Summary Of The 10 Chuitna Decision Appeals, Plus The Actual Docs, And What's Next?

First, A Brief Overview Of What's Transpired And What's Coming Next 

PacRim is "a Delaware Corporation owned by Dick Bass and William Herbert Hunt"developing a 300 million ton coal mine across the inlet from Anchorage on Alaska Mental Health Trust  (AMHT) land..  Chuitna  Citizens Coalition (CCC)  had applied for three water reservations (actually instream flow reservations or IFRs) to protect the water and salmon from the future coal mine.  They were granted one for the Lower Reach of Middle Creek which is outside the proposed mine area.  The other two requested water reservations  - Upper Reach and Middle Reach - are in the proposed mine area and those applications were denied.  [Note: The PacRim website says nothing about who owns the company, so I had to get that information from the CCC website.]

CCC was given one of the three IFR's they applied for.  PacRim and other development and mining groups who opposed all the IFR's had 20 days to appeal the decision.  The deadline was the day before yesterday - Monday, October 26.

A total of ten appeals were submitted to the Department of Natural Resources (DNR) Commissioner Mark Meyrs Monday,  opposing the decision by DNR's Water Division head to grant one (of three) applications for water reservations on the  Middle Creek (also known as Creek 2003). The commissioner's office emailed me copies yesterday.


I also spoke to David Schade, the head of the Water Division, and the person who made the Oct. 6 decision.  He told me the decision was unique in that the decision will grant a community group a certificate for a reservation of water, something the various resource development organizations strongly protested at the October 6, 2015 hearing.  And it's an argument that is echoed in nearly all their appeal letters.   He also told me that  the DNR Commissioner has at least three options:

1. Uphold the decision;
2. Remand it back to the water division in whole or in part; and
3. Change the decision

There's no specific time limit for the decision and it might take awhile.   Schade also said having so many objectors was unique.

So, while this decision gets appealed, PacRim, presumably will continue the work of getting all the various permits from the different state and federal agencies.  Schade said PacRim had applied for 44 water rights and these were 'substantially complete' but additional information will be required before the Water Section will review them and, at the same time, a Chuitna River Reservation of Water application which was filed by the Alaska Department of Fish and Game.  Before then, there will be other permit decisions coming in from the US Army Corps of Engineers, the Department of Environmental Conservation, the Mining Section of the Alaska Department of Natural Resources, Division of Mining, Land and Water, and from the Alaska Department of Fish and Game.  After these permitting processes are substantially complete, then the water right applications can be adjudicated.

So, I asked, since the two CCC applications were denied because there was not enough information, will they be able to reapply when the competing PacRim applications are complete?
No, he said.  Those are done.  But DNR is required to protect the public interest including all other competing water rights and impacts on the watershed.   CCC will be able to oppose the PacRim applications just as PacRim and others opposed CCC's applications.

Synopsis Of The Arguments Against The Decision And The Full Letters

I've tried to briefly summarize the key arguments each group or person that appealed the water reservation decision.  Some were easier to do than others.  In any case,  each synopsis is followed by the group's appeal letter, so you can check the details yourself.

1.  Alaska Miners

• Delegation of DNR Regulatory Authority to private group wrong
• “Need” for awarding water reservation not met
• Instream flow reservations as a tool to stop resource development wrong
• Permitting uncertainty

Alaska Miners - Chuitna Water Reservation Appeals by Steve

2. Alaska Mental Health Trust - They own the land and stand to earn substantial revenue from a mine which they can use to support mental health in Alaska.

