By Naomi Klouda
When Gov. Sean Parnell’s administration concluded that PacRim Coal’s proposed mine through 11 miles of salmon stream is not unsuitable, those who fought to protect the river were only temporarily stunned.
“This is just a bump on the road. We’re not giving up,” said Bobbi Burnett, secretary-treasurer of the Chuitna Citizen’s Coalition. “The salmon are more important. They can last hundreds of thousands of years, but the coal will be done in 25 years.”
In the two weeks since Gov. Parnell and the Alaska Department of Natural Resources dismissed an unsuitable lands petition filed by local citizens, the public awareness campaign on behalf of the river may have finally reached mainstream Alaskans.
Gov. Parnell is being called to the mat in a flood of mail to his office and in a public war waged through a letters campaign. With the decision Chuitna has achieved name recognition closer to par with the proposed Pebble Mine, its proponents hope. In its obscure but central location 45 miles west of Anchorage, the governor’s rejection has helped wake a matter that rested uncomfortably under the rug. Or, in this case, under the rich peat moss of a fertile coal bed that also cuts through a rich, intact salmon stream featuring five healthy species’ runs.
“Gov. Parnell should be ashamed of himself,” said Judy Heilman, president of the Chuitna Citizens Coalition, whose admonishment of the state’s position made it into nearly every newspaper in the state. “We trusted the governor when he said his administration would never trade one resource for another. But now it’s clear. The governor is willing to trade our salmon and fishing jobs in exchange for coal to power China.”
“Initiatives and petitions are important, lawful expressions of citizens’ views. Still, the state permitting process is the place where all individual Alaskans and local communities can express their support or opposition to a project. Alaska has one of the most extensive permitting processes designed to assure public input counts and scientific evidence is considered,” said Sharon Leighow, press secretary for Gov. Parnell’s office.
“Local initiatives or petitions must be turned away if they attempt to favor narrow slices of environmental or industry interests over all Alaskans’ interests,” Leighow said. “Where the resources of our state belong to all the people, the governor remains committed to assuring every Alaskan’s voice is heard in a lawful permitting process.”
Another kink in the coal mine’s future is its role raising funds for the Alaska Mental Health Trust
Fund. In the 109-page report in which Department of Natural Resources Commissioner Dan Sullivan explains the state’s position, he points out the mental health trust. The state is mandated to develop resources for the benefit of the fund through designated lands managed for the trust.
“They need the money from this development to fund their programs. This has absolutely nothing to do with whether a river is unsuitable for mining,” Burnett said.
Alaska law allows for several citizen tools to be used in giving responses or posing arguments against certain resource extractions. Lawsuits against the government are a last resort, said Bob Shavelson, executive director of Cook Inletkeeper.
Nearly two years ago, Inletkeeper, with the Chuitna coalition, filed the unsuitable lands petition through Trustees for Alaska. In the meantime, Beluga residents met with the governor to express their fears of toxins entering the air and water from a proposed 300-trillion-ton coal-extraction project. They talked to the governor about biologist findings contending it isn’t possible to displace a salmon stream and then put it back together again without killing off fish.
Another citizen tool was put into place when Kenai Peninsula Borough Assemblyman Bill Smith successfully pushed borough legislation through to protect 2,400 anadromous salmon streams — including the Chuit (its Athabascan Indian name is the Chuit, with “na” meaning river) — by stipulating that all work must be set back 50 feet from the river.
In light of the Parnell administration’s challenge to citizen initiatives, appeals to established environmental protections such as the unsuitable mines petition, and personal appeals, a backlash against this administration is afoot.
“People are unhappy,” Shavelson said. “When you talk to Alaskans they care about wild, healthy, Alaska salmon. What you’re seeing is a groundswell in response to the governor going back on his word. You don’t say one thing to get elected, and then do another.”
DNR is now meeting with PacRim Coal to go over preliminary environmental permitting, which PacRim officials say could be completed in about nine months, according to the corporation’s website. That still leaves several years of more permitting related to building facilities necessary for processing, storing and loading coal for shipment.
When it comes to later stages in the permitting process, such as when PacRim submits its proposal for mining through the Chuit River, the borough’s 50-foot setback rule could be used to challenge the state.
When the Chuitna Coalition made the assertion that restoring the river to its original state for the five native species of salmon couldn’t possibly be done after 11 miles of mining, the state’s response was that “this isn’t the time to talk about reclaiming the stream,” Burnett said. “They said that comes later, in the stage of permitting when they discuss the process they intend to use.”
The status quo in Parnell administration policies is to assert state rights over local government rights. This calls into question whether the citizens’ group can point to the borough 50-foot setback rule even later on in the permitting process, or whether at that time, it would be trumped by state law.
Attorney Scott Kendall, with the firm of Holmes, Weddle and Barcott, said a whole body of legal precedent can be called up to argue in favor of borough rights. He is about to defend the Lake and Peninsula Borough’s voter-enacted initiative outlawing large-scale mines that harm salmon streams. It is aimed not at stopping the Pebble Partnership from developing its copper-gold-molybdenum mine, but at forcing its work away from salmon streams.
“Boroughs are legally bound to defend their laws. Sponsors of initiatives also have an interest so we will participate in the lawsuit,” Kendell said. “Basically the state kicked the can down the road, (in not deciding the legality of the Pebble ballot initiative,) and said, ‘If this voter initiative gets enacted, we’ll decide it based on other issues.’ Then, now, the state decides to do a lawsuit.”
