State attempted appeal of Pebble mine decision reads like an appeal from Pebble mine
The Dunleavy administration is attempting to appeal the Army Corps of Engineers rejection of the Pebble mine, doing so with a 59-page treatise that reads like something the Pebble mine would have been happy to write.
Coordination with the company is not out of the question, given that the Pebble promoters ghost-wrote letters to the Army Corps of Engineers for Gov. Mike Dunleavy, coached him on dealing with potential investors and praised Dunleavy aide Brett Huber as a “rockstar” for his mastery of the Pebble talking points.
Despite the big announcement from the Dunleavy administration about its Pebble appeal, the state is not eligible to file an administrative appeal of the Pebble mine rejection, only the Pebble mine can do that. Think of this as a state appeal for publicity.
The state claims that it should be able to file an appeal because it owns the land on which the Pebble mine would be located.
The state appeal was written for Attorney General Clyde “Ed” Sniffen by Ronald Opsahl, a Colorado attorney hired by the state in November who has strong opinions about “liberal courts” and “radical environmental groups.”
Endorsing Trump’s plans to reduce environmental regulations last year, Opsahl said it wouldn’t be enough: “Until Congress makes sweeping statutory reforms, liberal courts remain free to operate under the status quo that they have created.”
Opsahl, formerly with the Mountain States Legal Foundation, writes in the appeal that the state should be allowed to challenge the Pebble rejection because the state is an “affected party” under this regulation that says who is eligible.
“The state is the sovereign owner of the surface and mineral estates within the proposed project area, subject only to the state-issued mining claims held or controlled by PLP (Pebble Limited Partnership). Accordingly, the state is an ‘affected party’ entitled to appeal the permit denial,” Opsahl wrote.
No so fast. Either Opsahl didn’t read the federal regulations, not likely, or he prefers to ignore the details because the state does not meet the requirements to be an “affected party” under the federal rule.
The second half of the definition says a land owner can be an “affected party” and enter an appeal if it has “received an approved JD, (jurisdictional determination) permit denial, or has declined a proffered individual permit.”
In this case, the Corps of Engineers did not deny a permit to the state. It denied a permit to the Pebble mine.
The Corps of Engineers keeps the text of appeals secret while they are under review, so we don’t know what the Pebble Mine said in its version, but the state, given it filed an appeal for publicity, has released its complaint.
The state spends a lot of pages asserting its alleged qualifications to appeal and more pages objecting to the way the federal agency handled the so-called “compensatory mitigation.”
Still missing from the document is an admission from the Dunleavy administration about what secret deal it had with the Pebble mine.
The mine promoters told the Corps of Engineers that they would preserve 112,445 acres of state land near the mine site as “compensatory mitigation,” making up for lands that would be dug up to extract copper, gold, silver, molybdenum and other minerals 200 miles southwest of Anchorage.
The promise was not one that Pebble would make without backing from Dunleavy. There is plenty of evidence that Pebble enjoys the full support of the governor.
“The Koktuli Conservation Area will preserve 112,445 acres within the Koktuli River watershed and remove the threat of development from the protected areas,” Pebble promised the Corps.
In a Dunleavy administration meeting in early August, administration officials and Pebble representatives talked about limiting development on about 112,000 acres of state land to satisfy the Corps of Engineers.
The state mentions the 112,445 acres only once in its appeal in language that points to what was at least a secret handshake deal with Dunleavy.
“Despite the fact that the onerous compensatory mitigation requirement—if implemented—would necessitate the encumbrance of approximately 112,000 acres of state lands, the District (Army Corps of Engineers) did not involve the state in its review of the CMP (compensatory mitigation plan) and did not provide notice to the state that it decided to reject the CMP,” the state attorney wrote.
The state only learned about the rejection when the public did, the Colorado attorney wrote. But the public didn’t get a hint about the secret state agreement on the 112,445 acres until the Corps of Engineers announced its decision.
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