• The Trust must develop its lands to improve its ability to meet Alaskans’ mental health needs, but its power to do so would be threatened by overly expansive regime of reserved water rights.
• There is no need for a reservation of water rights in Stream 2003
• Granting CCC a reservation of water rights in the Lower Reach of Stream 2003 is contrary to public interest
• If the Commissioner affirms the Division’s decision, he should clarify the scope of the reservation and how it will be administered.
• The Commissioner should deny the reservation requested for the Lower Reach

Alaska Mental Health Trust - Chuitna Water Reservation Appeals

3. PacRim  The mining company that wants to develop the mine.

• “ CCC did not demonstrate that a need existed for a reservation.”
• “DNR used an approach to determine stream flow that lacked transparency, that has no correlation to the level of water necessary to protect fish and fish habitat, and which could require PacRim to maintain stream levels below the mine area that generally do not naturally exist in the Lower Reach of Streem 2003”
• “DNR’s public interest analysis was flawed because it did not evaluate fisheries information for the Lower Reach and failed to address the potential impact of the reservation on upstream users such as the proposed Chuitna Mine”
• “DNR’s decision establishes a troubling precedent that transforms private citizens into regulators of natural resources projects.”

PacRim - Chuitna Water Reservation Appeals by Steve

4. Pacific Seafood Processors Association

• “Water is a public resource and PSPA believes it is in the public’s best interest that reservations be held by public entities that are formally accountable to the public.”
• “the public interest, through the formal public processes, is best served by balancing the trade-offs of public interests such as conservation impacts, economic benefits, and opportunity costs.”

Pacific Seafood Processors Association - Chuitna Water Reservation Appeals by Steve

5. Alaska Oil And Gas Association (AOGA)

• DNR cannot abandon regulatory supremacy
• Applicant fails to meet threshold “Need” Requirement
• Decision represents an invitation for further frustration
• Decision discourages investment in Alaska

AOGA - Chuitna Water Reservation Appeals -

6.  Howard Grey  (Involved in Alaska development, former board member of Alaska Miners)

• “we should consider whether or not the applicant is qualified to administer water resources management duties”
• “we should look at the surrounding ownership to determine if such conveyance will affect the upland owner’s future use and enjoyment of the area or will they be stymied by the proposed segregation?
• “we should consider whether or not the proposed conveyance is in the best interest of the public.”

Howard Grey - Chuitna Water Reservation Appeals

 

7.  Council of Alaska Producers (“trade association for large metal mines and major metal development projects in the state”)

• “It is fundamental that the State should never delegate authority to a private party to manage these resources, because agencies are accountable to the public and elected officials, but private citizens are accountable to no one.”
• “…DNR must find - that a “need” exists for the reservation.  The applicant failed to do this and DNR’s analysis of the “need” relies of unsupported conclusions about hypothetical impacts where no water from Stream 2003 reaches the Chuit River"

Council of Alaska Producers - Chuitna Water Reservation Appeals

 


8.  Resource Development Council

• Creates further uncertainty in Permitting Process
• Undermine existing regulatory process and set dangerous precedent for community and resource development projects
• Jeopardize investment
• Tool for anti-development groups to stop projects
• Delegation of Public Resources to Private Citizens

RDC - Chuitna Water Reservation Appeals

9.   Borrel Consulting Services  ("Heart and soul of the Alaska Mining Industry")

• No need has been demonstrated
• Robust permitting process already exists, and this reservation process undermines that.
• This loose application of the statute and regulations will likely result in future infringements on private and Native-owned private lands.
• Not following proper procedures (not requiring a need) is bad precedent.
• DNR can’t disregard clear requirement to demonstrate a need

Steve Borrel - Regulation, Alaska, Chuitna, PacRim, Coal Mining

10.  Alaska Chamber

• “DNR is abdicating its statutory responsibility, not to the whole of Alaska’s citizens, but to specific individuals, some not even residing in our state.  This is a decision that assaults the very foundation of the State’s regulatory process.  It pulls resource management from the public interest and concentrates that authority in the hands and interests of individuals.
• This striking, precedent-setting reservation is in direct conflict with the department’s published mission to “develop, conserve and maximize the use of Alaska’s natural resources and lawful 
• processes . . .”

