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Monday, June 17, 2024 | Back issues
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Judge Quashes Mine’s Subpoenas in EPA Fight

ANCHORAGE, Alaska (CN) - A federal judge on Wednesday denied a mining company's request to compel opponents of a planned mine to turn over communications they had with the Environmental Protection Agency about the project.

U.S. District Judge Russel Holland denied Pebble Ltd. Partnership's motion to compel responses to third-party subpoenas to Alaska Conservation Foundation, Bristol Bay Regional Seafood Development Association and two individuals from Anchorage, Sam Snyder and Bob Waldrop.

"Pebble is 'pushing the envelope' as far as its nonparty discovery efforts," Holland wrote in the 14-page order.

Pebble's legal team blanketed the country with 60 some subpoenas to companies, organizations and individuals involved in the EPA's decision to use its powers under the Clean Water Act to limit mining activity in the Bristol Bay watershed - a decision Pebble is now fighting.

The mining company said it needs the information for discovery in its case against the EPA, arguing the agency's decision process was biased by improper interactions with anti-mining activists. Some of Pebble's subpoenas demanded a decade or more worth of records.

Pebble filed suit against the EPA in June, complaining that the agency violated the Federal Advisory Committee Act requiring a fair and open process in the use of advisory committees. At that time Holland rejected three of four claims, allowing one that focused on the EPA's use of a technical team to go forward.

In this week's ruling, Holland said that "groups cannot be found in violation of the federal law on advisory committees, which governs the behavior of federal agencies, not private interests. He added that the information Pebble wants can be found within the EPA's records, and that looking there will be more convenient and less expensive and burdensome.

Furthermore, Holland said that most of the opponents' communications with the EPA would be "irrelevant" to Pebble's claim of a Federal Advisory Committee Act violation - and could violate the activists' free speech rights.

"Both the District of Columbia District Court and the Ninth Circuit have recognized that discovery such as that sought by plaintiff in this case has the tendency to chill the free exercise of political speech and association which is protected by the First Amendment," Holland wrote.

"Here, the declarations of Alaska Conservation Foundation and Bristol Bay make out a prima facie showing of an infringement upon their First Amendment associational rights," he continued. "In order to get past the First Amendment privilege, plaintiff has to show that what it seeks goes to the heart of its claim and is carefully tailored to avoid unnecessary interference with protected activities. Plaintiff has not done so."

But Holland also said that while Pebble is "pushing the envelope" with its nonparty discovery efforts, he doubted Bristol Bay's contention that they deserved sanctions and attorney fees because Pebble's request was made in bad faith.

"We have been assertive in seeking all sources of information to reveal the facts about EPA actions against Pebble and we will continue to seek documents that support our claims," Pebble spokesman Mike Heatwole told the Alaska Dispatch News, adding that the company still believes the third parties have documents relevant to its case.

In another move on Wednesday, a federal judge in Montana refused to transfer a challenge to the subpoenas filed there Bozeman-based Center for Science in Public Participation to the Alaska court. U.S. Magistrate Judge Jeremiah Lynch said that he would await the rulings in Alaska.

Other subpoenaed third parties located outside Alaska include The Wilderness Society, the National Oceanic and Atmospheric Association, the National Park Service, and the University of Washington. High-end jewelry retailer Tiffany & Co. also received a subpoena due to its policy of obtaining precious metals in a socially and environmentally responsible way.

The Pebble mine project is estimated to hold the world's largest undeveloped deposit of copper ore and "would create 15,000 jobs, contribute $64 billion to U.S. gross domestic product and generate approximately $18 billion in federal, state and local tax revenues," the complaint says.

It is also within the Bristol Bay watershed, which supports the largest sockeye salmon fishery in the world and is home to 25 federally recognized tribal governments who have maintained a salmon-based culture and subsistence-based way of life for at least 4,000 years.

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