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Feds say Alaska laws that hamper lawsuits against mining companies must be changed

Margaret BaumanThe Cordova Times

Federal regulators of surface mining say Alaska's attorney fee rules in challenges to coal strip mines are inconsistent with federal law and must be rewritten.

The decision of the Interior Department's Office of Surface Mining, Reclamation and Enforcement came in response to a letter from Trustees for Alaska, of Anchorage, sent in August 2012. In it, Trustees spoke of an unapproved change in the Alaska surface coal mining regulatory program regarding the award of attorney's fees and costs to public interest litigants.

Trustees, an Anchorage nonprofit public interest environmental law firm, was representing Chuitna and Castle Mountain citizens coalitions concerned about adverse effects on the Chuitna River from PacRim Coal's proposal to strip mine directly through 25 miles of the river's tributaries.

Under the current law, people who unsuccessfully challenge an agency decision or who sue a coal mining company for violations can be held accountable for the other side’s attorney fees. Alaska is the only state in the union with a "loser pays" rule, the citizens’ coalitions noted.

"This policy creates a strong chilling effect, deterring many people from going to court to ensure companies are in compliance with mining permits that protect our lands and waters," the coalitions said in a statement issued April 25.

"Alaska residents deserve the opportunity to challenge coal strip mine permits that we believe are illegal without fearing bankruptcy," said Jamey Duhamel, program director of Castle Mountain Coalition, a non-profit organization in the Matanuska Valley opposed to Usibelli Coal Mine's proposed Wishbone Hill coal strip mine.

Vicki Clark, executive director of Trustees for Alaska, said the law was changed in 2003 to restrict citizen access to court, by changing the way attorney fees are calculated. According to Clark, "making access to court more difficult is just one of the ways the state of Alaska has attempted to cut citizens out of the public process in resource decision making.

"If folks face a hurdle of having to pay (if they lose) they are not likely to bring the case to court," Clark said.

"It's a continuation of the Parnell Administration's attacks on democracy and cutting Alaskans out of our rightful role in fish and water decision making," said Homer’s Bob Shavelson, executive director of Cook Inletkeeper.

The Alaska Department of Natural Resources, meanwhile, stood in defense of its efforts, saying in an email response to the Interior Department letter that "our position has been that House Bill 145, which passed more than a decade ago, did not change the Alaska coal program. More than a decade after the fact, OSMRE is telling us the opposite. We're reviewing the letter and will respond."

Based on legal analysis of the Interior Department's Office of Surface Mining, Reclamation and Enforcement of allegations submitted by Trustees for Alaska, and responses from the state Department of Natural Resources, the federal agency found that Alaska House Bill 145 significantly changes how state courts may authorize award of fees under that Alaska program in civil actions brought to compel compliance with the program, said Allen D. Klein, regional director for SMCRA.

Klein advised Russell Kirkham, coal regulatory program manager for DNR, to respond within 60 days of receipt of the letter of April 21 with proposed written amendments or a description of amendments to be proposed and a timetable for enactment.

House Bill 145, sponsored by the office of then Gov. Frank Murkowski, passed during the 2003 legislative session, and was upheld by the Alaska Supreme Court in 2007.

John Harris, then a Republican member of the Alaska House of Representatives from Valdez, defended the measure in an article published online by PointofLaw.com, a website of information and opinion on the U.S. litigation system.

The exemption, said Harris, "created a cottage industry for Outside environmental groups to sue anyone trying to build something in Alaska without having to worry about the consequences of losing."

The article, entitled "Loser-Pays In Alaska: The Way It Should Be," is online here.

This article originally appeared in The Cordova Times and is republished here with permission.