May 2012 Legal Brief

Dear Friend,

Trustees for Alaska works strategically to address some of the most important environmental issues affecting Alaska. We represent a wide range of clients from native villages, community and citizen groups, local and national conservation groups, statewide coalitions, hunting and fishing groups, as well as individual Alaskans.

Please read on to learn more about Trustees for Alaska and how to support our important work.

Sincerely,
Trish Rolfe Executive Director

This issue: May 2012 – Alaska Brief – Environmental Newsletter

State and Pebble Limited Partnership Seek Nearly $1 Million in Attorneys’ Fees and Costs

Trustees for Alaska filed a landmark lawsuit in July of 2009 challenging the constitutionality of the Alaska Department of Natural Resources’ issuance of exploration and temporary water use permits for the proposed Pebble Mine without public notice or a public interest analysis, as required by Article VIII of the Alaska Constitution. The proposed Pebble Mine poses a lethal threat to Bristol Bay’s priceless salmon fishery and the region’s Native subsistence culture, which has supported the villages for millennia.

A two-week trial was held in December of 2010 before Superior Court Judge Eric A. Aarseth. The judge requested that the parties submit proposed findings of fact and conclusions of law after the trial was over. Trustees for Alaska’s Proposed Findings of Fact and Conclusions of Law may be viewed on our website: www.trustees.org.

Despite the significant and compelling evidence of the actual and potential impacts at the Pebble Project, in September of 2011, Judge Aarseth ruled that the Alaska Constitution does not require the State to provide public notice or issue a public interest finding prior to allowing the intensive use of State land and water resources that has occurred for over two decades at the Pebble site.

The judge held that Nunamta Aulukestai and the other plaintiffs had to demonstrate long-term or permanent harm to resources in order to obtain notice of Pebble exploration and water use activities on state land, or any state analysis of the impacts from those activities before they occurred. The Plaintiffs appealed the decision to the Alaska Supreme Court, on several grounds including a claim that Judge Aarseth applied an incorrect legal standard. The State filed a cross-appeal, challenging the superior court’s decisions denying the State’s motion to dismiss and motion for summary judgment in which the court upheld Nunamta’s right to bring the lawsuit.

Surprisingly — and despite the statutory protection from attorneys’ fees provided when plaintiffs bring a non-frivolous constitutional claim and they lack economic incentive to bring the case — the State and PLP have requested $767,122.56 in attorneys’ fees and $196,355.43 in costs, for a total of $963,477.99. Alaska is unique in that it has the only “loser pays” attorneys’ fees rule in the Nation, but the Alaska Legislature adopted an exception to shield plaintiffs bringing constitutional claims, such as the plaintiffs in this case.

By seeking fees in such an “exempt” case, it appears that the State and PLP wish to make an example of the plaintiffs in the case and deter other legal challenges to the Pebble project. Plaintiffs have strongly opposed the motions for attorneys’ fees and costs, including providing testimony from other plaintiffs like the Alaska Civil Liberties Union, Native American Rights Fund, Northern Alaska Environmental Center, and the individuals plaintiffs regarding the deterrent effect of such an award.

Whatever Judge Aarseth’s decision is on the fee issue, it is also likely to be appealed to the Alaska Supreme Court. The Alaska Supreme Court has previously indicated that if such high fee awards are a deterrent to access to court, such fees and costs would not be allowed because it violates due process.

Read the full May 2012 Environmental Newsletter