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State Supreme Court Hears Pebble Mine Arguments

By | December 17, 2013

The state’s highest court heard oral arguments Tuesday in appeals related to lawsuits against the proposed Pebble Mine.

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 In the first of three cases, Alaska Supreme Court justices heard attorney Nancy Wainwright, representing the tribal advocacy group Nunamta Aulukestai, [new NAM ta a LUKE es tie] and co-plaintiffs Bella Hammond and Vic Fisher, and others, who argued that under the state of Alaska constitution, plaintiffs were deprived of their right to public process in regard to temporary water and land use permits issued by the state Department of Natural Resources

“Article 8, section ten requires public notice and other safeguards of the public interest before the state disposes of interest in state lands. And we believe that the state has functionally disposed of interest in state lands by leaving the thousands of bore holes and toxic waste pits that will never be reclaimed, as well as using a lot of water, taking it out of its natural state.”

Wainwright told the Justices that there are thousands of pits of buried drilling muds and hundreds of exploratory bore holes dotting the tundra due to mine exploration — things that cannot be removed. Wainwright argued that the scope of the exploration and the number of related permits triggers the public’s right to weigh in. Wainwright said that the Superior Court erred when it did not take into account that these wounds on the land can never be removed, or that the water used in Pebble exploration would not be returned to its natural hydrological cycle

The high court must decide if the permits require the full public process, overturning a 2011 Superior Court decision in favor of the state.

State assistant attorney general Laura Fox, in arguing for the department of natural resources, told the court that there are many types of permits, registration agreements, and leases, all with different requirements on the part of permitting authorities.

“Well the state’s position is that the permits were legal and complied with all requirements and that the state’s comprehensive land and resource management system complies with the Alaska Constitution, and protects state land and resources and the evidence at [Superior Court ] trial showed that there was no harm to state land and resources from Pebble’s temporary exploration activities.”

 Fox told the Justices that some permits require notice, others, don’t.  And, Fox said that the plaintiffs claims that additional protections should be added to a particular land or water permit is not covered under article 8 of the state constitution.

 A second and a third case heard by the high court Tuesday dealt with court costs and fees related to Pebble litigation. Plaintiffs attorneys argued that public interest litigants with limited funds should be spared court costs if they lose, while attorneys for Pebble Limited Partners held that substantial economic interests are behind prosecuting the case against Pebble. Pebble attorney Howard Trickey pushed for further investigation into those funding the cases against the mine, claiming that many of the plaintiffs are ” proxies ” acting on behalf of commercial fishing interests, and that plaintiffs had an economic interest in filing the suit against the mine.

“It’s protecting the habitat for the fisheries resource for exclusive use by the fisheries industry. And by commercial fishermen. Protecting the water, so that that water is used exclusively for one resource user and preserving and protecting that resource. These plaintiffs were proxies, agents if you will, for substantial economic interests in the commercial fishing industry to bring this case. “

 Attorney for the plaintiffs, Victoria Clark, told the court that Nunamta Aulukestai officials had no money to process the case, and that they swore under oath that they could not pay costs if they lose the case. She told the justices that the Superior Court had found that Nunumta Aulukestai could not have afforded this case

“Discovery of Nunumta’s third party funders should not be allowed. The state and Pebble want to know the cost of the lawsuit and who paid for it. Funding of a lawsuit has never been a basis for requiring Constitutional litigants to pay the other side’s attorneys fees. In this case, both Nunumta and the individuals stated under oath that they controlled the litigation and that they are not parties to any indemnification agreements. The fact that none of Nunumta’s funding was used for this case makes delving into information about Nunumta’s funders completely irrelevant to establishing its economic incentive. “

 The Alaska Supreme Court Justices took the matters under advisement.

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