Superior Court rules state violated rights in delay on water reserve ruling

By Carey Restino
Homer Tribune
The Superior Court ruled that the State of Alaska’s Department of Natural Resources unreasonably delayed action on an application by the Chuitna Citizens Coalition aiming to protect salmon habitat by ensuring adequate water flow in the Chuitna River.
In its ruling, signed by Anchorage Superior Court Judge Mark Rinder, the Superior Court noted that the state violated Chuitna’s due process rights, and said that while the state’s argument that it was lacking resources needed to process the application, the subsequent four-year delay was inexcusable.
“A lack of resources cannot excuse four years of complete inaction, other than litigation,” the court wrote in its ruling, ordering the state to begin adjudicating Chuitna’s application within 30 days of the order.
The ruling is a triumph for those involved in the battle to protect the Chuitna River watershed, where a coal strip mine is proposed by PacRim’ Coal. Located on the west side of the Cook Inlet, the mine would be the first project in state history to run directly through a wild salmon stream, opponents say.
“Today’s ruling is a victory for every Alaskan who wants to protect wild salmon and the Alaskan way of life,” said Ron Burnett, a fisherman, hunter and founding member of the Chuitna Citizens Coalition, in a written statement. “Time and again, the state of Alaska has put the interests of Outside mining interests ahead of the rights of Alaskan residents. This decision should help restore the balance.”
Opponents flied an application for instream flow reservations in August of 2009 with the Department of Natural Resources. The application was intended to ensure adequate water flow for wild salmon in the area of the proposed coal mine. But the state opted not to take action on the application, although it did accept the coalition’s $4,500 nonrefundable fee as part of the application, something the courts also took exception to.
“DNR’s argument also fails to justify charging IFR applicants a fee and then taking no action on their application,” the court wrote in its ruling. “Were DNR requiring payment once it was going to take action on the application, the circumstances might be different. However, DNR charged Chuitna a $4,500 nonrefundable fee as part of its application and that fee, along with Chuitna’s application, has disappeared into DNR’s files and the State’s treasury. There is no excuse for DNR’s charging an application fee and then taking no action.”
Opponents of the proposed coal mine accused the Parnell administration of failing to protect salmon habitat, something they say is substantiated by potential changes to the way Alaskans may comment on natural resource permitting decisions through House Bill 77.
“The Parnell Administration knew it was breaking the law when it denied our efforts to keep water in our fish streams, and now it wants to change the law with HB 77 rather than allow Alaskans to protect our salmon,” said Burnett in the release. “This is part of a steady and deliberate effort to silence Alaskans in basic decisions governing our natural resources.”
The state court took issue with the fact that during the time that the Chuitna coalition’s application remained in limbo, the state issued water use permits to the coal company.
“We had to spend a lot of time and money simply to get DNR to obey basic safeguards to protect wild salmon,” said Burnett. “It shouldn’t be this hard to get the Parnell Administration to protect salmon habitat.”
The state did not rule with the group on all counts, however, dismissing several counts in the case, including allegations that the state violated state mandates, constitutional requirements for equal treatment and other constitutional provisions.
Earlier in the summer, the state denied a petition to make the Chuitna watershed a mine-free zone, citing lack of evidence supporting the claim that it was impossible to reclaim salmon streams.
Those opposed to the Chuitna Coal Project, a surface mine proposed near Tyonek on the west side of the Cook Inlet that includes the removal of 11 miles of stream bed where salmon have been documented, say it’s impossible to reclaim a stream and protect the salmon that use it after mining.
The back-and-forth between citizens groups opposed to the Chuitna Coal Project, which include the coalition and Cook InletKeeper has been going on for several years since PacRim Coal started the process of applying for permits for the mine. The state is currently working with PacRim Coal on its Environmental Impact Statement, which is expected to take another year before state agencies get a chance to comment, according to Ed Fogels, Deputy Commissioner of the Department of Natural Resources.
Requests for comment from the Parnell Administration were unreturned Tuesday, though the state told other news agencies last week it was reviewing the decision and considering whether to appeal.

Contact the writer
Posted by on Oct 22nd, 2013 and filed under Business. You can follow any responses to this entry through the RSS 2.0. Both comments and pings are currently closed.

Comments are closed

Like us on Facebook