Alaska Chamber - Chuitna Water Reservation Appeals by Steve

I'll try to analyze the arguments in a future post.  But I have some calls I'll need to make before I can do that. Meanwhile you can look at past posts on the Chuitna mine project here. [Reposting because of Feedburning problems]

At Least Eight Appeals Received By DNR On Chuitna Water Reservation Decision

I've been planning to do an update on the Chuitna Decision, but I needed to go through it carefully and figure out reasonable questions.  I thought I'd ask David Schade, the head of the Water Division, who signed the decision and then some of the other interested parties. 

But life happens and I only got through to David today.  We haven't had a chance to discuss my questions, but he did tell me that he'd been told there were eight appeals by late this afternoon - people had 20 calendar days to get appeals in, and the decision was on October 6.  He hadn't seen them yet, so he didn't know who submitted them. 

Here are some of the kinds of questions I had:

1.  Was this decision a postponement of the decision or a denial?  It seems to me that at one point the decision says that the Upper and Central fork portions of the Middle River, which are in the proposed mining area, are ripe for decision yet because the the mine's water reservations aren't complete.  That sounds like things are postponed.  But elsewhere it says the reservations have been denied, which sounds final. 

2.    What is the state of PacRim’s water reservation applications?  Different references were made to their applications but it wasn't clear where they were.
- not ready to be submitted because not enough info?
- have they submitted incomplete applications?  What does this mean?
- if submitted, when were they submitted?


3.  The Department finds that it is in the public interest to allow the PacRim permitting review process to be completed, and therefore that it would not be in the public interest to issue a reservation of water on the Main or Middle Reaches of Middle Creek/Stream 2003 at this time.
Is this a logical fallacy?  If one is in the public interest, does that automatically mean the other isn’t?  What this does seem to be saying is that if the reservation is issued, the permitting process would end.  

4.  Can PacRim really close down the Middle Fork above the Lower Reach and divert the water around and back to the Lower Reach and this won't harm the salmon?  Is there a difference between naturally flowing stream water and water that goes through culverts and how does that impact the quality of the water when it gets returned to the natural water way?  And how long would the water be cut off from the Lower Reach while this is being constructed?  Or are those questions people are still waiting on answers for?


There are more questions, but this gives you an idea.  The Oct 6 decision is linked at the earlier post on this.

Chuitna Citizens Coalition Gets Rights on Lower Reach of Middle Creek/Stream 2003 But Not Main And Middle Reaches

 The decision is just out.  Here's the DNR press release with links to the decision.  Haven't had time to figure out what it means.  At first glance this looks like a cutting the baby in thirds decision that will leave everyone dissatisfied, but then the parts of the Creek where rights weren't granted, it seems, weren't denied, but deferred because "they were not ready for decision."  

[Note at 11:17am same day after a little more careful reading:  It also says at the end:  "We will not approve significant impacts to the Chuitna River."  The mine plans to excavate thousands of acres 300 feet deep, including parts of the river.  They then say they will restore it after the coal mining.  But shutting down of the river - even if they actually can restore it later - has to qualify as "significant impacts" and so this seems to be a significant win for the Chuitna Citizens Coalition.]


Here's the press release: (with links to the whole decision)

"Decision reached on water reservation applications in Chuitna River watershed

The Division of Mining, Land & Water has issued a decision on the Chuitna Citizens Coalition Inc.'s three applications for instream flow reservations for Middle Creek/Stream 2003, a tributary of the Chuitna River. Two of the applications are for segments of the stream located within the footprint of the proposed Chuitna Coal project.
After review of the facts in the administrative record, public comments and hearing, the decision grants the Chuitna Citizen Coalition's application for the lower reach of Middle Creek/Stream 2003 but does not grant its applications for the creek's main and middle reaches. This decision does not award any permits or water rights to the proposed coal project.
This decision is a reasoned approach that reached conclusion on the lower reach of Middle Creek/Stream 2003 while denying the applications for reservations on the main and middle reaches because they are not ready for decision. The division cannot not yet determine, on this incomplete record, which of the competing applications for the same water would be subject to a preference as the most beneficial use. The division will adjudicate any remaining requests for water rights or instream flow applications in the Chuitna River watershed after the Clean Water Act 404, Surface Mining Coal Regulatory Act (SMCRA) and Title 16 fish habitat permits are done so that we can consider impacts to the watershed by an approved mine plan. We will not approve significant impacts to the Chuitna River. [emphasis added]

Please review the following documents to better understand the decision.

