Judge grants Pebble request to subpoena former EPA official

A federal judge in Anchorage has ordered a former EPA official to appear in a case involving whether or not the Environmental Protection Agency acted improperly in the lead up the agency’s proposed restrictions against the Pebble Mine. Phillip North’s emails were reportedly destroyed, and he has apparently left the country.

Judge H. Russel Holland, in an order issued last Thursday, agreed with the Pebble Partnership that retired EPA ecologist Phillip North likely knows more than any others “what was transpiring within” the agency while the Bristol Bay Watershed Assessment was being developed.

“We just really want to get a complete picture of what was going on there, and certainly talking to Mr. North as a central person in all of this, would be very beneficial,” said Mike Heatwole, a spokesman for the Pebble Limited Partnership.

As part of its lawsuit alleging violations of the Federal Advisory Committee Act, or FACA, Pebble requested the subpoena. Holland clearly agreed with Pebble’s arguments on the centrality of North’s role, and the necessity that he appear, which he said would “further the interest of justice.”

“It is not possible,” Holland wrote, “for Pebble to obtain equivalent testimony or records from anyone else within or outside the EPA. Mr. North’s personal appearance is necessary. Indeed, the court would be surprised if the EPA were not as anxious as Pebble to obtain testimony and access to documents controlled by Mr. North.”

Phil North retired from EPA two years ago, having spent much of his career in Alaska, often around mineral development projects. Pebble alleges North was instrumental in encouraging agency involvement in Bristol Bay, perhaps several years prior to a 2010 request by area tribes.

In its various federal court endeavors to halt the EPA’s preemptive veto of the project, Pebble has obtained hundreds of pages of emails and other documents it says show improper coordination between the agency and various groups and scientists opposed to the mine. But Pebble says they have very little of the official government paper trail that should have been left behind Mr. North’s involvement; according to the EPA, North’s emails from 2002 to 2010 were lost when his computer hard drive allegedly crashed.

Pebble, and Congress, have raised a number of questions about the missing emails, and the timing of yet another Obama administration agency claiming loss of official communication brought additional media scrutiny.

“We were not told about the emails crashing until the eve of a Congressional hearing into this matter,” said Heatwole. “Then in the course of the various court cases here, we find out that there was at least one zip drive that was encrypted. Nobody knows what is really on that, or why a level on encryption was necessary, and that just adds to the intrigue, if you will,” he said.

More than just emails are missing; the EPA told Congress it does not know where Mr. North went after his retirement. It was reported he was taking his family sailing, or may have gone overseas to New Zealand or Australia. Pebble, and Judge Holland, believe North is in Australia.

Heatwole said the unknown whereabouts prompted the subpoena request.

“It was part of the decision behind filing the documents with the court to seek to compel testimony, to be able to have an opportunity to ask a lot of questions of him as to what was really his role and what was going on,” he said.

Pebble filed the motion for the subpoena, which Judge Holland granted last week.  In his motion, Holland said EPA’s rebuttal to the motion “bristles with commentary” but offered no basis for opposing the subpoena. In a footnote, Judge Holland also added that some of Pebble’s observations with respect to Mr. North “are just a bit inflammatory,” and that EPA’s comments were “not at all helpful.”

Phillip North has been ordered to appear for deposition in Anchorage on November 12.

In a previous ruling, Judge Holland allowed part of Pebble’s lawsuit alleging EPA FACA violations to proceed, and the case is still in the discovery phase.