My Turn: SEACC won't decide what's feasible

Posted: Tuesday, October 02, 2007

A while back I wrote to suggest a solution to the Kensington mess - the legal mess, that is ("Solving the Kensington dilemma," Sept. 2).

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I suggested that Coeur Alaska just follow the 9th U.S. Circuit Court of Appeals' interpretation of the Clean Water Act and prepare Lower Slate Lake the same way it would prepare an area for dry tailings. I said, let's get on with it.

On Sept. 17, Mark Rorick, chairman of the Sierra Club's Juneau chapter, wrote to say that I had raised some important points. But he then proceeded to quibble with whether my proposal to allow Coeur to drain and fill the lake with tailings was technically feasible. Huh?

My first point was that Juneau residents should understand, and never lose sight of, the fact the Southeast Alaska Conservation Council's lawsuit is based on a niggling legal technicality. Despite Coeur's inexplicable silence on the matter, the suit isn't based on some big principle about despoiling pristine lakes or releasing chemicals into Berners Bay. That wasn't Coeur's plan.

Water was to be treated before it was released into Slate Creek. Instead, SEACC's suit is based on whether regulations promulgated under the Clean Water Act (not the Clean Water Act itself) say a particular milling reagent can be used within a jurisdictional tailings facility. SEACC's legal argument limits both lakes and dry stacks on wetlands.

My second point is that Juneau residents need to understand that the "solution" SEACC claims to support is more environmentally damaging than Coeur's proposal. If people understood these two points, SEACC's membership wouldn't fill a good-sized living room.

Many residents fear that SEACC is not being honest - a question the Empire rightly raised in recent editorials. Is it SEACC's position that a regulatory technicality is so important that another mountain of garbage should be built on Lynn Canal? Or is it the group's position, as its leaders state privately, that it doesn't want a mine no matter what?

Only the latter makes sense. The plaintiffs' dishonesty is palpable. Even as Rorick wrote to claim support of dry tailings, his group was filing an Endangered Species Act action that is the first step to block dry tailings. But what's new? When the review process started some years ago, I attended a meeting between SEACC and Juneau Economic Development Council board. Board members, led by Mayor Bruce Botelho, pressed SEACC's representative hard on what was acceptable. But, press as the board might, it didn't get an answer. The dry-stack process wasn't mentioned. I and others left the room thinking SEACC's answer was "no mine, no way."

The plaintiffs get their way by quibbling. The law that SEACC sought, limiting use of the milling reagent, applies to lakes and wetlands alike as well as slurries and dry stacks alike. The court didn't rule against using Lower Slate Lake, though SEACC now demands this.

Rorick says my proposal to prepare the lake might be legally OK, but it wouldn't be technically pure enough to meet the SEACC/Sierra Club standard and these groups will sue again. We have moved from legal technicalities to geotechnical technicalities.

Who is to say whether a proposal to prepare a wetland site for dry stacks or a treatment pond would be technically good enough? SEACC? Some "no-mine-no-way" splinter group that might pick up the baton if SEACC and Coeur agree? And what about all the huffing and puffing about courts not allowing an end-run around the grand principles of the Clean Water Act? Is there some high principle that only those who want to stop a mine can exploit technicalities?

So back to the question, who says what goes?

That would be the Corps of Engineers. SEACC is not the regulatory agency that decides if a solution is technically feasible. The Corps is. If the Corps approves the plan (I can't be certain it would), then any court will give strong deference to its technical findings of feasibility. The court would give far more deference than to the regulatory interpretation SEACC challenged before.

If SEACC sues again, I would expect it to lose and lose quickly. And the people of Juneau shouldn't abide such a suit. Not for one minute.

So I end where I began; let's get on with it.

• Eric Twelker is a Juneau attorney and geologist.

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