Disputing analysis of Kensington suit

Posted: Monday, October 22, 2007

I read Juneau Assembly member Jonathan Anderson's scholarly legal analysis of the lawsuit between Kensington Mine and Southeast Alaska Conservation Council.

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In reading his "legal" opinion of Sept. 19, he says the 9th U.S. Circuit Court of Appeals has ruled - final - there is nothing left to negotiate as the court found the "least environmentally damaging practicable alternative" to be unlawful. End of story. And yet the full panel 9th Circuit has in fact directed the environmentalists to respond to Coeur's, the State's, Goldbelt's and the Department of Justice's petition for rehearing.

Could it be in your haste to pass final judgment you forgot to mention the initial ruling by the three-panel San Francisco court is not final, but is in fact still pending in the 9th Circuit on the petition for rehearing brought by the Kensington operator, state of Alaska, Goldbelt, and the U.S. Government? Did Anderson also forget that after the petition for rehearing and possible rehearing on the merits, the losing side can still petition the U.S. Supreme Court to hear the issue? Anderson seems to forget that the district court dismissed the case as without merit. Perhaps he even forgot that the 9th Circuit Court is the most overturned court in America.

I was surprised by his comment that "there is nothing to negotiate." One must wonder, why did Juneau Mayor Bruce Botelho issue a press release saying all parties (including SEAAC) are in fact negotiating to find a solution to bring the Kensington Mine into production in a timely manner?

Anderson contends the SEAAC has no control over the legal situation. He fails to remind readers that SEAAC made the decision to appeal, not the court. He fails to remind readers that SEAAC knows that it can use the court system to delay the project and run up costs, perhaps to the point of making a sound project financially unviable. One must wonder why a member of the university's faculty and city Assembly is so interested in painting a picture of SEAAC as an innocent victim of the court system.

At least when we consider whether Anderson should remain on our Assembly, we should remember his dissertation on behalf of SEAAC and its attempt to shut down the Kensington Mine, which conveniently ignored many of the facts. Accountability may have been another thing he forgot.

Denny DeWitt


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