Northern Dynasty, the sole remaining partner in the Pebble Limited Partnership, had one of the worst weeks in court that a company can have.
First, it took a blow when the Ninth Circuit Court of Appeals, in a memorandum decision, sustained the trial court’s dismissal of its claim that the Environmental Protection Agency had wrongfully ruled against it. Because, as the Ninth Circuit and the U.S District Court concluded, the EPA had not yet actually ruled against it. Understand that a memorandum decision – one that isn’t worth the bother of being formally published and serving as precedent – is the Ninth Circuit’s way of telling Pebble to stop wasting the court’s time.
That was pretty bad, but Friday was worse. The Alaska Supreme Court ruled against Pebble in two separate cases.
A coalition of Alaska Native village and corporations, Nunamta Aulukestai, together with Vic Fisher and Bella Hammon, had sued the State of Alaska, alleging that the State of Alaska Department of Natural Resources had improperly issued miscellaneous land use permits (“MLUPs”) allowing Pebble to perform vast amounts of exploration without first complying with Alaska Constitutional requirements for a public process. Pebble intervened, making itself a party. Numamta lost in the trial court, and appealed. The Alaska Supreme Court reversed the trial court, finding that Numamta was right and the State of Alaska and Pebble wrong. Exploration on the scale Pebble was performing required a formal permitting process. That makes Pebble’s existing permits void; it makes the cost of further exploration that much higher.
The whole business turned on whether the MLUPs were truly revocable. The Alaska Supreme Court thought that leaving miles of holes in the ground, capped and uncapped, some it with casing, was pretty irrevocable. Ditto hundreds of dynamite blasts for seismic work. The court also thought that since Pebble paid the permit fees that paid the wages of the State employees who decided whether or not to revoke the MLUPs, and since termination of the permits would also terminate their jobs, you could be skeptical that permits would get revoked in the real world. That’s right, reality triumphed.
Pebble’s troubles didn’t end there. In a related case, Pebble was seeking to recover its attorneys’ fees in the Numamta case. The trial court had determined that Pebble was entitled to force Numamta and its lawyers, Trustees for Alaska, to disclose who had funded the lawsuit. While Pebble claimed it wanted show that Numamta had an economic incentive to bring the lawsuit, and therefore didn’t qualify for an exemption from attorneys’ fees, most observers thought the real purposes were to intimidate the conservation movement. The decision in the first case changed who was the prevailing party, the winner. But the Alaska Supreme Court didn’t stop there. It also held that the while business of deciding “economic incentive” was narrow and specific to the facts of the case, that Pebble had no right to try and force disclosure of the folks who had funded the lawsuit, Numamta and the folks Pebble was trying to intimidate, Alaska Conservation Foundation1 and Trustees for Alaska, couldn’t be forced to make the disclosures. Pebble and the State of Alaska get to pay Numamta’s, Trustees’ and Alaska Conservation Foundation’s actual reasonable attorneys’ fees.
Also back on Thursday, Pebble was arguing to the U.S. District Court that the Environmental Protection Agency has unfairly listened to environmental groups and not just Pebble. For WC, the claim doesn’t have any more merit than the three cases Pebble has lost this week.
It’s almost as if Pebble was a giant, multi-national corporation trying to force its will on Alaska. It’s almost as if Pebble had the State of Alaska in its pocket, as if the State cared more about Pebble and its partners than the impact of a ginormous mine on renewable resources, subsistence and the people who live there.
Do you think?
Anyway, that was Pebble’s really bad, terrible, awful week. Here’s <clink> to many more.
- In the interests of full disclosure, WC is a member of the Board of Trustees of Alaska Conservation Foundation and donates money to ACF and to Trustees for Alaska. ↩