A federal judge considering a court challenge by Pebble mine developers has granted Pebble's request to force testimony by a former government scientist now believed to be living in Australia.
Pebble Ltd. Partnership asserted in court filings that Phil North fled the country to avoid answering allegations that he colluded with tribal groups and environmentalists to block the mine's development. North was a lead scientist for the U.S. Environmental Protection Agency, which has proposed to use its powers under the Clean Water Act to block any mine of the scale proposed by Pebble developers in the Bristol Bay watershed.
While Pebble accused North of fleeing, he told The Redoubt Reporter in 2013 that he was preparing to sail around the world with his family for two years after retiring from the EPA.
Pebble is fighting in court to derail the EPA's efforts. In a lawsuit filed in September 2014, Pebble contends that the EPA failed to follow basic rules of open government as it studied the Bristol Bay watershed. Pebble has proposed to develop a massive copper and gold mine at the headwaters of Bristol Bay, home to half of the world's wild sockeye salmon runs.
U.S. District Judge Russel Holland on Thursday ruled in favor of Pebble's request to force North back to the United States to give sworn testimony in that case, and to produce requested documents.
The EPA did not fight the subpoena but filed an unusual "statement of position" that the government said was necessary "to clarify the record before the Court and dispute the unsubstantiated and inflammatory assertions" by Pebble.
Pebble asserted that North "is uniquely situated to provide critical information" and that efforts to recover it otherwise had been unsatisfactory.
For instance, he used his personal email account to conduct EPA business and did not forward those emails to his government account, Pebble said in its motion to subpoena North. Documents are missing from a hard drive that crashed. The EPA also found an encrypted thumb drive, but only North knows the password, Pebble said.
Pebble also said that North had fled the country to avoid the threat of a congressional subpoena.
The EPA said it was "unaware of Congress ever issuing a subpoena to Mr. North." Pebble hadn't submitted any evidence that North was being evasive, the government said.
The EPA has asked through North's attorney that he provide the agency with any thumb drive password and copies of personal emails related to EPA business, the statement filed in court said.
"EPA's efforts have included providing the hard drive at issue to the Office of Inspector General, and emails recovered from the drive have been produced to Plaintiff through FOIA," the EPA said in its position statement, referring to the Freedom of Information Act.
That didn't sway the judge. Holland said the EPA didn't present a basis for opposition, though its "statement of position bristles with commentary."
In a separate lawsuit, Pebble is seeking documents through FOIA. Holland also is overseeing that case.
The FOIA proceedings showed that North was a major player and that the EPA has not been able to retrieve all of his emails, some documents from the hard drive and the encrypted files on the thumb drive, the new order said.
North "(much more so than others) is in a position to explain what was transpiring within the EPA in the lead-up to the preparation of the Bristol Bay water assessment," Holland wrote. "Indeed, the court would be surprised if the EPA were not as anxious as Pebble to obtain testimony and access to documents controlled by Mr. North. It appears to the court that Mr. North may be the only person within the EPA capable of shedding meaningful light upon whether or not unauthorized advisory committees were created or utilized in connection with preparation of the Bristol Bay water assessment."
The deposition will take place Nov. 12 in Anchorage, under the order.