Alaska mine wins a round in legal battle

An Anchorage judge gave little credence to arguments by a Nome citizens' group that construction of Rock Creek gold mine should be halted, decisively ruling in favor of developer NovaGold Resources. After a hearing in Alaska District Court June 7, Judge Ralph Beistline made his decision the following day. Bering Strait Citizens For Responsible Resource Development had requested an injunction to protect the area's wetlands.

The plaintiffs argued that the U.S. Army Corps of Engineers' 404 permit authorizing some of Rock Creek's construction activities was issued in violation of the Clean Water Act and the National Environmental Policy Act. Vancouver-based NovaGold's subsidiary at Rock Creek, Alaska Gold, intervened in the case as a defendant. Considering the request for an injunction, Judge Beistline had to decide whether the plaintiffs' case was likely to succeed on its merits, and to balance potential hardships to the plaintiffs, defendants and the public.

The parties agreed that Rock Creek is located in "mining country", a part of Alaska that has a rich history of mining, Judge Beistline noted in his ruling. Much of the land on which the mining is proposed to take place was previously mined and left "scarred" by mining activity, he added. In addition, the wetlands that are the subject of the dispute are surrounded by vast areas of pristine wetland that will not be impacted by the Rock Creek project, the judge wrote.

Before starting construction, Alaska Gold "went to great lengths to publicize its intentions and to obtain the support of the local community, two Native organizations, as well as state and federal agencies," Judge Beistline wrote. "As a result, there is considerable public support for this project and a realistic hope for an economic boon to the community. This is not, therefore, a situation where a mining operation is proposed in an otherwise pristine wilderness amongst an unsuspecting public," he added.

The defendants have complied with the law and proceeded in a manner that is sensitive to the environment, Judge Beistline wrote. The Corps' issuance of a 404 permit was not "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law," he decided. "Considerable time, effort and expense was incurred by AGC (Alaska Gold) to minimize the environmental impact of its mining operation. Additionally, reasonable alternatives were considered by both the Corps and AGC," the judge noted. "Moreover, if the project proceeds as planned, it is likely that much of the land involved will be left in a far better condition than it was when the project began."

One of the plaintiffs' objections was that the Corps relied on an Environmental Assessment rather than an Environmental Impact Statement, which would have been lengthier and more detailed. The plaintiffs also argued that the draft EA was not widely distributed. The judge found that the EA took a "hard look" at the potential environmental impact of the project and that the draft EA was distributed to the agencies involved and publicized on the web. The plaintiffs responded to it and it was the subject of considerable discussion, the judge added.

Judge: no secrets or efforts to conceal plans

Nome residents heard about the EA via public meetings, newspaper articles, radio interviews and mailings. "There were no secrets and certainly no effort to conceal AGC's plans for mining or the methods intended to be used," the judge wrote. "Furthermore, it is very unlikely that any more study, time or discussion would have changed the parties' views with regard to this project or the decision to issue the permit." The text highlighting was in the judge's ruling.

Another reason why the lawsuit had little merit was because it was filed after much of the construction had already taken place, the judge wrote. It was already too late to prevent most of the harm to wetlands that was going to occur. "An injunction at this time would therefore result in much greater harm to AGC and the citizenry supporting the mining project than to any remaining wetlands or environmental concerns," Judge Beistline decided.

"We are pleased to have this issue behind us," said Doug Nicholson, Alaska Gold's general manager. "As acknowledged by the court, this project will bring significant economic benefits to the community of Nome. Construction at Rock Creek is progressing well. The truck shop, reagent building, leach train and steel superstructure on the mill building are up. Work is continuing on piping and electrical inside the buildings. We continue to assemble our operations team and are working diligently to achieve our production target of Q3-2007, with full commercial production by year end."

The case may not be over yet, though, as it is "more than likely" that the plaintiffs will appeal to the 9th Circuit Court, attorney Victoria Clark with Trustees for Alaska told Mining News. The 9th Circuit is the same court that overturned the district court's ruling that upheld the Corps' 404 permit for Kensington mine in Southeast Alaska. Trustees for Alaska is a non-profit organization that provides its services pro bono to the Nome residents it represents.