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Coeur Alaska, Goldbelt and the state have asked the federal 9th Circuit Court of Appeals to do a full review of its earlier decision to reject the Kensington gold mine waste disposal plan.
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Declining to join in that request was the U.S. Department of Justice, representing the U.S. Forest Service and Army Corps of Engineers. Those agencies were the target of a suit by Juneau-based Southeast Alaska Conservation Council challenging the use of Lower Slate Lake as a disposal site for mine tailings, the waste rock produced by the mining process. The mine, which is under construction, is about 45 miles north of downtown.
A three-judge panel of the 9th Circuit last spring rejected that disposal method, saying it wasn't allowed under the federal Clean Water Act.
Other parties in the case, including Kensington owner Coeur Alaska, its partner, Goldbelt, and the state, asked for a full review of the decision; the federal agencies that are the defendants did not.
"The federal defendants' response is going to make it very, very difficult to get a rehearing," said Buck Lindekugel, conservation director and staff attorney for SEACC.
"They didn't ask for a rehearing on its merits. They didn't ask for an "en banc" review," he said.
An "en banc" review means the full 11 judges in the 9th Circuit would review the prior ruling.
Lindekugel said he was "pretty happy" with the federal position and what it meant for prospects for a final victory.
Coeur spokesman Tim Ebersole did not return a phone call for comment Tuesday, but an attorney with the state Department of Law, which supports the lake tailings disposal method, reached a similar conclusion about the effect of the federal agencies' stance.
"The decision by the federal government to pursue only such a narrow issue at this stage is troubling in that it may indicate that they are not prepared to seek further review of the panel decision in the U.S. Supreme Court," said Cameron Leonard, a deputy attorney general, in a statement provided by the governor's office.
A number of mine supporters, including the Alaska Legislature in a resolution, have encouraged Coeur Alaska to pursue legal approval of the mine all the way to Supreme Court if necessary.
Legal observers said it could be as soon as a few weeks when the 9th Circuit decides whether to hear Coeur's and other appeals.