November 18, 2015

A federal judge has ruled that Pebble mine developers have no right to force opposing environmental and fishing groups to turn over years of records or to require testimony by two individuals fighting the massive proposed mine.

In a 14-page order issued Wednesday, U.S. District Judge Russel Holland said that Pebble Ltd. Partnership already is getting relevant information from the U.S. Environmental Protection Agency. Pebble is suing the EPA in a case that contends the federal agency improperly interacted with anti-mine activists to restrict mining in the salmon-producing waters that feed Bristol Bay. The activists subpoenaed by Pebble were not parties to the lawsuit.

“Pebble is ‘pushing the envelope’ as far as its non-party discovery efforts,” Holland wrote.

The ruling applies to subpoenas Pebble issued to the Alaska Conservation Foundation, Bristol Bay Regional Seafood Development Association and two individuals, Sam Snyder and Bob Waldrop, both of Anchorage. But it will guide numerous other conflicts over documents and testimony sought by Pebble, said Jeff Feldman, who represented Alaska Conservation Foundation and Snyder.

“Suffice it to say, they blanketed the country with subpoenas,” Feldman said Wednesday.

Pebble Partnership says it has issued about 60 subpoenas including about 10 to individuals seeking information about how EPA came to recommend using its powers under the Clean Water Act to all but prohibit the massive mine in the Bristol Bay watershed. The mine developers say the process was biased and flawed. EPA stopped short of blocking the mine outright, but proposed caps on how many miles of streams and acres of wetlands could be lost.

“We have been assertive in seeking all sources of information to reveal the facts about EPA actions against Pebble and we will continue to seek documents that support our claims,” Pebble spokesman Mike Heatwole said in an email Wednesday afternoon. “In this ruling, the judge has said that the EPA should have the documents necessary for us to make our case.”

The mine developers believe that third-party groups have relevant documents too, and some groups already have provided them, he said.

“This is one of many steps along this legal path as we work to have our day in court about the actions taken by the EPA against Pebble,” Heatwole said.

Heatwole shared a list of individuals, companies and organizations from which Pebble had sought testimony or records that included a number of Alaska environmental and seafood groups but also The Wilderness Society, the National Oceanic and Atmospheric Association, the National Park Service, the University of Washington and even luxury jewelry retailer Tiffany & Co., which has a policy of obtaining its precious metals “in ways that are socially and environmentally responsible.”

Pebble’s legal team was in Washington, D.C., so he was unable to provide a breakdown of the status of all the subpoenas late Wednesday. Some entities either have provided records or are discussing with Pebble how to narrow the scope, Heatwole said.

But some individuals and groups have filed in court in California and Washington state to contest Pebble’s efforts to extract records and testimony.

In Montana, a federal magistrate judge on Wednesday decided to hold onto a court challenge filed there rather than transfer it to Alaska, as Pebble wanted. Pebble is seeking extensive records from the Bozeman, Montana, Center for Science in Public Participation and testimony from executive director David Chambers. Magistrate Judge Jeremiah Lynch said that he would await the rulings in Alaska. Among other things, Chambers and his science center — which offers technical advice related to environmental impacts of mining — noted that Montana’s state Constitution provides strong privacy protections.

In Alaska, Snyder managed a scientific review of Pebble research for the Alaska Conservation Foundation, which funded a coalition of tribal and other organizations working to protect Bristol Bay. Waldrop was one of the founders and former executive director of the Bristol Bay seafood association, which works with fishermen to improve the market value of Bristol Bay sockeye salmon.

Snyder said Pebble was seeking everything he knew “about mining in Alaska dating back to before I lived in Alaska, which is amazing.”

The ruling provides relief, he said.

“You don’t realize the stress these sorts of things put on you,” Snyder said. “It changes how you think about engaging in our public processes.”

Some of the activists complained that Pebble was harassing them by violating their privacy and their right to speak out against the mine.

“Judge Holland said it best,” Waldrop said in an email. He quoted from the ruling, which found that “discovery such as that sought by plaintiff in this case has the tendency to chill the free exercise of political speech and association which is protected by the First Amendment.”

Still, Holland, in denying a request by Waldrop and the seafood association for attorney fees, said that Pebble did not appear to act in bad faith. Rather the mine developer “sees the EPA proceedings as a life-or-death struggle with respect to the Pebble Prospect,” Holland wrote, just as the other side sees the mine as “an extreme danger” to fisheries.

Pebble initially sought what Holland called “an extraordinarily broad range of documents” from the Alaska Conservation Foundation including all documents relating to hard-rock mining in Alaska stretching back 11 years.

The judge said that was “totally unreasonable.” Even Pebble’s narrowed requests for communications between Alaska Conversation Foundation or the Bristol Bay seafood group and the EPA as well as 31 other groups and people were too much, he found.

Pebble is trying to prove that when EPA conducted its Bristol Bay watershed assessment, it violated a federal law, the Federal Advisory Committee Act, which requires a fair and open process for using advisory committees. Holland in June rejected some of Pebble’s claims but is allowing one to proceed concerning the EPA’s use of a technical team.

What matters is the information from EPA, Holland said.

“Simply put, proof of a FACA violation comes from agency conduct, and proof of plaintiff’s contentions are most likely to be found (if at all) in EPA records,” the order said.

Activist groups have the right to talk to one another, and to jointly present a case to the EPA, the ruling said. Most of the documents being sought are statements of opposition to the Pebble mine, the groups have said. That’s irrelevant to Pebble’s claims of a flawed process, the judge wrote.

The groups cannot be found in violation of the federal law on advisory committees, which governs the behavior of federal agencies, not private interests, Holland wrote.

The information can come directly from EPA, a process that “will be more convenient, less burdensome, and less expensive,” the ruling said.

Source URL: http://www.adn.com/article/20151118/judge-rules-against-pebbles-efforts-records-testimony-activists

Links:
[1] http://www.adn.com/sites/default/files/200%20Holland%20Order.pdf
[2] http://www.adn.com/author/lisa-demer