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Vol. 15, No. 47 Week of November 21, 2010
Providing coverage of Alaska and Northwest Canada's mineral industry

Mining News: Alaska lawyers fend off enviros, feds

Attorney general informs miners of law department’s strategy to protect responsible development of state’s natural resources

Shane Lasley

Mining News

Under the leadership of Gov. Sean Parnell, the Alaska Department of Law has not hesitated in taking up cases important to the responsible development of the state’s natural resources. Parnell, who assumed Alaska’s top position when former Gov. Sarah Palin stepped down from the position in July 2009, recently won election to his first full term as governor with landslide margins during the 2010 general elections.

“Alaskans have just overwhelmingly elected a governor who, I can assure you, is very focused on the importance of resource development for the state and its future. And also, very importantly, he is willing to fight for it,” Alaska Attorney General Dan Sullivan told delegates to the Alaska Miners Association 2010 annual convention in Anchorage.

As part of his transition into his first full term as governor, Parnell has appointed Alaska’s top attorney as the state’s new Department of Natural Resources commissioner. The governor announced the appointment Nov. 18 during a presentation to the Resource Development Council’s annual conference in Anchorage.

Fending off federal agencies and environmental groups overstepping their legal bounds in an effort to delay or stop resource development in Alaska has prepped Sullivan for his new role.

“One of the challenges we see is we are under an unprecedented assault by federal agencies and environmental groups to lock up Alaska’s resources,” Parnell said during a speech in October. “Yes, we have filed a lot of lawsuits, and I don’t apologize for any of them.”

Though state attorneys frequently find themselves in the courtroom, the Department of Law’s strategy emphasizes reaching an amicable solution before pursuing litigation.

“We will continue to work cooperatively with those who have different views, and if we need to, we will litigate to ensure the interest of Alaskans and our economy is protected.” Sullivan told the crowd.

A win in the Ninth Circuit

Shortly before taking the lectern to address the AMA audience Nov. 4, Sullivan received word that the State of Alaska chalked up a win against environmental groups in the U.S. Ninth Circuit Court of Appeals.

“I was literally walking out the door this morning to give these remarks, and I got an email saying we just won this big case in the Ninth Circuit,” Sullivan said.

The big case to which he referred is a two-to-one decision by a three-judge circuit court panel that upheld the transfer of the permitting program for discharges under the federal Clean Water Act from the U.S. Environmental Protection Agency to the Alaska Department of Environmental Conservation.

The EPA approved the state’s application in 2008, triggering a four-phase transfer of its authority under the National Pollutant Discharge Elimination System program to DEC.

Several environmental groups challenged the transfer. Alaska intervened in the case against the federal government, resulting in the Ninth Circuit affirming that the state had met all the criteria to assume the wastewater permitting authority.

The court win came just four days after phase-3 of the transfer, which gives the permitting authority over mining wastewater discharges to the ADEC.

“This victory shows why it is important for the state to intervene in litigation that affects Alaska’s interests,” said Sullivan.

The “Hail Mary” pass

Alaska attorneys under Sullivan are not only having success in the Ninth Circuit court, but also have marked at least one U.S. Supreme Court case in the win column.

That case involved a challenge to a permit issued to Coeur d’Alene Mines Corp. by the U.S. Army Corps of Engineers that allows the company to dispose of waste rock from the Kensington gold mine in a nearby lake.

The State of Alaska stood alongside Coeur throughout a protracted legal battle to retain the Corps permit for tailings disposal in the lake. The state’s lawyers are believed to have played an instrumental role in convincing the high court to take up the case.

Sullivan compared the odds of the U.S. Supreme Court Justices hearing the case to those of a “Hail Mary” pass.

“A lot of attorneys in the Department of Law take a lot of pride in this case,” Sullivan said. “The U.S. Supreme Court gets about 8,000 petitions for review a year, they take about 80 of them; so getting anything in front of the Supreme Court is a long shot. If it is a federal issue, involving a federal regulation, by a federal agency and that agency is not requesting the Supreme Court review it, the chances go way further down.”

Not only did the attorneys for Alaska and Coeur get their case heard, the High Court Justices ruled 6-3 to uphold the tailings disposal permit for the gold mine near Juneau.

In June Coeur put the Southeast Alaska mine in production.

“The opening of the Kensington mine, with the creation of hundreds of well-compensated jobs, demonstrates why the State of Alaska should not hesitate to intervene in cases that threaten our ability to develop our resources responsibly,” Sullivan said during an opening ceremony held at Kensington in September. “When the state brings its legal expertise to bear on these important matters, we often prevail.”

Sullivan described the Kensington event as one of his best days on the job as Alaska’s attorney general.

“It is one thing to work on these legal briefs and write about tailings ponds and things, and yet you are a little bit removed. It is quite another thing to go and see the result of the case and the legal work, and see that there are 200 people working in a world-class mine – in part because you had some good lawyers on the back side defending their interest and throwing a ‘Hail Mary’ pass with one second left, and it was caught.”

Winning … a lot

Sullivan said the Department of Law is fending off litigation on multiple fronts that threaten Alaska’s sovereignty and challenges the state’s constitutional obligation to develop its resources in a responsible and sustainable manner.

“We share the belief that responsible resource development and protection of the environment can and do happen together in Alaska. As a state official, it is our constitutional duty to try and do both,” the attorney general said.

Though the state is taking up litigation in a lot of cases, Sullivan points out that the state’s legal arguments are not obstructionist, but, conversely, are built on a strong legal foundation.

“They are not frivolous at all. We are winning, a lot, in the courtroom,” he said.

The attorney general only needed to go back to his department’s win in the Ninth Circuit Court earlier that day to find an example of the quality of the arguments being put forward by his legal team.

“That is a tough circuit to win these environmental cases, so when you are winning there, you know you are doing something right,” he added.



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