF]
Judge Orders Trial in Lawsuit Challenging the Proposed Pebble Mine’s Exploration Permits State, Pebble Developer Lose Bid to End Suit Without a Trial
Anchorage, Alaska— On Monday, the judge in a landmark constitutional lawsuit challenging exploration and water use permits for the proposed Pebble Mine ordered a trial on five of the six claims in the case. The Court’s decision means that the plaintiffs, Nunamta Aulukestai, an association of nine Bristol Bay village corporations; former First Lady Bella Hammond; former State constitutional delegate Victor Fisher; and Bristol Bay residents Ricky Delkittie, Sr. and Violet Willson have cleared the final hurdle to trial, which is scheduled for December 6, 2010.
“This decision means that the people whose rights and livelihoods are being jeopardized by intensive exploration activities at Pebble will have their day in court to show that the State has violated the Alaska Constitution,” said Trustees for Alaska Attorney Nancy Wainwright, who represents the plaintiffs. “The State has issued permits behind closed doors without even looking at the harms to public resources. At last those harms will be addressed in court.”
The State and Pebble Limited Partnership sought to avoid a trial by claiming that, as a matter of law, the State was not required to provide public notice or any kind of public interest analysis before issuing permits for Pebble exploration.
“We applaud the court’s ruling,” said Bobby Andrew, spokesman for Nunamta Aulukestai, the lead plaintiff in the case. “As subsistence users of the region, we know that exploration is having a serious impact on water, wildlife, and fish. We rely on these resources for survival, yet DNR continues to rubber stamp permits without public notice and without any analysis to justify these impacts. There needs to be a trial on that.”
Anchorage Superior Court Judge Eric A. Aarseth held that “the most basic question in this case is whether the State was required to balance various constitutional interests when considering whether to issue the permits and do so in a transparent way.” He further held that provisions of Article VIII of Alaska’s Constitution “in order to have any meaning at all, must be interpreted as containing independent constraints on State action.” He concluded, in a 20-page decision, that the plaintiffs have “demonstrated that material issues of fact exist regarding its claims that the State did not comply with the provisions of Article VIII.” The Court also ruled that the trial would focus only on the State’s approval of Pebble exploration and water use, and not on hardrock mining exploration in other areas of the state.
The suit was filed in July 2009 against the Alaska Department of Natural Resources, which issued the permits for exploration activities at Pebble for over two decades with no public notice and no findings with respect to impacts to the constitutionally protected public resources in the area. Mine developer Pebble Limited Partnership was allowed to intervene in the case to defend the permits.
Exploration and water use at Pebble has resulted in drilling over 900 boreholes, disposing of thousands of gallons of drilling fluids onto the tundra, using explosives over a wide area, and withdrawing millions of gallons of water from lakes and anadromous streams important for spawning Bristol Bay salmon.
Shannyn Moore is covering this on her KUDO show this morning.