• October 6, 2015 Decision on water reservation applications for the Chuitna River watershed (PDF)
• Map of Middle Creek/Stream 2003 with reservation application reaches identified (PDF)

• October 7, 2015 Press Release (316 KB)"

OK, that's it for now.  The mine company, PacRim, and the various other opponents flat out said the reservation should be rejected, so in that sense it's a loss for them and a win for the Chuitna Citizens Coalition, but I hate to talk in terms of wins and losses.

This is not over and the decision is likely to be challenged in court. 

Dave Schade To Sign Chuitna Decision After Hours Tonight - To Be Posted Tomorrow Morning - Memos and Maps

As a blogger who works from home or wherever I happen to be, but basically without colleagues, I sometimes feel like maybe something happened but I didn't know about it.  I did google around to see if the Chuitna Citizens' Coalition application for an Instream Flow Reservation had been decided on before posting last night that the decision was due today.

This morning I checked the DNR webpages and also the Coalition's Facebook page, but there were no announcements.  I called the Chief of the Water Resources Management Unit, Dave Schade, who is the person who has to sign the decision.  His phone said he's out of the office for a week or so.  So I tracked down someone else and left a voice mail.

Elizabeth Bluemink called me back a bit ago to say that Schade will sign the document around 8pm tonight and that it would be posted tomorrow morning.  In the meantime, she's sending out copies of documents that are related but don't talk directly about the decision.

So I've posted them on Scrbd and embedded them below so you can look for clues to what the decision will be.

1.  A memo to the Commissioner of DNR called a primer on Types of Water Use.  This is sort of a Water Use for Dummies version that's pretty straightforward.  As I read it - having been to the objections hearing, but without any specific expertise here - it sounds like the opposition's arguments that the application should be simply denied was a lot of smoke.  But I'm sure there are subtleties here I'm missing.  Judge for yourself. 

2.  A list of water reservations certificates in Alaska.  There are 75 bodies of water listed (mostly rivers, then creeks, then lakes) and 131 certificates.

3. A map of the Chuitna Coal Mine project - which I can't totally make sense of.  I think my problem is that this is about the mine and doesn't identify the area where the Chuitna Citizens' Coalition is applying for the IFR.  But maybe I'm just missing it.

4.  The memo sent out to notify potential objectors to the reservation that the hearing would be held.  I don't have that up in this post, but I did post it before the hearing and have it at Srbd already.

Alaska DNR Types of Water Use Memo 9-30-15

Alaska Water Reservation Certification Status 09-29-2015

Chuitna Coal Mine Project Map - Alaska

IFR, Fish v. Coal: The Chuitna Water Decision Due October 6

Tuesday, Oct. 6, 2015 is the court ordered deadline for the Department of Natural Resources to make its decision on the Instream Flow Reservation application by the Chuitna Citizens Coalition.  I did a brief post during the lunch break for the hearing back in August and was hoping to try to give a better sense of what was argued.  But as a presidential candidate recently said, "stuff happens" and I didn't get around to it.

But tomorrow the decision is due and so I feel a need to at least say something here.  For a more organized view of the hearing itself, you can check Zaz Hollander's ADN article. 

Above everything, you need to understand what an IFR application is, because this hearing was about such an application.

This is important if you are to understand anything about this, because those opposing the application from the Chuitna Citizens' Coalition argued they had no business filing for this application in the first place and that DNR has only one option:  to reject it.   So Read Carefully.

