A Federal judge has tossed out Pebble Limited Partnership’s (Pebble) subpoena issued to Dr. Carol Ann Woody. The subpoena is part of a Federal Advisory Committee Act (FACA) lawsuit filed by Pebble against the Environmental Protection Agency (EPA). This tactic is Pebble’s latest attempt to get personal documents from those opposed to the proposed mine. If the mine were built, it would be one of the world’s largest copper-gold mines. In November 2015, the federal court rejected Pebble’s first attempt to obtain the private communications of Pebble Mine opponents. Pebble has been trying to use the case against the federal government to gain access to the internal strategic discussions of private citizens and organizations who opposed the mine. By rejecting the subpoena to Dr. Woody, the Court has once again stopped Pebble’s harassment of individuals opposed to the mine.
Not only did the Court throw out the subpoena against Dr. Woody, it also tossed subpoenas issued to the Director of Bristol Bay United and another scientist. In the Bristol Bay United decision, the Court noted that Pebble’s claims about rampant document destruction and personal email use at EPA was nothing but speculation. Such speculation cannot support harassing third parties for documents. The Court also repeated that Pebble was on a fishing expedition and was “pushing the envelope” with its broad overreaching discovery requests to non-parties. The Court admonished Pebble last year for the same kind of overreaching when it sought information from over 60 groups and individuals (including Trustees for Alaska).
For the past few years, Pebble has waged an aggressive battle against its political opponents in both the federal court and on Capitol Hill. Just one of Pebble’s federal court battles accuses the EPA of violating FACA, an open meetings-type law that prevents federal agencies from assembling secret committees to advise them on particular agency actions. Pebble is unhappy with EPA’s proposal to use Section 404(c) of the Clean Water Act to protect the world class Bristol Bay watershed—home to the largest sockeye salmon fishery in the world—from the proposed Pebble mine. Displeased with any potential restrictions on the proposed mine, Pebble decreed the public process unfair and biased.
In July 2015, Pebble issued subpoenas to more than 60 groups and individuals, almost all of whom opposed the Pebble Mine. With those subpoenas, Pebble demanded access to 11 years’ worth of private communications and documents. The Court threw out several of those subpoenas because the requests were too broad, entirely unreasonable, and asked for irrelevant information. More importantly, the Court found that Pebble was trying to obtain communications from opponents of the Pebble Mine that are protected by the First Amendment. Once the court ruled, Pebble quickly withdrew all of the subpoenas it had issued to mine opponents. But Pebble was not deterred by the Court’s decision for long. This past spring it issued a second round of subpoenas to some of the same Pebble opponents, including Dr. Woody, seeking similar information.
In the recent decision on the Director of Bristol Bay United’s subpoena, the Court again reminded Pebble that the focus of its allegations are against EPA, and not the general public. The Court’s quashing of these subpoenas is not just a victory for Dr. Woody and the other individuals, but for all of those groups and individuals who worked tirelessly to exercise their First Amendment rights to speak out against the Pebble Mine and ask that EPA take steps to protect Bristol Bay. Tossing out these subpoenas sends the message that individuals can participate in government decision-making as part of well-recognized public notice and comment processes without having to worry about being dragged into Court with overly broad subpoenas.
The Pebble Mine poses a tremendous threat to the world class fisheries of Bristol Bay. There were, and continue to be large-scale and often times coordinated campaign and advocacy efforts aimed at countering Pebble. With their first round of subpoenas, Pebble wanted the Court to require those groups and individuals exercising their rights to oppose Pebble in a public EPA decision-making process to hand over all of their private communications, computers, and paper documents. The Court blocked Pebble’s access to those private documents, and when they tried to do it again to Dr. Woody, the Court has again rejected it.
Attorneys: Michelle Sinnott, Valerie Brown