Superior court weighs in on Pebble case

On July 9 Alaska's Superior Court entered an order in a case now pending against the state's Department of Natural Resources concerning the propriety of a series of multiple land use permits and temporary water rights permits that had been issued to the Pebble Limited Partnership and its predecessors in conjunction with the exploration of the so-called Pebble deposit in southwest Alaska. I am counsel of record for an intervenor in this matter; therefore, it ill-behooves me to articulate my customary incisive opinions.

Generally, the order was responsive to motions to dismiss the case premised on the conformance of the statutes and regulations followed by the Alaska Department of Natural Resources to the requirements of the Alaska Constitution. Constitutional challenges come in two flavors. A statute is either "constitutional" or not; that is to say, the court is called upon to determine whether it is a permissible implementation of the language and intent of a specific provision of the state constitution. In the alternative, having found that a statute (or regulation) is "constitutional" the court then inquires as to whether is it "constitutional, as applied."

In this case, the court found the statutes and regulations to be constitutional; however, it ruled that an evidentiary proceeding will be required to determine whether they are constitutional, as applied. Since there have been permits issued to the project under these statutes and regulations for roughly 20 years, the evidentiary burden will be substantial. Trial is scheduled to begin on December 6.

The court also determined that the intervenors, including the Alaska Miners Association, the Council of Alaska Producers and the Resource Development Council for Alaska, as well as others, should be dismissed from the case because any further inquiry into the matter would be specific to the Pebble Project. AMA, CAP and RDC have filed objections to their dismissal and have filed motions asking the court to reconsider its order.

The implications of this case have the potential to be far-reaching. Questions concerning the integrity of the regulatory process reach every mining operation in the State. By extension, they could reach every resource development project. One could hypothesize that this precedent could reach every administrative decision. The Court made it clear that the permits associated with the Pebble Project were of special concern because of the unique nature of the project; however, in the absence of unequivocal sideboards, all permittees are at risk. The legal phrase for such a concern is "reductio ad absurdum." Taking the ruling to its absurd extreme, would it work?

Our system honors our judiciary. The courts are our last safeguard against all manner of evils. The courts are the impermeable barrier between order and chaos. Judges, in turn, are called upon to perform some of the most difficult jobs on the face of the earth, because on a daily basis they must choose among contestants, making some winners and others losers. Virtually all of us intuitively recognize the wisdom of the system, although we may be disappointed in specific results. In this case at least, there will be an opportunity to appeal.

Without presuming to second guess how the court may choose to rule on the pending applications for reconsideration, it is suggested that to ask a court to reconsider its opinion is analogous to asking a doctor for a second opinion. The doctor says "You are sick," and you say, "I would like a second opinion before we proceed with the treatment." The same doctor, in turn, says, "Alright, I still think you are sick."

Whether the court will persist in its determination that the AMA, CAP and RDC should not be parties in the case is unknown at this time. These entities may still have the opportunity to file briefs as "amicus," or friends of the court even if they are not parties as the case proceeds. Absent some intervening ruling to the contrary, the matter will go to trial before Christmas. Thereafter, the court will determine whether the state has properly fulfilled its obligations.

Almost indubitably, the matter will wind up in the Alaska Supreme Court for review. The unsuccessful parties in this matter will have every motivation to challenge the court's final decision. Stay tuned. There is more to come.