The Department of Natural Resources today (Friday) asked a Dillingham Superior Court to reconsider a decision ten days ago concerning a challenge to the Pebble Mine. Judge Fred Torrisi denied a motion to dismiss a case brought by the Nondalton Tribal Council and other plaintiffs who said the Murkowski’ administration’s reclassifying of land around the mine for development was improperly done.
The state had argued that Nondalton and the others should have taken their case through the Administrative process – not to court. But the court disagreed, saying the department’s area plans are the equivalent of regulations.
Assistant Attorney General John Baker says the court went beyond established procedures and statutes in making its decision. He says treating all land management plans as regulations would have far-reaching, possibly unintended consequences beyond just the Pebble project.
Area plans and management plans are not adopted under the procedures required by the administrative procedures act. Those are statutory procedures for regulations. And our area plans a management plans are not adopted under those procedures. So our concern is that they would all be susceptible to an argument that if they are regulations, they are invalidly adopted regulations. And the concern would then be that the plans themselves could be invalidated.
Baker says management plans have distinct procures that need to be followed before they go into effect. If the system is changed, all land management plans could be challenged directly in court.
We can speculate as to the extent of that, but we don’t have any control over who might bring a claim like that or under what motivation.
He says the state’s argument has always been that the opponents to the Pebble Mine – or any other project – do not have to look at the area plans as regulations. He says they will still be able to make their arguments and still have input into the management system.
The next step is up to the court. Judge Torrisi can order more hearings or he could reconsider the decision based on information already filed.