Judge: State wrong in ignoring water-rights request by strip-mine opponents

ldemer@adn.comOctober 17, 2013 

An Anchorage judge has ruled that the Parnell administration failed to follow the law when it neglected water rights applications by a group seeking to protect a Cook Inlet salmon stream where a Texas billionaire hopes to build a coal strip mine.

The Chuitna Citizens Coalition sued to force the state Department of Natural Resources to process water rights applications that it filed in 2009 to keep the stream flowing.

The state argued it didn't have enough staff to process numerous water rights applications pending across Alaska. In a decision signed Monday, Anchorage Superior Court Judge Mark Rindner said that was no excuse.

"A lack of resources cannot excuse four years of complete inaction, other than litigation," Rindner wrote.

He said he recognized that the Legislature may be responsible for the staffing shortage but that didn't justify ignoring applications for years. A short delay of weeks or even months might be reasonable but that's not what happened here, he wrote.

The state's argument that it could look out for the public interest and protect streams by putting special conditions onto water use permits didn't override its duty to address claims like that of the Chuitna Citizens Coalition, he wrote.

"In sum, DNR's justifications for its delay are insufficient to support its decision to take no action on Chuitna's application."

The judge ordered the Department of Natural Resources to begin work on the applications within 30 days.

The state said Thursday it was reviewing the decision and considering whether to appeal. The judge ruled for the state on three points and against it on two, assistant attorney general Cori Mills noted in a written statement. She said the state was disappointed the judge sided with the Chuitna group on its claims of unreasonable delay and due process violations.

The judge found that the Department of Natural Resources did not violate mandates in state statute, constitutional requirements for equal treatment, or a constitutional provision that gives priority for water rights in the order of when they are obtained, Mills said.

The salmon habitat has been protected through restrictions on permits for temporary uses of the water, the Department of Law contends.

The stream, called Middle Creek or Stream 2003, is within the proposed Chuitna Coal Project. PacRim Coal Limited Partnership, affiliated with Dallas billionaire William Herbert Hunt, plans a large strip mine about 12 miles northwest of Tyonek and 45 miles west of Anchorage. The mine would be the largest ever developed in Alaska salmon habitat and it's being fiercely fought.

"Today's ruling is a victory for every Alaskan who wants to protect wild salmon and the Alaskan way of life," Ron Burnett, a fisherman, hunter and founding member of the Chuitna Citizens Coalition, said in a written statement. "Time and again, the state of Alaska has put the interests of Outside mining interests ahead of the rights of Alaskan residents. This decision should help restore the balance."

The citizens group filed three applications for what's called "instream flow reservations," a type of water right that assures water remains in the streambed for a public purpose.

The Parnell administration has been trying to eliminate the ability of private individuals and groups to make water reservations.

Among other issues, Rindner noted that the state was wrong to charge the Chuitna group a total of $4,500 for its applications, and then not act.

"That fee, along with Chuitna's application, has disappeared into DNR's files and the State's treasury," the judge wrote. "There is no excuse for DNR's charging an application fee and then take no action on the applications."

Colleen Moore is the senior assistant attorney general handling the case. Valerie Brown with the public interest environmental law firm Trustees for Alaska argued the case for the citizens group.

The state has 30 days to appeal.

Reach Lisa Demer at ldemer@adn.com or 257-4390.

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