Court Seeks More Details On Mine Tailings Case
The Associated Press
05/05/09 - 11:21 AM EDT
DAN JOLING
ANCHORAGE, Alaska (AP) The U.S. Supreme Court asked for supplemental briefs in a case that could set a precedent in how mines dispose of tailings, the waste rock left over after metals are extracted.
Justices on Monday ordered briefs by May 15 in a lawsuit that focuses on the proposed Kensington Mine north of Juneau.
Mine developer Coeur Alaska Inc. in 2005 received permits from the Army Corps of Engineers to dump tailings into in Lower Slate Lake.
That triggered a lawsuit by the Southeast Alaska Conservation Council, the Sierra Club and Lynn Canal Conservation Inc., which said the U.S. Clean Water Act prohibits dumping tailings into lakes, rivers and streams.
The mine developer and the government prevailed in U.S. District Court but the 9th Circuit Court of Appeals ruled for the environmental groups.
The case was argued before the Supreme Court in January, and Tom Waldo of Earthjustice, who represented the environmental groups, said Monday he was pleased that the court was taking such a hard look at the case.
"It's not just the case of one small lake in Alaska," he said from Juneau. "It's the case of every lake and river and stream in the country."
The case hinges on a change of rules during the Bush administration, he said, and whether rules for fill, which historically has been used for bridges, docks, sea walls or other structures useful in water, can be applied to mine tailings.
The environmental groups argued that the rule change did not mean the Clean Water Act would allow dumping of fill into water bodies.
Pointed questions by justices about provisions of the Clean Water Act, Waldo said, indicate they are studying the case carefully.
"It's unusual for the Supreme Court to request supplemental briefs," he said. "They do not do this in very many cases."
Waldo said he thought a final decision might have been coming Monday. One of the other things to be gleaned from the order is that a decision may not come before the court takes a break in June. Eleven cases were argued before the court in January. This was the first and eight others have been decided, he said.
"They were already taking longer with our case than with most of the cases they've heard," Waldo said.
Tony Ebersole, a spokesman for Coeur d'Alene Mines Corp., said the company had received notice asking for additional briefs and they will respond.
A lawyer representing Coeur in January urged the Supreme Court to uphold the tailings permit even though the metal waste would kill all aquatic life. Mining company lawyer Theodore Olson said the waste was more accurately defined as fill, and that after a decade or more of mining, the lake could be restocked with no permanent harm to the environment.
Justice David Souter called that logic "Orwellian" and said the mining company and the Corps of Engineers were "defining away" the problem by calling the wastewater discharge fill.
Other justices, however, noted that an alternative to the dumping would destroy nearby wetlands and create a stack of tailings larger than the Pentagon. Justice Antonin Scalia suggested that the best place for the toxic material might be at the bottom of a lake, as long as it stayed there.
The dispute halted development of the gold mine.
Coeur Alaska investigated an alternative tailings disposal plan developed through mediated talks with conservation groups. It involved mixing tailings with cement and depositing the resulting paste near a beach. According to environmental groups, it would have been a less expensive alternative then completely removing water from tailings and stacking them as a dry product.
Coeur Alaska in October announced that because of new permitting delays, it was abandoning the permitting process for the alternative tailings. Environmental groups contend the company could have been mining gold by now if it had followed through on the alternative tailings plan.
