As expected, Dunleavy Pebble appeal falls flat

It was clear from the start that the appeal of the Pebble Mine permit denial by the Dunleavy administration was an appeal for publicity, not a serious challenge to the decision by the Army Corps of Engineers.

That’s because the clear language in the federal rules require that an appeal can be made only by an “affected party” and the state did not qualify under the definition spelled out in regulations.

The Army Corps of Engineers rejected the state’s attempted appeal Feb. 24, pointing out that the state has no standing to pursue an appeal because it did not have a permit denied.

The rejection of the Pebble permit was also challenged by the mine developers, who do qualify as an “affected party,” an appeal proceeding that is in process.

I wrote here a month ago that the state appeal, which was clearly destined to fail, read like something the mine promoters could have written.

In a Dunleavy administration meeting in early August, administration officials and Pebble representatives talked about limiting development on about 112,000 acres of state land to satisfy the Corps of Engineers.

The state mentioned the 112,445 acres only once in its appeal in language that points to what was at least a secret handshake deal with Dunleavy.

“Despite the fact that the onerous compensatory mitigation requirement—if implemented—would necessitate the encumbrance of approximately 112,000 acres of state lands, the District (Army Corps of Engineers) did not involve the state in its review of the CMP (compensatory mitigation plan) and did not provide notice to the state that it decided to reject the CMP,” the state attorney wrote.

The state appeal was written for former Attorney General Clyde “Ed” Sniffen by Ronald Opsahl, a Colorado attorney hired by the state in November who has strong opinions about “liberal courts” and “radical environmental groups.”

Opsahl either didn’t read the federal regulations, or, as is more likely, he just ignored the details he didn’t like. The state did not meet the requirements to be an “affected party” under the federal rule.

Dunleavy made a big show of the appeal in January, which led to unquestioning news coverage that treated the move as a genuine administrative action, despite the state’s lack of eligibility, which was the real story.

“The flawed decision by the Alaska District (of the Army Corps of Engineers) creates a dangerous precedent that will undoubtedly harm Alaska’s future and any potential project can fall victim to the same questionable standards,” Dunleavy said in a press release that got wide circulation.

Dunleavy responded to the Feb. 24 rejection of the state’s flawed appeal with the same kind of overheated language, another appeal for publicity.

“This is another example of the federal government imposing a flawed decision that blocks Alaska’s ability to responsibly develop its land and resources,” he said.

“That authority and obligation were laid out in the Alaska Statehood Act and the Alaska Constitution, so I can’t overemphasize the far reaching implications that federal decisions like this have on our ability to have a sustainable and growing economy. This is a precedent setting decision that puts all possible resource development projects on State land at risk and cannot be accepted. We will not stop fighting for Alaska’s economic prosperity.”

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