The U.S. Court of Appeals for the 9th Circuit is preparing to rule against construction of the tailings facility at Kensington gold mine near Juneau. The court made the announcement March 16 in a separate ruling that denied the U.S. Army Corps of Engineers permission to construct an interceptor ditch for Kensington. Idaho-based Coeur d’Alene Mines must now decide what to do about its half-finished project.
“We are surprised and disappointed in the court’s announcement and what it might mean for the over 400 Kensington workers and the economy of Southeast Alaska,” said Coeur’s president and CEO, Dennis Wheeler. “We followed the rules and established process set by the regulatory agencies involved to obtain this permit. As a result, we are simply at a loss to explain the basis for the court’s decision. Once the court releases a full explanation of its ruling, the company will consider all options of appeal,” he added.
“The Kensington permit was a test case by the Bush administration to resurrect destructive mining practices from the pick-and-shovel days,” said Tom Waldo, the attorney with law firm Earthjustice who represents the plaintiffs — a coalition of environmental organizations. “We’ve learned from the mistakes of the past. The Clean Water Act prohibited these practices, and today’s court ruling confirms that,” Waldo added. He expressed hope that the ruling would deter other operations in Alaska, including Pebble, from attempting to dispose of tailings in lakes.
The Southeast Alaska Conservation Council, the Sierra Club and Lynn Canal Conservation brought the lawsuit to oppose the Corps of Engineers’ issuance of a 404 permit to Kensington that permitted the disposal of tailings in Lower Slate Lake. In August 2006, a U.S. District Court judge in Anchorage dismissed the lawsuit. The environmentalists appealed and the 9th Circuit court heard the case in December.
Company has builttemporary cofferdamCoeur’s plan for the tailings facility was to construct a 90-foot high, 500-foot long dam at the lake’s outfall point. After SEACC filed its appeal, the company built a temporary cofferdam, approximately 20 feet high. Coeur had begun construction of a sturdier 38-foot high earthen dam behind the cofferdam when the 9th Circuit court halted further construction at the site pending the outcome of the appeal. Meanwhile, the Corps of Engineers’ filed an emergency motion requesting construction of a diversion ditch of the type that Coeur envisaged using as part of the tailings facility.
In their ruling, the three 9th Circuit judges accuse Coeur of rushing to construct the temporary cofferdam in the 20-day period in August between the dismissal of the lawsuit in Anchorage and the injunction issued by the 9th Circuit court pending the appeal. In a motion to vacate the injunction in November, Coeur raised concerns about the possible effect of weather on the integrity of the dam. The court denied the motion and directed the parties to meet and consider how to address the threat posed by weather conditions.
“The parties met, but disagreed regarding how to address the perceived threat to the integrity of the cofferdam,” the judges wrote. “Now, the Corps seeks this court’s authorization of a plan involving the construction of a diversion ditch. ... Coeur Alaska’s ditch plan violates both the letter and the spirit of the injunction,” they continued. “Coeur Alaska’s plan would require cutting trees on 7.6 acres of forested land, building a 30-foot wide road, excavating and digging a 3,000-foot ditch, filling in 4.5 acres of nearby wetlands with 28,800 cubic yards of fill material, diverting natural surface water and groundwater flow, altering the natural level of the lake ... and altering the natural flow of the creek.”
Court: injunction to maintain status quoThe point of the injunction was to maintain the status quo, not to enable Coeur to proceed with construction of its tailings facility, the judges noted. “Rather than address the dangers it perceived to the integrity of the dam by removing the hastily constructed temporary dam, or constructing spillways, or utilizing other means to resolve the problem created by the construction of the dam, Coeur Alaska seeks to fashion a remedy that furthers its intention of disposing of tailings in Lower Slate Lake,” they wrote.
The court will rule soon in favor of SEACC in the lawsuit, the judges wrote. “All construction-related activities furthering the implementation of Coeur Alaska’s plan of disposing tailings into Lower Slate Lake should cease and not be undertaken. Coeur Alaska and the Corps have the responsibility to address the integrity and/or removal of the temporary cofferdam itself,” they instructed.
Pointing out that the majority of recent decisions by the 9th Circuit Court that reached the Supreme Court were overturned, Steve Borell, executive director of the Alaska Miners Association, suggested that the 9th Circuit judges should visit Kensington and see how much snow has fallen, and how much water there is likely to be in the area during spring break-up. Borell supports Sen. Lisa Murkowski’s proposal to divide the 9th Circuit Court into two separate courts, because it covers so many states.
“There’s a bigger issue here than just the one permit,” Borell told Mining News. “If you can’t depend on the Circuit Court to uphold what the agencies determined was best for the environment, why don’t we just have the court doing the permitting for us? It’s real disappointing.” The case also shows that the National Environmental Policy Act needs to be revised, Borell added.