My turn: SEACC victory likely to be overturned

Posted: Friday, July 11, 2008

A few months ago, I predicted on this page that the U.S. Supreme Court wouldn't hear Southeast Alaska Conservation Council's lawsuit against the Kensington Mine. Was I ever wrong - and that's good. Now, if I have an ounce of credibility left at reading judicial tealeaves, I will venture that Coeur has all but won its case.

Here's what Juneau people should know. It takes four justices of the Supreme Court to accept a case for review - and justices almost never vote for review unless they think a decision should be reversed. It only takes five Justices to reverse and the court reverses 90 percent of 9th U.S. Circuit Court of Appeals cases it hears. In addition, the court almost never hears a case where the federal government is the primary party and argues against review - as happened here. Something is going on, and that something is an almost certain reversal of SEACC's victory. That's a very good thing.

It's a good thing because SEACC never really had a point to make. They never advocated anything to help the environment - in fact what they pushed was environmentally detrimental. They just wanted to stop a mine and get a win. After all, without winning, SEACC is nothing.

SEACC's legal case argued that a mine couldn't convert "waters of the United States" directly into a tailings disposal facility. Waters of the United States include lakes and wetlands. And tailings facilities include dry tailings and tailings ponds. Of course SEACC's phony public façade was that dry tailings on wetlands were OK - even while their lawyers were making the opposite case in court. What they really wanted was the power to say yea or nay to mining proposals. Baloney. They aren't the government.

SEACC dishonestly claimed to the people of Juneau and Alaska that Coeur's proposal was reversal of past practice - a change that allowed a mine to just dump waste into a pristine lake with no controls and a throwback to the bad old days. The Supreme Court heard otherwise. Both Red Dog and Fort Knox had been permitted to do what SEACC said was never done - convert waters of the United States into a tailings pond. Pogo, Greens Creek, and Rock Creek had avoided the problem by carefully converting the waters of the United States into "uplands" before placing their tailings. This was expensive, but it avoided the phony legal pitfall that SEACC had raised. Coeur could have done the same thing at Lower Slate Lake. In the end, SEACC's case was really just about raising mining company costs and promoting SEACC.

While I may disparage SEACC's crusade against Kensington, Coeur has not. That, apparently, would be too messy. Or they may think the facts are too complicated for ordinary people to understand. I don't think they are. Most people can appreciate the difference between a "mount garbage" and a facility that looks like a lake. I think it's worth knowing that a water discharge permit with stringent standards was required and issued for discharge from the treatment facility. The idea that Coeur was just dumping waste shouldn't have been allowed to stand.

And people really needed to know that most of the damage of construction of the Lower Slate Lake facility has already taken place. SEACC posted the pictures on its Web page, but Coeur's lawyers argued to the 9th Circuit that area was all but pristine. One would have expected the opposite. What sense is there in digging up a new area for the paste tailings when the Slate Lake area has already been clear-cut and dug up?

In the end, Coeur has a great case to make for its Lower Slate Lake facility. If, as expected, the Supreme Court upholds the permit, the result will be good for the mine and good for the environment. Juneau needs to know this. We shouldn't be left with the idea that the Supreme Court is ramming something bad down our throats.

But let me make one last prediction. Coeur won't make its case to the public. Too bad. The Supreme Court isn't going to do anything more than uphold sensible law and worthy past practice. This is something Juneau should support.

• Eric Twelker is a Juneau attorney and geologist.

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