So here's from DNR's own website:

What is reservation of water for instream use? A reservation of water for instream use is a water right that protects specific instream water uses,such as fish spawning or recreation. It sets aside the water necessary for these activities and keeps later water users from appropriating water that may affect the instream activity. Water can be reserved for one or more permissible uses on a particular part of a stream or lake during a certain period of time. Under AS 46.15.145, permissible instream uses include: Protection of fish and wildlife habitat, migration, and propagation Recreation and parks Navigation and transportation Sanitation and water quality A reservation of water for one use may also allow that same water to be used or reserved for another purpose. For example, a reservation for recreation may also benefit fish spawning. Like an out-of-stream water right, an instream reservation of water is similar to a property right. It cannot be abandoned,transferred, assigned, or converted to another use without approval of the Department of Natural Resources. Who can apply for a reservation of water? Private individuals,organizations, and government agencies may apply for a reservation of water for instream use.

Underlying Conflict

Essentially, the hearing exemplified the two narratives that were spelled out by sociobiologist E. O. Wilson's two narratives as he spells them out in his book The Future of Life.

"It's a battle between two narratives:

Narrative 1:

The free market is the most economical system for bringing prosperity to the world and government regulation just screws things up.

Narrative 2:
The free market has many positive benefits, but it also commodifies our collective resources resulting in the catastrophic destruction of the Earth's species and if we don't stop this trend immediately, we will destroy those things that makes life possible on earth."

 Essentially, the testimony given by the Chuitna Citizens' Coalition followed Narrative 2.  The testimony by PacRim and their supporters was based on Narrative 1.

It's sort of like the flat earth battling the round earth people.  Their predictions will be wildly different because they are beginning from wildly different assumptions about the nature of the world.  


This is going to be pretty quick and dirty because I squandered the month I had to write this.  (Presumably DNR's decision maker on this, Dave Schade. made better use of his time than I have.)

Background
PacRim proposes to build a mine.  Part of the plans call for them to excavate down 300 feet for thousands of acres, essentially wiping out the river.  Then they plan to restore that river to better than it was.  The Chuitna group doesn't believe that can happen.  They're applying for an instream flow reservation mainly because they are concerned about the salmon whose path to the tributary will be interrupted for the years that the mine exists. 

Also, there are different water bodies referred to.  There's the Chuitna and then the tributaries. 

Some issues that were raised at the testimony:

Procedural Issues

1.  PacRim argued that the Chuitna Citizens' Coalition shouldn't even be able to apply for an IFR.  They said this amounted to private citizens taking over public policy decisions the state should make.  CCC argued they would get no regulatory power, only the right to protect the river by getting the state to enforce their IFR.

2.  PacRim argued it's too early for them to apply for their own permit and CCC's permit shouldn't be reviewed until they are ready to have a competing permit.

3.  PacRim argued that if CCC got the IFR, it would kill the mine.  CCC argued PacRim's process could then keep going, but PacRim reps said their financial backers would all pull out because it would show the state opposed the mine.

4.  PacRim took the unusual position for a coal mining company (and it was echoed by the other resource extraction groups that testified) that the state and feds had excellent, rigorous regulatory processes that should be followed through that will protect the public and thus this IFR application was not only unnecessary, but counter to the process.   I don't recall so much praise for regulation by such organizations ever before. 

Measurement Issues

1.  Technical data about river, fish, flow, etc.  PacRim said that CCC's application was invalid because they had no data.  And what they had was methodologically flawed.  From my rough notes on the PacRim's first go at it:

"Lack of specific data.  Not even stream based data in places.  If the citizens coalition is asking to fulfill the role of government,  they should be at least as prepared as the government as another applicant.  That is the way it should be.  Huge problem.  Did not have site specific info.  Info about flow levels, specific features - ripples, spawning habitats.  At least one field season of work.  Methodology of their study is flawed.  Not appropriate here.  Quick and dirty method.  Hasn’t been validated for small streams like this."

The CCC argued there data and methodology were good, but PacRim's were bad.

2.  Economic Impact Data - PacRim's data focused on financial value of the coal.  CCC disputed their projections, saying there was nothing there to back them up.  Furthermore, given the change in the price of oil and the decline of coal everywhere, the PacRim project would now lose money.  CCC (different groups like Inlet Keepers also testified for CCC and I'm not distinguishing here who said what) also argued for considering a much wider range of economic impacts to be measured - the cost of the salmon fishery's damage, and even the cost of environmental infrastructure which helps clean the water and air and keeps the salmon and other species healthy.  They also talked about the recreational value of the land.  This is where the E.O. Wilson narratives seemed most obvious.

