Mining News: EPA raiders muddy U.S. Attorney’s office

When agents of the federal government go rogue, it is incumbent upon the Justice Department to secure our faith in the system

J. P. Tangen

Special to Mining News

On March 13, 2014, Gov. Parnell released a report of Special Counsel Brent Cole on the federal Criminal Compliance Investigation conducted in the Fortymile mining district between Aug. 19 and Aug. 23 last year. The report is not lengthy and is available on the Internet for all to review.

To be clear, the report found no evidence of criminal misconduct on the part of the investigators. But the report does underscore and lay bare a significant problem with the way the investigation was initiated and the ensuing follow-up.

The report discloses that during the site visits, there were no “incidents,” notwithstanding the surprise factor and notwithstanding the fact that the investigators were armed and defensively attired.

What is made clear from the Cole report, however, is that the operation was totally inappropriate. Apparently, it all started when on Sept. 12, 2012, a federal Bureau of Land Management “Ranger” contacted the Alaska State Troopers in Fairbanks and told them that there were “suspicious activities occurring along the Taylor Highway.” A group of individuals with “prison tattoos” were “heavily armed” and not working! Some of them had criminal histories, “including bank robberies.” The ranger also identified other people that he believed were conducting “illegal activities” across the border, including “possible drug smuggling” or “human trafficking.”

A state trooper and the ranger traveled to the identified areas, but the trooper was unable to substantiate the ranger’s story. The ranger, meanwhile, did not confine his protestations to the state troopers. On Feb. 1, 2013, an Alaska Department of Environmental Crimes Unit officer received a call from an EPA criminal investigator who wanted to start planning a “crackdown” on Fortymile area placer mines that were producing “dirty water,” saying the discredited ranger was helping to coordinate the operation.

In April, the ECU officer and three federal investigators held a meeting at which the “five worst miners” in the Fortymile area were identified, and it was alleged that BLM was not actively policing water-discharge violations. The ECU officer made it clear that he did not believe the information supported a criminal investigation. The EPA continued to plan the site visit. On Aug. 1, a federal aerial reconnaissance flight was conducted over the Fortymile area. An ECU officer was on board and took notes on his observations of the 24 sites overflown. Of the target sites, his notes reflected that only one had an ongoing discharge. According to the ECU officer, the level of conduct he had observed would not “give rise to a criminal investigation of the nature being planned.”

Nonetheless, on Aug 14, an approved operations plan was emailed to various supervisors and directors of the impending operation; however, none of the heads of the Alaska departments of Public Safety, Natural Resources, Fish & Game nor Environmental Conservation were made aware of the operation prior to its commencement. On Aug. 19, nine feds and an ECU officer began the Criminal Compliance Investigation. After the raid had started, an EPA criminal investigator spoke with the trooper and asked him if anything was going on in the area that the investigators needed to know about, and the trooper said, no. The EPA investigator indicated that the CCI investigators had reached the same conclusion. Nine operations were investigated over the four days the investigators were in the field. All of the miners had obtained the required permits. Although the ECU officer continued to express his strong reservations about the nature of the criminal investigation, the EPA investigator who spearheaded the effort and who was pressing for the raid ignored him.

In conducting his investigation, Special Counsel Cole reviewed 10,000 pages of redacted and confidential documents and interviewed more than 50 witnesses. The entire inquiry was characterized by obstructionism from the EPA. The nefarious ranger was not allowed to be interviewed.

What is troubling about Cole’s report is that his findings clearly establish that the justification for the Fortymile misadventure was premised on the frailest of grounds. The complaining ranger, if not lying through his teeth, was exaggerating wildly about the existence of problems in the area. The heads of interested state agencies were not briefed and kept apprised of the details of the operations. The state officials, who would normally be expected to work closely with the Compliance Enforcement Unit officers, were demurring, if not unequivocally counseling against the operation.

Since the raid, none of the miners have been charged, although seven months has elapsed. Of course, we are on the edge of the new field season, and there is a great deal of uncertainty about what will happen this year.

Most distressing, however, is that the Office of the United States Attorney has weighed in on the wrong side of the issue. In a letter to Special Counsel Cole, Asst. U. S. Attorney Kevin Fields said, “in December, you wrote us a letter stating that you ‘had not been made privy to any law violations’ during your investigation. As we expressed during our meeting, we would have thought such a finding on your part would have ended your inquiry.”

The U. S. Attorney’s office should recognize that it is held to a higher standard. It is vested with broad discretion, and in the light of zealotry by other agencies of the United States, it should be expected to exercise that discretion for the benefit of the public. What was done by EPA or who was responsible for it, we trust will be the subject of internal investigations, and in due course, we are confident the miscreants will be duly sanctioned; but the state’s Special Counsel should clearly have been supported in his investigation by the U. S. Attorney and the inquiry should have been transparent and forthright.