Dave Schade And The Decision Over Coal, Salmon, and the Middle Fork Tributary To The Chuinta River

Organizing a post is often a problem.   For example, I went to a reception at UAA for grad students in the College of Business and Public Policy (CBPP) yesterday and now I'm asking myself:

1.   Should this be one post (about the UAA reception)?
2.   Or several posts about the different aspects I found interesting?

The problems are exacerbated by how long it takes to upload to Youtube (a movie over a minute or two takes a while on my slow upload connection.)  This is all a preface to what's below. [As I'm about to post this, several hours after I began it, I realize this will only focus on one of the people I met yesterday and the hearing he will conduct tomorrow over conflicting mining and salmon claims in the Middle Fork tributary of the Chuitna River.]

The College of Business and Public Policy has a several masters degrees - public administration (MPA), business administration (MBA), and one in global supply chain management (MS) - and the reception was for new students to be able to meet other students, alumni, faculty, and staff.  I was invited as a faculty emeritus and now sometimes adjunct faculty member.  Lots of things caught my eye and ear, but one in particular, is very timely, so let me start [and finish] with that. 

Alaska Public Radio had a piece on the Chuitna dispute between salmon and coal back in June.  Basically, as I understand this, it's about whether Pacific Rim Coal's mine in the area will negatively impact the fish in the river and if so, whose legal claim to the water and resources is stronger.  Read the article linked above to see about the conflict between traditional and reserved water rights.  There are also a few comments by Dave Schade (pronounced Shady), Chief of Water Resources for the Department of Natural Resources (DNR).  I only found that piece while writing this post.  But I did read Schade's name in the August 7, 2015 ADN article.

Dave's name jumped out at me because he was one of my students in the MPA program back in the early 1990s.  I hadn't seen him since then.  And it didn't occur to me that he'd be attending the grad student reception.  He was there at the invitation of his niece Kaitlin who is a student in the MPA program now.

I remember Dave as a strong and independent student.  By independent I mean he wasn't wedded to any particular ideology.  He was born and raised in Alaska and has a firm sense of himself.  As a student I recall he listened and read and thought and came to his own conclusion.  All he would say to folks last night about Friday's public hearing at the Federal Building Annex was that he's got criteria spelled out in the law and it's his job to try to match the facts to the criteria (see bottom of the post) and then make a decision, by the court mandated deadline of October 6.   Pretty much the kind of thing taught in the MPA program - that such decisions have to be based on the 'rule of law' -  meaning that decisions are based on the appropriate law, regulation, or professional standards that most closely govern the situation.  Not by personal preference or arbitrary whim.   I haven't followed the Chuitna River issue in detail, but there does seem to be a bit of room for interpretation, and even there Schade will, I'm sure, explain why he leans one way rather than another.

OK, as I'm writing this, it's clear that there's enough here to make this a post all by itself.  I've got the agenda for tomorrow's (Friday August 21, 2015) meeting from Alaska Business Monthly.

The current hearing agenda is as follows:
8:45 a.m. – 8:50 a.m.             Introduction of Hearing Officer and Panel
                                               Instructions regarding hearing process
8:55 a.m. – 10:25 a.m.            Chuitna Citizens Coalition Inc.
                                                Trustees for Alaska
10:35 a.m. – 11:35 a.m.          Pac Rim Coal LLP
12:25 p.m. – 12:55 p.m.         Cook Inlet Keeper
1:00 p.m. – 1:30 p.m.             Alaska Center for the Environment
1:35 p.m. – 2:05 p.m.             Alaska Mental Health Trust Authority
2:10 p.m. – 2:25 p.m.             Alaska Conservation Trust
2:30 p.m. – 2:45 p.m.             Alaska Miners Association
2:50 p.m. – 3:05 p.m.             Alaska Oil and Gas Association
3:10 p.m. – 3:25 p.m.             Council of Alaska Producers
3:30 p.m. – 3:45 p.m.             Howard Grey
3:50 p.m. – 4:05 p.m.              Resource Development Council
4:10 p.m. – 4:25 p.m.             Chuitna Citizen’s Coalition Inc. – Applicant’s final comments
4:25 p.m. – 4:30 p.m.             Hearing Officer’s Closing Comments

It will be held in the Anchorage Federal Building Annex (222 W. 8th) conference room.  

