This story was originally published in the Alaska Beacon.
The Alaska Supreme Court is considering a pair of lawsuits that could stop construction of the Donlin gold mine in Southwest Alaska.
The court’s five justices heard arguments Tuesday in the cases, filed by Southwest Alaska tribal governments against the state, which is in charge of permitting the mine.
Lower-court justices have ruled against the plaintiffs in both cases, but if the Supreme Court were to reverse those earlier decisions, it would be a setback for mine development.
At the conclusion of Tuesday’s hearings, Chief Justice Peter Maassen said both cases will be taken under consideration, with a written decision to be released at a future date.
The mine project has already faced a barrage of lawsuits, including one in federal court that resulted in a partial victory for mine opponents earlier this year.
This week, members of the state’s high court were asked to consider whether the Alaska Department of Natural Resources improperly granted a key permit for a natural gas pipeline intended to supply fuel for the proposed mine’s power plant.
In the second case, they were asked to examine the state’s water-permit program, as applied to the proposed mine.
Members of the state’s high court appeared skeptical of both cases and repeatedly interrogated Olivia Glasscock, an attorney from Earthjustice, the environmental law firm representing the tribal governments in both cases.
Maassen said he was “struggling” with the argument that the pipeline and mine should be considered as a single unit. He asked: If the pipeline was built but later replaced by a wind farm, does that mean the mine would have to be reconsidered all over again?
Yes, Glasscock said, but presumably the state would be able to use its prior work as part of the reconsideration.
“The problem is that they’re never considering the whole of the project, the whole of the impacts on the public interest, they’re issuing piecemeal decisions,” she said. “They’re looking over here and saying, well, the pipeline doesn’t have that much of an effect, so it’s OK, and looking at each in a silo by itself, and never determining whether overall, it’s a good idea to use the state’s resources for this project.”
In the second case, whose arguments took place an hour after the first, justices had tougher questions for attorneys representing the state.
Donlin is envisioned as an open-pit mine, and that pit will eventually be turned into a lake. Alaska Supreme Court law requires agencies to take a “hard look” at projects and make reasoned decisions.
Borghesan questioned state attorney David Wilkinson, asking whether the Department of Natural Resources did take that hard look with regard to the eventual environmental effects of the resulting pit lake.
Those effects are barely mentioned in the state’s permitting documents, unlike the long-term economic effects, which are discussed at length, Borghesan said.
“It just feels like it’s slanting the hard look,” he said.
Wilkinson responded that the Alaska Legislature has set the review criteria and has identified where the state should look.
He said that doesn’t amount to weighting the dice in favor of the project.
“I think what it does is it reflects the constitutional mandate to have a priority of appropriation and a beneficial use doctrine that has that built in,” he said.
James Brooks is a longtime Alaska reporter, having previously worked at the Anchorage Daily News, Juneau Empire, Kodiak Mirror and Fairbanks Daily News-Miner. A graduate of Virginia Tech, he is married to Caitlyn Ellis, owns a house in Juneau and has a small sled dog named Barley.
