With Mining Increasing in Alaska, State’s Permitting Process Appears to be Broken
By Hal Shepherd
While mining projects are dramatically increasing in Alaska under the Trump and Dunleavy Administrations’ pro-extraction policies, citizen oversight of permitting is virtually nonexistent. The problem can be traced back to 2003, when the Alaska legislature eliminated the “public interest litigant” rule that protected anyone without economic incentive, who was challenging decisions involving public lands, waters, fish, or game. Now, Alaska is the only state in the Country to require the losing party in such lawsuits to pay for all or a part of the prevailing party’s attorneys’ fees.
Legal experts claim that because the “Loser-Pays-Rule” is clearly intended to discriminate against the general public who might be considering filing good-faith environmental protection claims, it violates the concepts of fundamental fairness contemplated by the Bill of Rights and the U.S. Constitution. Specifically, in describing the legal obligation of state governments, the Fifth Amendment states that no one shall be “deprived of life, liberty or property without due process of law.” Then, in the only instance in which a prohibition is stated twice in the Constitution, the Fourteenth Amendmentrepeats the identical terms in what has been referred to as the “Due Process Clause,” which mandates that governmental entities must provide fair process before depriving a citizen of the United States of life, liberty, or property.
That Alaska’s Loser-Pays-Rule has had a chilling effect on good-faith public-interest law cases, as illustrated by the fact that non-profit organizations and tribal organizations have dramatically slowed the filing of environmental protection lawsuits. According to Trustees for Alaska, a public interest law firm based in Anchorage that focuses on such cases, “[t]his policy creates a chilling effect, deterring people from going to court to ensure protection of our lands and waters. When citizens do not have access to the courts to challenge government or industry it hands a free pass to those that would issue lax permits, purposely violate the rules or take advantage of poor oversight when it comes to coal mining in Alaska.”
A recent example of this chilling effect is a permit to conduct exploratory drilling in the Imuruk Basin of Northwestern Alaska, issued by the Department of Natural Resources to the Graphite One Mining Company. After several tribes and the Norton Bay Watershed Council appealed the permit, citing concerns about impacts to subsistence and cultural resources in the biologically and culturally rich area, DNR found the appeal deficient, claiming that it had not been properly signed. Although the Tribes fully complied with the express language of 11 AAC 02.030(a)(3) in filing the appeal, essentially, the agency read its own interpretation into the regulations requiring that the appellants correct the deficiency. The correction, however, required a longer process to obtain signatures and to re-file the appeal, allowing the drilling to run its course.
While one could say that DNR could not have legitimately acted on the appeal until after it had been properly filed or stopped the drilling until that occurred, another appeal of the permit submitted was similarly swept under the rug. Austin Ahmasuk, an activist who has long been a protector of the Imuruk Basin who submitted that appeal, said “I have not received any response regarding how the appeal or stay request was handled. In that sense, it feels as though the appeal has effectively been ignored.”
Whether it is because DNR knows it is highly unlikely it will be taken to court or for some other reason, it appears that the public process is broken. According to Ahmasuk:
…What happened with this land use permit appeal is not just about a single project. It highlights broader concerns about whether Alaska’s regulatory system is providing meaningful opportunities for public involvement. When communities invest the time and effort to participate, their concerns deserve to be heard and considered before decisions are finalized.
Graphite One likes to say that the impacts of the proposed 1.1-mile-wide open pit mine that includes a 17.3-mile access road will be all but eliminated because, the mining company will be required to obtain a couple of dozen State permits that are supposed to protect water flow and quality, air pollution, cultural resources, and multiple other potential impacts. But if what happened with the drilling permit is any indication, it’s beginning to look like the state will simply rubber-stamp the permits and then ignore any appeals. As such, at a packed community meeting about the proposed mine, recently held in Brevig Mission, even the Mining Company expressed dismay that the state swept the challenges to the drilling permit under the rug. Ed Fogal, Graphite One’s Environmental and Permitting Manager, said “I wish they had just made a decision on the appeal.”
It seems, in part, that due to the ramifications of the Loser-Pays-Rule, the State is of the opinion it can do anything it wants without having to worry about repercussions. This is clearly an issue that should be raised with legislators in Juneau who need to understand how difficult it can be for rural communities and Tribes to engage in the permitting processes and what happens when the system fails to respond in a timely and meaningful way.