Pebble Ltd. Partnership is dropping court battles in two other states to seek records after losing efforts to pry loose documents and testimony from environmental and fishing activists in Alaska.
But the developers of the proposed gold and copper mine warn they may try again with a more targeted push if they cannot get the information they need from the U.S. Environmental Protection Agency.
Pebble is suing EPA in federal court over its contention that the agency improperly conspired with anti-mine activists to restrict mining in the salmon-producing waters that feed Bristol Bay. It had subpoenaed information from more than 50 groups and government agencies as well as 10 individuals. At issue is EPA's use of a federal advisory committee -- what Pebble has labeled as anti-mining groups -- as it worked toward a proposal to all but prohibit a massive mine in the Bristol Bay watershed under the Clean Water Act.
U.S. District Judge Russel Holland earlier this month ruled that Pebble had no right to force the Alaska Conservation Foundation or the Bristol Bay Regional Seafood Development Association to turn over records or force officials to testify. Some of the activists said the subpoenas had a chilling effect and seemed intended to intimidate them.
On Monday, Pebble attorney Thomas Amodio said in a new court filing that as a result of Holland's order, Pebble had withdrawn subpoenas in Alaska as well as in Montana and Washington state, where those who were not part of the lawsuit also went to court to void subpoenas for records or testimony.
Others turned over records sought by Pebble. Some of the information shows not all the relevant material will be in the EPA's files, Pebble said in the new court filing.
One batch of emails between various individuals – though not EPA employees – "show or strongly imply that these individuals were taking action at the request of EPA on issues directly relevant to both the Bristol Bay Watershed Assessment ("BBWA") and EPA's 404(c) determination," the Pebble filing says. Trout Unlimited's Shoren Brown, for instance, emailed other activists about "our science work in support of EPA."
Some communications involving former EPA scientist Phil North may have to come from the activists because he was using his personal email account, Pebble said.
North is at the center of Pebble's claims but the mine developer says it has not been able to get key records that he created.
Holland authorized a subpoena to force North – as a former EPA employee -- to testify, but Pebble has been unable to find him.
"If PLP cannot locate North, then it may be necessary to seek communications from other nonparties who communicated with him 'off the books,' " Pebble said.
If it needs to pursue those materials, it will be through a limited use of subpoenas, to comply with the Nov. 18 order, Pebble said.
Alaska Dispatch Publishing