Superior Court hands down Pebble ruling

In an exhaustive 154-page decision disposing of all claims against the State of Alaska, Superior Court Judge Eric A. Aarseth found that, in conjunction with the Pebble Project in Southwest Alaska, the State of Alaska's Miscellaneous Land Use Permit (MLUP) system, as administered, and the state's Temporary Water Use Permit (TWUP) program, as administered, did not violate the provisions of Article VIII of the Constitution of the State of Alaska.

In an earlier ruling Judge Aarseth had found that the two programs, essential to mineral exploration on state land, were constitutional on their face.

His earlier ruling, however, allowed plaintiffs to attempt to adduce evidence to show that the programs were unconstitutional as applied.

A two-week trial was held by the court during which testimony and other evidence was introduced on numerous questions relating to exploration activities at the Pebble Project. The court's opinion addresses each issue in turn, examines it comprehensively, and, in all cases determines that the allegations of the plaintiffs were not supported by the evidence.

One of the threshold questions raised by the plaintiffs was whether the MLUP and TWUP programs when applied to mineral exploration amounted to a disposal of state land. According to Judge Aarseth, "[t]he MLUPs and TWUPs issued by the State are revocable and do not amount to a disposal under Article VIII, Section 10 of the Alaska constitution."

Turning then to the permits themselves, Judge Aarseth found that the plaintiffs failed to prove that there were long-term or harmful environmental impacts from the exploration drilling operation at the Pebble Project. He found that there was no evidence of acid rock drainage from the drill holes; he found there was no evidence of acid rock drainage from the drill cuttings; he found there was no evidence of adverse environmental impacts from the discharge of drilling muds and fluids; he found that the water withdrawals necessary to support drilling operations were insignificant and temporary; he found no persuasive evidence that the water withdrawals had caused any actual harm at all.

Judge Aarseth found no persuasive evidence that the exploration drilling activities caused impacts to fish or fish habitat, either in terms of water quantity, water quality, water intake, or seismic activity associated with blasting. He found no significant evidence to conclude that the drilling activities at the Pebble Project had caused impacts to wildlife or wildlife habitat for caribou or any other resident animals.

He found no evidence of permanent, or long-term, environmental harm resulting from fuel spills. He found that there was no evidence that mineral exploration activities had caused significant and permanent impacts on vegetation. He found no evidence that exploration activities at the Pebble Project had impacted any archeological or cultural resources.

Judge Aarseth went on to rule that the permits associated with the Pebble Project did not unconstitutionally impinge on reasonable concurrent uses of the project area, as plaintiffs had alleged, because the permits did not provide for exclusive use of the area; that the drilling program and water withdrawals did not impact reasonable concurrent uses of water by fisheries; that the drilling program did not impact reasonable concurrent use of the indigenous wildlife resources; that the drilling program had not excluded hunting guides; and that the program did not impact subsistence users.

Although the opinion is long enough to discourage most readers, and technical enough to be less than an easy read for even the well-informed, it is hugely important. This decision does not address development permits, but it does constitute a playbook for all large exploration projects in the future in Alaska.

The state is administering the oversight of exploration programs correctly, and this decision is the proof. Future exploration operations in Alaska will vary from the existing guidelines at great risk.

When this matter is taken up by the Alaska Supreme Court, as indeed it will, the Supreme Court will have a strong foundation on which to build.

The Supreme Court, however, will necessarily be shorthanded when it considers this case on appeal because at least two of the five justices on the court must recuse themselves due to conflicts - Justice Dana Fabe is married to an attorney who works for counsel for the Pebble Partners and Justice Craig Stowers had this case before him while he was still on the Superior Court bench.

By the time this case is heard, and it is conceivable that there will be a vacancy on the court as well, due to the pending nomination of Justice Morgan Christen to the Ninth Circuit Court of Appeals.

It is perhaps too much to hope for, but the Supreme Court would be well-advised to simply embrace Judge Aarseth's excellent analysis and adopt his findings and conclusions as its own.