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The state and Coeur d'Alene Mines Corp. have appealed to the U.S. Supreme Court asking to have permits for a previous Kensington gold mine tailings plan reinstated.
Environmental groups say they will challenge that appeal.
Coeur d'Alene and Coeur Alaska, the subsidiary that is working to open Kensington, declined to comment for this story.
The mine received permits from the U.S. Corps of Engineers to dump tailings into nearby Lower Slate Lake, north of Berners Bay. Tailings are the waste rock after metal is extracted from the ore.
Those permits were invalidated in May by the 9th U.S. Circuit Court of Appeals in a suit brought by the Southeast Alaska Conservation Council, the Sierra Club and Lynn Canal Conservation, which charged that the tailings plan violated the Clean Water Act.
On Jan. 25, Coeur submitted a revised plan to the U.S. Army Corps of Engineers and the U.S. Forest Service in which tailings would be converted into a paste and stored near Comet Beach, on Lynn Canal. On the same day, it submitted the appeal with the state to the high court.
"I think they're hedging their bets," said Tom Waldo, a lawyer for Earthjustice, which represents the plaintiffs. "They're pursuing a new plan on the one hand, and they're pursuing the litigation on the other."
Environmental groups have been working with Coeur on the new paste tailings plan. And so far, they haven't been displeased with it.
"It is unfortunate that Coeur won't let go of its proposal to use a lake as a waste dump when its paste tailings plan is the best, and fastest, option for getting this mine into production in an environmentally sound way," said Rob Cadmus, SEACC's mining organizer.
Still, plaintiffs said they were not surprised that the appeal was filed.
"They never gave up their legal rights," Cadmus said. "And neither did we."
SEACC has 30 days to file an appeal, though it may file for an extension.
Juneau Mayor Bruce Botelho, who has been involved in some negotiations regarding the mine, also said that the mine was hedging its bets: He expected that if the new plan were approved, this petition to the high court would become superfluous.
The state filed the appeal because it said the 9th Circuit decision wasn't specific to the Kensington mine, and would make it too difficult for other mines to get permits.
"The reasoning of the court wasn't specific to Kensington, so any mine that had to discharge tailings into waters of the U.S. would be subject to the same rationale," said Tom Crafford, director of Mining, Lands and Water.
But Waldo, plaintiffs' lawyer, said this case wouldn't affect other mines. No other mine in Alaska can dump tailings into U.S. waters, he said.
That has been a rallying cry for SEACC since the Kensington suit began.
The legal question in the 9th Circuit was whether mine tailings qualify as "fill material" or "effluents." The latter, as in industrial or municipal pollution, are regulated by the Environmental Protection Agency. An EPA regulation forbids dumping effluents from a froth flotation mill, which is what Kensington has built, in U.S. waters. Fill material, however, is regulated by the U.S. Army Corps of Engineers, and its regulatory definition includes mine tailings.
Kensington had permits from the Corps of Engineers with agreement from the Environmental Protection Agency. Coeur and the state say that the appeals court should have deferred to the federal agencies' original interpretation of the law.
The federal agencies have not joined the state and Coeur in the appeal to the high court. An attorney for the state said that Goldbelt, a Native corporation based in Juneau, will file a memo supporting it.
In 2006, the Supreme Court received 8,857 requests for review from lower courts. Of those, 78 cases were argued before the court.
Contact reporter Kate Golden at 523-2276 or firstname.lastname@example.org.