Beware of Zinkes Bearing Gifts


Proposed King Cove-Cold By Road

Proposed King Cove-Cold By Road

Secretary of the Interior Ryan Zinke at first appears to have been stricken with an attack of reasonableness. How else to explain his decision to re-think allowing the Pebble Mine to go forward?

But there is less or perhaps more here then meets the eye.

To understand why we need to talk about American law for a while. One of the keystones of American jurisprudence is the doctrine of stare decisis: “it stands decided.” Stare decisis says that once a legal issue is settled, it’s not going to be revisited or changed except for a fairly narrow list of good reasons. Society, government and business need stability and predictability to exist. Stare decisis helps provide that.

The Ninth Circuit Court of Appeals wasn’t being revolutionary when it held that the Bush Administration could not by executive fiat reverse the Roadless Rule. The Clinton Administration had played by the regulatory rules and reached the decision that the Roadless Rule – prohibiting the construction of new road on federal lands except for a narrow list of reasons – should be adopted. The Bush Administration tried to graft a special exception on the Roadless Rule for Tongass National Forest. The Ninth Circuit, after a tediously long and complex fight, ultimately shot the Tongass Exemption down because it violated without adequate explanation the settled decision made back in 2001. The Village of Kake decision was important enough that WC actually wrote a blog post on it.

There is an administrative decision concluding that Pebble Mine was too dangerous and should not be built. True, it was a proposed decision and not a final decision. But the determinations and the science behind that proposed determination were very clear. Certainly clear enough to invite a legal challenge to Secretary Zinke’s proposal to allow Pebble Mine to go ahead. And strong enough to tie the development of the mine in knots for years.

WC suggests it was that reality, as much as the hue and cry by Alaskans, that led Secretary Zinke his attempted withdrawal of that proposed determination. The Secretary is spinning the facts to make himself look like a good guy, for paying attention to the public objections to the Mine. Zinke hasn’t really reconsidered. He still wants Pebble to go forward. He was just forced to make a strategic withdrawal (sorry) from his initial position because it couldn’t be successful in the short term. WC hopes you didn’t think that Secretary Zinke had awoken one morning and discovered he was a conservationist.

The byzantine land swap/King Cove road deal was structured the way it was in an attempt to evade stare decisis and the implications of the Village of Kake decision. There’s a Record of Decision concluding that the King Cove road should not be built. Secretary Zinke had no evidence to rebut that final decision. Instead, he instituted a land swap that conveyed the land for the King Cove road to the Village, in exchange for village land elsewhere. It’s an end run around the law. Does the Secretary of the Interior to make and end run like that? To give away wildlife refuge land that’s habitat for threated species? Probably not, but that will be the for the courts to decide. King Cove’s road will be in litigation for a while.

It was the Roman poet Virgil who cautioned us to “Beware of Greeks bearing gifts, “Timeo Danaos et dona ferentes.1 WC urges readers to be wary of Zinkes – and Trumps – bearing gifts as well.

 

 


  1.  Aeneid (II, 49). 
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