My Turn: The law, not SEACC, blocks Kensington

Posted: Wednesday, September 19, 2007

I really have tried to keep my mouth shut on the Kensington Mine/Southeast Alaska Conservation Council issue (those who know me will doubt that, but it's true). But the letters and My Turns and editorials and continuing stream of advertisements finally got to me. I do not oppose the mine. I oppose the misinformation being thrown at citizens. So let me say this slowly so nobody misses it: SEACC has no power to block the Kensington Mine.

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Article after article says SEACC should stop blocking the mine, or Kensington and SEACC should get together and "negotiate." Negotiate what? The only thing SEACC can do - the only thing - is to ask the courts to determine what is legal and illegal. That's it! All they can do is ask the judiciary to do its job, which is to interpret the law. Legislators write the law, the courts interpret it, and the executive branch carries it out. That's the way our system works. And (surprise!) sometimes people in government have political motivations - so we have a court system to check and balance them. If you think some government bureaucrat is putting his own spin on the law, you can go ask the court to decide. That's a good thing!

Here's the short version of the legal issue. The Kensington Mine is being built. There is no question about that. The question is what to do with the rock Coeur Alaska digs out of the mine. Only about half of it can be stuffed back in the ground. Coeur has to figure out what to do with the rest. In 1997 Coeur/Kensington got a permit to pile it up ("dry stack") and eventually cover it over with vegetation. But in 2004, it proposed a cheaper method of dumping it into Lower Slate Lake. The regulators (Army Corps of Engineers) said OK. Trouble is, the law says you can't do that- or maybe it does. It depends on whether you call mine waste "fill" or "effluents."

Under the Clean Water Act, "effluents" (or pollutants) are regulated more strictly than "fill." In 2002, the Corps of Engineers decided to change the definition of mine waste rock from the strictly regulated "effluent" to the less regulated "fill." Then it gave Kensington a permit to dump its waste rock (now defined as "fill"), into Lower Slate Lake. SEACC asked the courts to rule on whether that re-interpretation was consistent with the Clean Water Act. The court said it wasn't. The judges ruled that, "The Corps violated the Clean Water Act by issuing a permit to Coeur Alaska for discharges of slurry from the froth-flotation mill at the Kensington Gold Mine." So the permit was revoked. You can read the decision at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/78D39A1D1656DDEE882572E2007E347D/$file/0635679.pdf?openelement.

Nothing SEACC and Kensington can "negotiate" will change the ruling of the court. As of May 22, that is the law. If SEACC all of a sudden agreed that dumping in Slate Lake was fine - it wouldn't change a thing. It's still illegal. The court's ruling can be appealed, and maybe a higher court will change it or maybe it won't. But our democratic system says the courts decide - not the bureaucrats, not the politicians, and not some nonprofit organization.

You're being told that SEACC should stop blocking the mine. They're not. The law is.

You are told SEACC has all this power. It doesn't. The only power SEACC has is to ask the courts to review whether a permit is legal. Nothing else. You and I have that same right to petition the courts.

The illusion of SEACC power is supported by both sides. Kensington wants you to believe SEACC is the demon blocking jobs for Juneau. SEACC likes being seen as the gatekeeper. It likes the image that Kensington must come to them for approval. But I'm sorry, it's just not true. Kensington needs to find a legal way to proceed. And it doesn't need SEACC's permission to do that. That's not up to SEACC; it's up to Kensington.

• Jonathan Anderson teaches government at the University of Alaska Southeast and is a District 2 Juneau Assembly member.



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