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Probe into raid of Chicken miners by gun-toting EPA investigators finds no laws broken

Sean Doogan
Alaska Gov. Sean Parnell questions Ken Fisher, EPA deputy director for Alaska, at a meeting in the Chicken community hall on Sept 14, 2013. Approximately 40 miners, congressional aides and the governor were questioning Fisher and BLM officials about August raids where teams of EPA agents, armed and wearing body armor, descended unannounced on mining claims under the pretense of checking for violations of the federal Clean Water Act. Loren Holmes photo

A special investigator hired by Gov. Sean Parnell has concluded no laws were broken by an armed and armored Environmental Protection Agency-led task force that stormed into the Chicken area to check area mines for Clean Water Act Violations last August.

Brent Cole, an Anchorage attorney who won the bid for the investigation, also said in his 65-page report that officers of the Alaska Environmental Crimes Task Force acted appropriately while conducting their investigation. But Cole's report added that federal officials interfered and did not cooperate with his investigation. There was no need for criminal investigation of eight area placer mines in the first place, the report asserted, but for unknown reasons the EPA did so anyway.

The report -- which cost the state $50,000 -- was requested by Parnell after the governor attended a meeting with miners in Chicken to discuss the EPA compliance checks. The miners said the EPA task force was an unnecessary escalation of enforcement in an area where compliance issues are usually handled by an inspector with a clipboard and some water-testing equipment. The report also found that the Alaska Environmental Crimes Task Force had never before been used in the field to investigate possible criminal violations of state and federal water-quality laws. During the August compliance checks – which the miners describe as raids –task force officers carrying firearms and wearing body armor and jackets emblazoned with the word "Police" visited various mines.

Although the report did not find violations of state or federal laws, Parnell said the issue is not over. "Just because a federal agent didn’t commit a criminal act doesn’t mean they went about their job well," the governor said at a Wednesday press conference during which he released the 65-page Cole report.

The area near Chicken, a village with fewer than 50 residents, contains small, family-run placer mine operations. They are similar to the mines seen on the reality TV show “Gold Rush: Alaska.” Most search for gold by digging up ground and running it through a sluice box, using water to wash away the rocks, leaving valuable gold behind. The water they use must be allowed to settle in ponds before it's discharged back into streams or creeks, so that mud and rocks don’t pollute nearby waterways. Water turned turbid (cloudy or muddy) can kill fish. Turbid water is allegedly what the EPA was looking for when it sent its 10-member task force into the woods and streams of the Fortymile Mining District. The area is part of the Fortymile National Wild and Scenic River. The federal designation, made in 1980 as part of the Alaska National Interest Lands Conservation Act, protects 32 miles between Chicken and Eagle, Alaska. It is a remote area, close to the Canadian border and the town of Boundary. The nearest city of any real size is Fairbanks, 140 miles to the northwest.

Parnell noted that the use of armed and body-armor-wearing officers who were relatively unfamiliar with the Fortymile area put people at risk.

"Miners are used to protecting their gold from others, and when you're in an isolated location like that and you are surprised, bad things can happen," Parnell said.

The Cole report also details a running dispute between the agencies involved in the Chicken-area compliance checks. Cole noted that investigators from the Alaska State Troopers, Bureau of Land Management, and the state Department of Environmental Conservation told the EPA of their reservations about conducting a criminal investigation of the miners in the Fortymile District because they had no evidence the miners were breaking any laws.

The report also took the EPA to task for providing "inaccurate and misleading" information to the media and the public after news of the raids broke.

The EPA had originally claimed that it used armed task force members because it had reports of ongoing and rampant drug and human trafficking in the Chicken area -- claims that were denied by the Alaska State Troopers and later proven false. The report also questioned the EPA's claim that it used BLM records to find mines in the area with a history of violating the Clean Water Act.  Most of the miners contacted during the compliance checks had never been cited for any environmental violations.

Parnell now wants Congress to look into the issue. The House Resources Subcommittee on Energy and Mineral Resources has already had two hearings on the Chicken mining checks, and Parnell said he would ask its members to hold more hearings. In his report, Cole said the EPA hid 400 pages of documents pertaining to its investigation and has not allowed the state of Alaska to talk to federal officers involved with the planning and execution of the Environmental Crimes Task Force's actions.

One state officer from the Department of Environmental Conservation went along with the feds during the August raids in Chicken, but the report found that their involvement was not properly vetted by superiors. "I have issued directives to commissioners and the Attorney General so that this won't ever happen again," Governor Parnell said.

The report also recommends that all future criminal investigations go through the Alaska Department of Public Safety.

The EPA said Thursday that, so far, no criminal charges or citations have been issued to any of the Chicken-area miners contacted by the task force.

In a written statement EPA spokesperson Marianne Holsman said the agency stands by its use of the criminal task force to check for Clean Water Action violations in the Fortymile Mining District.

"The Special Counsel’s report confirms that the investigations were done professionally and courteously," Holsman wrote. "No firearms were drawn, no search warrants were carried out, no private dwellings were searched, no threats of use of force were made, and there were no hostilities or arrests."

But Chicken-area miners said the lack of a resolution about the reason the investigation was started in the first place, and continued worries about the EPA's focus on the area make them question whether they’ll be able to mine this summer.

"Right now, the Taylor Highway (the road to Chicken) is about to open and they (the miners) are getting ready to gear up for the season and are wondering if they should invest in new equipment, gas, and gear or if they will even be able to mine at all," said Alaska Miners Association Director Deantha Crockett.

Reaction to the report was swift from Alaska's Congressional delegation. Sen. Lisa Murkowksi's office said it is reviewing the report and will monitor the planned Congressional hearings about the EPA's actions in Alaska. Senator Murkowski's policy advisor, Robert Dillon, said regardless of a lack of evidence of criminal wrongdoing by the agency, the Chicken raids were just another sign of the federal attitude towards Alaska and its people. Dillon called the use of the Environmental Crimes Task Force an example of, "bad neighborliness."

"It is the view from federal agencies, that Alaskans are trespassing and must be managed because they can't be trusted," Dillon said. "There has got to be a better way for the administration to work with the state to enforce environmental laws, but also respect Alaskans as people and their desire to make a living on the land."

Congressman Don Young's office said it would be working with the House Resources Subcommittee on Energy and Mineral Resources to hold more hearings on the EPA's task force work in Alaska.

"The EPA had been in area before and if it had used same tactics it used before . . . we wouldn’t have seen the backlash we saw," Young's spokesperson Matt Shuckerow said.

Contact Sean Doogan at sean(at)alaskadispatch.com