A whole body of borough protections is regularly used in Alaska where borough governments were granted strong constitutional powers, he added. The North Slope Borough has hundreds of pages of laws relating to oil and gas development. Anchorage has restrictions on areas deemed inappropriate for what can be built next to a school or a military base, he said. Juneau has a mining code established many decades ago, with amendments, for its resources. Fairbanks’ North Star Borough collects mining taxes and imposes permitting requirements.
The October Pebble initiative adds to an established Lake and Peninsula Borough law enacted 25 years ago.
“This law states you have to have a borough permit. It added some requirements to that, saying if you’re doing a large-scale mine, you can’t destroy salmon habitat,” Kendell said. “This idea that the borough has a role in deciding resource developments is not new. Local communities can do this. Local communities have often done this.”
Harnessing laws on the books
To make its appeal for stopping PacRim from mining coal through the prolific Chuit River, Cook Inletkeeper and the Chuitna Citizens Coalition used a legal tool available through state law. They applied a provision for citizens and groups to petition the government, arguing that a particular area should be deemed unsuitable. The section is outlined in the Alaska Surface Coal Mining Control and Reclamation Act.
“There is a section specifically written that states if an area is unsuitable for mining and cannot be reclaimed to its pre-mining values, then petitioners can ask to have it removed from the mining plan,” Shavelson said. “It was only to stop mining through a salmon stream.”
A second tool, the direct permitting process, has built-in chances for public testimony. This gives power to citizens to object on specific grounds, and their testimony is written into the public record for officials to take into account.
“There are a host of rules citizens can weigh in on and seek to challenge a project, but the hurdles are very high,” Shavelson said.
The path of last resort, when citizens feel their concerns were ignored as they used the available process, is a lawsuit, which amounts to high-stakes gambling, as Alaska has a loser-pay law.
“If you lose you may be paying the other side’s legal fees. That has a chilling effect on anyone’s desire to get into that arena,” Shavelson said.
Gov. Frank Murkowski, during his term, successfully pushed legislation that overturned the “public interest litigant exemption.”
This sets Alaska apart as the only state to do so. The general rule in other states is that each side pays its own fees, Shavelson said.
Rep. Les Gara, who in 2001-02 argued against the changes that would hold public litigants responsible, said it took power away from average citizens.
“If you were standing up against your government, if you felt your fishing rights were trampled, under the old law you could challenge government action and they couldn’t penalize you,” Gara said. “Now if you stand up against your government and lose on a technicality, you could owe tens of thousands of dollars.”
This shift gave corporations an advantage. The state will be in the position of arguing a corporation’s case when citizen groups come forth to stop a project. As in the Chuitna project, DNR ends up protecting PacRim’s right to pursue the permitting because the state is defending its own rights to oversee mines. It argues in favor of the Pebble Project’s right to move forward despite how voters decided.
“The laws favor big corporations right now. There has been a shift toward corporate allegiance in this state. You have to either shut up or risk your family’s income to fight these cases,” Gara said. “The mines we have right now are largely responsible. They don’t kill fish. They are done responsibly. But all of a sudden now we have two mines that threaten world-class salmon runs.”
Even Cook Inletkeeper, in the past 16 years, has launched fewer than 10 lawsuits. Shavelson said it isn’t the best option.
“It’s not common. It’s expensive, it’s risky and it doesn’t have great prospects,” Shavelson said. “Corporations have so badly killed the playing field. They’ve captured the executive and legislative branches, and they are fast on the way to capturing the judicial branch.”
Anders Gustafson, executive director of the Renewable Resources Coalition active in the Pebble initiative, said the state doesn’t seem to sympathize when local governments want a say about what happens in their neighborhoods.
“The surprising thing is you have a governor and his staff who have been vehemently against federal intervention, yet they are willing to intervene in a small area about a matter that relates to them,” he said.
“As for what the governor’s legacy will be, his background has clearly been to act in the interests of large corporations. There’s a bit of conflict with people here, people who see salmon as such a big part of their lives. Still, he has a chance to do things right. I am an optimist.”
What’s new in a century-old Alaska debate about pros and cons of development is that it has become a “salmon versus mining thing,” Gufstafson said. “Local governments in Alaska are more powerful than many others. There’s a descending order — KPB (Kenai Peninsula Borough) has authority over land-use planning. They have the power to say what’s appropriate next to a school, what’s appropriate near salmon streams.”
Shavelson argues that citizens should take action when their government cannot or won’t. In the recent rounds of public meetings initiated by DNR to make permitting more efficient, there is reason for people to feel nervous.
“To make more-efficient permitting, they may be rolling back health and safety protections. Permitting is a dead-end street. We know all these bureaucrats are going to rubber stamp their permits,” Shavelson said. “In streamlining permits, they are making the process even easier. The things we’re doing are trying to forestall that process. We’d love to save the state the money. We can do this by asking whether a project should move forward. Instead, they ask, ‘How should this project be developed?’”
In the public backlash against state permitting practices, as evidenced at Chuitna and Pebble, there’s a sign that much of the mood is spurred by a low spirit of expectations on the part of individuals.
“We are seeing the state isn’t shutting down bad ideas before they progress,” Shavelson said.
The arsenal of tools available to citizens and groups hasn’t been exhausted, though these same tools may look fairly useless at a certain low point, Gustufson said.
“We still have an ability to organize as citizens. That’s kind of a call to arms when you get down to the wire. We pay to play and then fight for what we believe in,” he said. “We’ve gotten a lot of experience the last few years fighting the largest mining companies on the planet. These corporations use our public processes in a fashion against us. It’s up to citizens to put their foot down.”
The idea isn’t to shut down all mining. It’s to eliminate risk factors, both Shavelson and Gustufson say.