I tried to find the agenda on the Department of Natural Resources website to be sure it was accurate, but couldn't, so I called their information office, and they couldn't find it and asked if I wanted to talk to Dave Schade.  I smiled to myself and said, 'Sure."  Dave said the agenda was sent out to all the parties involved but not posted online.

Schade:  I'm hoping that we'll get some new information from the testimony.
Steve:  Are there any information holes you're specifically hoping to fill?
Schade:  Now you're asking for specific comments.
Steve:  No, not asking what the holes are, but just if there are any.  

So he offered to send me a copy of the letters he sent out to the parties.

First is the most recent letter which has the agenda (with breaks included) and goes down into administrative details about equipment presenters might need. 

Middle Creek Hearing Letter And Agenda - August 21, 2015

The June 23, 2015 letter narrows the scope of the testimony to objections that have already been made to
1.  to some part of the DNR analyses, and
2.  to granting the reservations

It also addresses the issue I raised above - about information holes DNR might want to fill.  Specifically it identifies questions DNR might ask:

• how particular objections relate specifically to each application under consideration
• what back up information supports particular objections
• what is the basis for any legal or constitutional argument being made
• what timelines or processes an objector might suggest as an alternative to a timeline or process objected to
• how DNR should consider particular objections in relation to the criteria set out in AS 46.15.080 (see bottom of the post)

Alaska Middle Creek Reservation of Water Objection Hearing Notice by Steve

I have to say that from what I can see in these letters, that Schade has spelled out the process in detail for participants and given a sense of the kind of questions they might be expected to respond to. 

They've had this information since June, giving them sufficient time to prepare.  And the things he's asking are what any MPA student is taught to ask for - supporting information for claims, alternatives to things they object to, and the legal basis for their claims.  I remember a student once in class, after I'd asked a question, got an answer, then followed the answer up with "Why?", saying, "I knew you were going to ask that." That 'why?' should be automatic to people doing this kind of work.   Dave needs all the supporting information he can get to be able to make his decision on this.

Since he mentions the specific criteria he's requred to use, I thought I should look them up and post them here. 

AS 46.15.080. Criteria For Issuance of Permit.

(a) The commissioner shall issue a permit if the commissioner finds that

(1) rights of a prior appropriator will not be unduly affected;

(2) the proposed means of diversion or construction are adequate;

(3) the proposed use of water is beneficial; and

(4) the proposed appropriation is in the public interest.

(b) In determining the public interest, the commissioner shall consider

(1) the benefit to the applicant resulting from the proposed appropriation;

(2) the effect of the economic activity resulting from the proposed appropriation;

(3) the effect on fish and game resources and on public recreational opportunities;

(4) the effect on public health;

(5) the effect of loss of alternate uses of water that might be made within a reasonable time if not precluded or hindered by the proposed appropriation;

(6) harm to other persons resulting from the proposed appropriation;

(7) the intent and ability of the applicant to complete the appropriation; and

(8) the effect upon access to navigable or public water.

 You can see there's a bit of room for interpretation - words like 'adequate' and 'beneficial.' 'Public interest' at least is spelled out.  A good public administrator will wrestle hard with the law and the facts trying to come up with the most defensible decision possible.  There are some close calls where both sides have strong claims and where two different hearing officers could come up with different, but justified, conclusions.  And then there are decisions where the answer if fairly clear cut. 

You can get more background information from Pacific Rim Coal , the coal mine developers, and from Inlet Keepers, a keep opponent of the mine.

You can also go to the hearing tomorrow.  Testimony is limited to those parties who have already been involved, but the public may attend and listen.

And one final comment.  The  Water Resource Section of the Division of Mining, Land & Water, of the Alaska Department of Natural Resources, is just one of the government agencies that have some sort of jurisdiction over this project.