Copper/Gold/Fish/Water: Keeping Alaskan Debate Alive
by Kathryn G. Arlen
Controversy can breed contempt or compromise, yet one may hope the former leads to the latter. Such is the ongoing situation with the proposed Pebble mine project (the Pebble Partnership) in SW Alaska, for years continually suggested as a battle between copper/gold exploration and the safety of clean water and abundant fisheries—a basic “either/or” concept. Almost exactly two years ago the controversial Ballot Initiative Four (ostensibly billed the “Clean Water Act,” but calling for excessive permitting—often duplication--and implying possibly unsettling interpretations) was defeated by Alaskan voters. Large scale mining in Alaska enjoyed a temporary reprieve. But, as Joe Usibelli, Jr., CEO of Usibelli Coal Mine, predicted then: “They will be back.” And back they are.
Current protagonists in this continuing disputation include plaintiffs from several native villages, a few specific local residents, and/or other interested individuals who are claiming the Department of Natural Resources did not adequately assess Pebble’s current exploration activities in terms of the public’s basic right to know and subsequently issued certain types of permits without this [assumed] due process. However, that is a cursory, superficial analysis which more detailed factual research challenges.
With trial date set for Dec. 6, one of the original six claims has already been dismissed by Superior Court Judge Eric Aarseth, with the judge also ruling the trial will not address the validity of the state’s mineral exploration permitting system—a major, recurring theme these immediate plaintiffs and other Pebble opponents consistently promote. Water acquisition and use—vital to every phase of mineral exploration and production—is, again, the target within the narrow focus. At issue now is whether the type of permitting under which Pebble exploration is functioning constitutes a “disposal of state interests,” explained Tom Crafford, mining coordinator with the Alaska State Department of Natural Resources. The Pebble Project has been issued miscellaneous land use permits, MLUPs, by the DNR and “…these are not disposals,” he continued. “Look at Section 11 of Article VIII [of the Alaska State Constitution.]”
Bill Jeffress, former DNR Director of Office Project Management and Permitting when Northern Dynasty became involved with Pebble back in 2003, continued this analysis: “My understanding about the complaint filed against DNR is that every one of these water rights, even temporary water rights, the plaintiffs consider as a ‘disposal’ of a state interest. [In that case]…they would be required to do public notice in the ‘best interest’ finding. But when the creators of the [Alaska] Constitution were framing the constitution, they knew there would be some of these everyday, run-of-the-mill permits…on temporary water use…it wasn’t something where you had total consumption, it was a recycle. The water is still basically in the same area. It’s not like we’re shipping it to south Los Angeles.
“These MLUPs issued to Pebble [Partnership/Project] are in the same category as temporary, routine permits,” Jeffress emphasized. The Pebble Project’s technical status with the State of Alaska at this point is as a mining claim with the rights to exploration, not as a mineral site development with rights to extract.
However, and this again is yet one more telling demonstration of how the immense, proposed Pebble copper/gold/molybdenum mine affects the entire state of Alaska, any reinterpretation of the state’s permitting process regarding water use can and will affect more than mining: “This has huge ramifications,” Jeffress stressed. “Not just for mining, but oil and gas, road construction, any type of activity where water is needed.” Steve Borell, Executive Director of the Alaska Miners Association, concurred:
“The outcome will definitely affect others… because it’s a principle, not just a mining issue per se. And when this issue is over, they [any opponent to this project] will be back again. They’ve been filing suit over water rights for years.”
All the controversy, debate, and years of published comments and analyses ultimately reveal how this one major proposed mining development hits home hard to almost every type of major resource business development within Alaska—a state dependent on its natural resources for economic security. What happens to Pebble, as the project continuously winds its way along a tortuous path towards a hopeful, positive conclusion, can set precedents throughout the state for years to come.
"When you have a ruling of constitutionality of the state issuing an exploration permit, it's not just limiting the dialogue to be about Pebble. If the ruling comes as unconstitutional, then it has far more reaching implications than for just Pebble," stressed Mike Heatwole, Vice President of Public Affairs for the Pebble Partnership. But additional legal activity has already redirected the original court decision: "There have been a lot of motions and decisions rendered in this case that was first filed in August of last year, and we expect several more to be discussed before trial begins," he continued. "Including our motion for reconsideration."
Much can still happen in these few short months before trial, but from the Pebble Partnership viewpoint, "It’s important to stress that there's not a development plan on the table yet. We're taking time for a viable plan, and just try to keep our heads down and do our work," Heatwole concluded.
Kathryn G. Arlen is a member of the Alaska Miners Association, freelance writer, and communication consultant. She can be reached at: firstname.lastname@example.org.