Developers of the proposed Pebble mine don't deserve special protections for buying insider documents about the financial workings of project opponents and then using the records to pursue a case against those opponents with the Alaska Public Offices Commission, a California appeals court panel ruled Tuesday.
The ruling allows a California lawsuit filed in March 2011 by the Renewable Resources Coalition, an Anchorage-based anti-Pebble advocacy group, to go forward against Pebble Limited Partnership, the related Pebble Mines Corp. and their lawyers. The former fundraiser for the anti-Pebble forces, Los Angeles-based Robert Kaplan, also is a defendant in the suit but wasn't part of the issue under appeal.
The case ties back to Kaplan's work during the 2008 Clean Water ballot initiative intended to stop the Pebble mine. Voters rejected the measure, Kaplan was fired, and he later sold internal emails, donor lists, bank records and other information to Pebble for $50,000, according to the ruling and to decisions in related cases. An arbitrator in 2012 determined that Kaplan had "unclean hands" for selling the documents, was untruthful and must pay more than $3 million to the coalition and more than $5 million to political consultant Art Hackney but Kaplan has filed for bankruptcy.
The ruling Tuesday opens the way for claims against Pebble and its law firm, Jermain, Dunnagan & Owens. Pebble acknowledges it used the information its lawyer bought from Kaplan as the framework for a complaint to APOC alleging that prominent mine opponent Bob Gillam secretly funneled nearly $2 million into the 2008 initiative.
The Renewable Resources Coalition, Gillam and the Alaskans for Clean Water ballot group settled the APOC complaint for $100,000. The coalition lost donors and "just limped along" as a result of the high profile investigation, executive director Anders Gustafson, who also heads a sister educational foundation, said Tuesday.
"It almost neutralized the coalition arm," he said. Tuesday's ruling should "breathe some life back into the coalition" and make it stronger, he said. He was in Ninilchik preparing for the Salmonstock music festival, which starts Friday as a celebration of salmon and as a venue to fight Pebble.
The Pebble prospect is one of the world's biggest deposits of gold, copper and other minerals. It is being fiercely protested because it straddles the headwaters of two rivers in the Bristol Bay watershed, home to the world's biggest run of sockeye salmon.
Pebble and its lawyers had earlier won a ruling by a Los Angeles Superior Court judge that threw out the Renewable Resources Coalition claims. Judge Terry Green found they were pursuing the APOC case as a public interest issue and were justified in bringing it forward with the purchased documents. Pebble called the coalition's claim a "strategic lawsuit against public participation," or SLAPP suit, intended to stifle its effort to bring campaign irregularities to light.
But the three-justice panel of the California Court of Appeal disagreed. The panel found that the central element of the lawsuit was the coalition's assertion that Pebble wrongly bought confidential documents.
"You can't pay money to your opponents' consultant to get your opponents' stuff," Stephen Cusick, lawyer for the Renewable Resources Coalition, said Tuesday. "They took our documents. They ginned all this stuff up so they could smear these guys, make them look bad, and take out the organized opposition to the mine."
Pebble maintains the APOC case needed to be brought forward, spokesman Mike Heatwole said Tuesday.
The lawsuit now goes back to the Los Angeles Superior Court Judge.
"The ruling today essentially leaves the plaintiff at the starting gate, not the finish line," Heatwole said in an email. " It means that the plaintiff must now try to prove its case. We will vigorously contest the case and expect to prove it is without merit."
Pebble is considering an appeal to the California Supreme Court.
Meanwhile, the anti-Pebble forces are working on a new initiative that would require a big mine in the Bristol Bay area to be approved by the Legislature.
They are aiming for the 2014 ballot.
Reach Lisa Demer at firstname.lastname@example.org or 257-4390.
By LISA DEMER