Judge says he'll keep close watch on Chuitna water rights case but doesn't find the state in contempt

ldemer@adn.comNovember 27, 2013 

An Anchorage judge said Wednesday he will directly oversee an effort by a citizen group seeking to protect a salmon stream threatened by a proposed coal mine to ensure the state acts promptly on the group's applications for water rights.

The Chuitna Citizens Coalition had asked Superior Court Judge Mark Rindner to find the Department of Natural Resources in contempt of court for failing to move quickly enough on its four-year-old applications after his Oct. 14 ruling in the group's favor.

The court fight involves water reservations, a type of water right that seeks to reserve or set aside water for public purposes including recreation and protection of salmon or other wildlife. The Parnell administration has proposed eliminating the ability of private groups to seek and hold such water rights.

Rindner said he didn't see reason to hold the state in contempt, but said he was going to closely watch the administrative side of things.

"I want a strict timetable that I can hold DNR to," the judge said at Wednesday's hearing. He said he needed to "make sure that nobody's dragging their feet on this thing and giving it a slow roll as far as the application."

At issue is a salmon stream on the west side of Cook Inlet that would be wiped out by a large strip mine proposed by PacRim Coal Limited Partnership, affiliated with Dallas billionaire William Herbert Hunt. The proposed mine, about 12 miles northwest of Tyonek and 45 miles west of Anchorage, would be the largest coal strip mine in Alaska and the first to completely wipe out a wild salmon stream, according to Cook Inletkeeper, an environmental group that opposes it.

In his October order, Rindner found that the state had violated the Chuitna group's constitutional due process rights and state law by failing to act on water rights applications filed in 2009 to keep the stream flowing for the public good. He gave DNR 30 days to begin work.

Since then, PacRim Coal has applied to use 100 percent of the water in the stream, called Middle Creek or Stream 2003, Cook Inletkeeper said.

DNR says the first step is analyzing the Chuitna group's request, which it wants to do at the same time as the PacRim request. That makes sense, Rindner said, but given that PacRim just filed for its water use permit, the citizens group's requests shouldn't be held up if PacRim's application needs more work.

DNR has started work on the three Chuitna applications and needs updated information from the group, senior assistant attorney general Colleen Moore told Rindner.

Under a timeline set by Rindner in court, DNR will send a letter to the Chuitna group by Dec. 6 seeking additional stream data, and the group will have 60 days to respond. Trustees for Alaska lawyer Valerie Brown said it expects to do so more quickly. Rindner directed each side to update him on the situation by Feb. 6 and to appear before him again Feb. 11. Trustees is the environmental law firm that brought the court challenge.

Moore said in an emailed statement after the hearing that the state was pleased. She noted that the court "clarified that it expects DNR to proceed with its usual decision making process."

Brown said Rindner is committed to making sure the Chuitna group's water rights are addressed -- and soon.

"The judge has said he's going to pretty much supervise the process," she said.

The Chuitna group includes residents of the small western Cook Inlet community of Beluga as well as setnet commercial fisherman.

The court case comes in the midst of a legislative fight over a Parnell administration measure that would strip away the ability of private groups and individuals to seek water reservations. House Bill 77, which would also change the state permitting system, passed the House and ended the 2013 legislative session holed up in the Senate Rules Committee.

DNR has never ruled on the merits of a private application for a water reservation, Trustees for Alaska has said. But the agency has granted a number of water reservations for the state Department of Fish and Game, one for the Bureau of Land Management, and several sought by DNR itself, according to DNR.

DNR had proposed hosting open houses around the state to discuss permitting and House Bill 77 but decided that was too time-intensive, so the agency is instead making presentations at events organized by other groups.

In Anchorage, the Alaska Center for the Environment plans a public forum on House Bill 77 on Dec. 11 from 6 to 8 p.m. at the Alaska Experience Theatre. It has invited representatives from DNR as well as tribal and commercial fishing groups to be on a panel.

On the Kenai, Sen. Peter Micciche, R-Soldotna, is hosting public meetings on the bill on Dec. 9 at the Kenai Peninsula Borough Assembly Chambers and Dec. 10 at the Alaska Islands and Ocean Visitor Center in Homer. The meetings run from 4 p.m. to 7 p.m., with DNR presentations at 4 p.m., a panel discussion at 5 p.m. and public testimony at 6 p.m.

The state is still considering whether to appeal Rindner's October decision on the Chuitna group's request for action on its water rights applications.

If House Bill 77 passed in its current form, the Chuitna group's lawsuit would become moot, according to the state.

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

 

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