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UAA professors fighting subpoenas from Pebble over Bristol Bay research

  • Author: Lisa Demer
  • Updated: July 23, 2016
  • Published July 22, 2016

Two University of Alaska professors say that subpoenas from Pebble Limited Partnership seeking evidence in its lawsuit against a federal agency are wasting university time and money, and are a diversion from the science and research they should be pursuing.

Pebble's prolonged effort to get at their records sends a message to stay away from anything that might be controversial, the professors say in new court filings. The push threatens their First Amendment right to study what they wish, the university says.

Work on the proposed Pebble gold and copper mine has moved from the Bristol Bay region to U.S. District Court in Anchorage, where lawyers from Pebble are challenging an Environmental Protection Agency assessment that found a mega-mine would be destructive to the bay's world-class wild sockeye salmon runs.

Pebble is looking for evidence that EPA was too chummy with mine opponents and illegally manipulated the scientific review in violation of a federal law requiring a transparent public process.

Pebble is examining the work surrounding the Bristol Bay watershed assessment, released in 2014 and used to support a determination that a giant open-pit gold and copper mine like that proposed by Pebble is fundamentally incompatible with pristine, salmon-rich waters.

In March, Pebble attorneys issued a second round of subpoenas — court summonses to provide documents and testimony — to Alan Boraas, an anthropology professor on the Kenai campus of University of Alaska Anchorage, and Dan Rinella, a former UAA assistant biology professor. Pebble wants them to provide evidence about their work for the EPA study of Bristol Bay.

Not if they can help it, say the university and the professors.

Boraas was the principal investigator for the section of the EPA study on traditional ecological knowledge and indigenous cultures. Rinella led the literature review of Bristol Bay fishery resources. He recently left to work for the U.S. Fish and Wildlife Service as a fish biologist and said the diversion from research to costly litigation was a contributing factor in his job change.

Pebble in June asked U.S. District Court Judge Russel Holland to order them to testify and produce the documents. In court papers filed this week, the university and the researchers explained their opposition to a request they call burdensome and intrusive.

Pebble's effort threatens the researchers' academic freedom to pursue scientific research, which is protected by the First Amendment the same as political speech and artistic expression, wrote the university's associate general counsel, Andy Harrington.

"The First Amendment thereby protects 'the most common expressive activities of scholars — teaching a class, publishing their ideas, speaking at conferences, or writing to colleagues over the Internet …,' " Harrington wrote, quoting a 1997 federal court decision out of California.

Pebble has been trying since last year to subpoena non-EPA players including the two university researchers.

In November, Holland ruled that Pebble needed to get documents from EPA, since the agency's actions are at issue in its study of Bristol Bay salmon and mining.

EPA says that in the past year it has turned over more than 2 million pages of documents to Pebble. Some 17 current and former EPA employees have testified under oath and four more are set to do so, EPA said in a court filing last week.

That's more than enough material, EPA says. It is fighting Pebble's efforts to get more as "a fishing expedition to substantiate its fictional claim."

But Pebble responds that that there are big gaps in what EPA has provided. Holland ruled in a separate public records case that EPA had wrongly withheld some documents from Pebble, the mine developer notes.

Anyway, the reference to 2 million pages is misleading, Pebble spokesman Mike Heatwole said in an email Thursday.

While EPA provided the bulk of that — 1.3 million pages — on May 24, most was in the form of spreadsheets detailing travel across the agency that were "redacted as non-responsive," according to what Department of Justice attorneys told Pebble, Heatwole said.

Pebble now is looking beyond EPA anew and has issued about a dozen subpoenas that it describes as "limited and focused," according to Heatwole.

Boraas and Rinella see the subpoenas very differently.

Both contend that responding to the subpoenas "constitutes a time burden of proportions likely to be a discouraging factor for them, as well as other researchers, who contemplate engaging in future scientific research in areas which … are likely to become controversial because of the size of the commercial interests at stake," according to the university filing.

Under earlier subpoenas, both already produced some records that they sent to EPA to review first. EPA never turned those over, Pebble said.

Pebble may be seeking fewer records in its latest subpoena but that doesn't mean less work, according to the university.

Instead, the narrowed demand requires sorting through materials in detail "rather like changing its request from one for the entire bag of M&M's to only those non-red M&M's with mass less than 0.9 grams," Harrington wrote.

The university has no position on whether the Pebble prospect should be developed, he noted. But Boraas published opinion pieces critical of Pebble and mining before he began the work for EPA, and says Pebble has made an issue of that.

"I do not think that expressing those views should open up my records to the degree that Pebble seeks under this subpoena, and if this Court determines that Pebble should be allowed to enforce this intrusive subpoena based on my policy or political views, it will have a chilling effect on my expression of my views in the future," Boraas said in a court filing.

He also has concerns about student privacy and confidentiality of research subjects, though Pebble has indicated it won't push for names of students who helped in the research or of people who participated in his study of Bristol Bay, according to the university.

If Holland rules that the professors' records must be provided to Pebble, the university wants the mine developer to cover the cost of combing through files, alerting students and determining what must be provided.

That will likely run about $45,000, the same as its halted effort to respond to earlier subpoenas, the university said.

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