 Other Issues

There were a number of other interesting twists and I won't try to cover them all.  But a key one was the presence of the Alaska Mental Health Trust which stands to gain income from the mining on their land.  This income would be used to help provide mental health services in the state.

But I think the key issue is the conflicting narratives about the use of collective resources and private entities - whether they are coal companies or private citizens.

The impact of coal on climate change was also raised and how Alaska is the most impacted state already with melting glaciers and permafrost, eroding shorelines, ocean acidification, and loss of polar bear and walrus habitat. 



Criteria for the Decision

The criteria for making the decision are also listed on the DNR website: (I've reformatted them a bit to make it easier to read)

"When your application is complete, it will be reviewed to determine

• the need for the reservation of water and 
• its impact on other water right holders and 
• the public interest. 

An assessment will be made to determine if water is available for the reservation and if the information in the application is accurate and adequate. Public notice of the application must be given."

[UPDATE 10:41pm - here are the more detailed criteria I published in the August 20 post on this:

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.]

But whatever decision is announced tomorrow, you can rest assured it will be challenged by the party whose argument did not prevail.  This is just the beginning.  

"It's easier to imagine the end of the world than to imagine the end of capitalism." [UPDATED]

Busy rainy day.

Biked over to UAA for the Citizens Climate Lobby meeting.  More on that later.  Really good talk by Jerry Taylor of the Libertarian Niskanen Center.  Also the Anchorage chapter got mentioned for commissioning the study of the impact on rural Alaska of a carbon fee with rebate done by ISER economist Steve Colt.  But I can only write so much in one post, so that will wait. 

Right after the meeting I got a ride to Arctic Valley for the Earth Care Jamboree.  Lots of thoughts and ideas, few of which will get into this post.

Libby Roderick kicked things off musically upstairs against the dramatic view of the fall colors on the slope behind her. 

She also led a workshop on Money.  She focused on the disconnect between what people say they believe - particularly on climate change - and how they spend and invest their money.  She frequently broke for the participants to talk in pairs about the themes.

The title quote comes from this workshop.  We

didn't spend any time on it, but for this post I looked it up and found the author to be Frederic Jameson and it pops up in reviews of post-apocalypse movies and books. lamenting the lack of imagination to develop post-capitalist worlds.  For example, in a Snowpiercer review:

"This film is great as a film. I am however tired of these premises in which humanity is deprived of some antagonistically outer threat, humans or world cause, that kills off everybody except a small population and let them return to a state of basic barbarian living. Another quote from Slavoj Zizek mirrors this appending doom: 

'this is what I fear; this is the true dilemma. When the big Other in the form of the state collapses, what we will have is a regression …to some kind of far more totalitarian … pre-state … form of the big Other. Or even to New Age consciousness. There they try to make the big Other exist, perhaps in the form of natural balance'”

There were lots of doors we peeked at in the workshop, but didn't go through as Libby raised money related questions:  people's emotional reactions to money;  the effects of their upbringing on how they think about money;  how people support or fight global warming by how they spend and invest their money;  why money, particularly one's own monetary situation, is rarely talked about with others.

[UPDATE March 21, 2019:  I notice that people get to this post frequently, but I had forgotten the details so I checked today and see that while I reference Frederic Jameson as the author, I don't really have the quote in here.  It's from an article, "Future City",  in New Left Review, 2003:  Here's the paragraph that includes this post's title:

"For it is the end of the world that is in question here; and that could be exhilarating if apocalypse were the only way of imagining that world’s disappearance (whether we have to do here with the bang or the whimper is not the interesting question). It is the old world that deserves the bile and the satire, this new one is merely its own self-effacement, and its slippage into what Dick called kipple or gubble, what LeGuin once described as the buildings ‘melting. They were getting soggy and shaky, like jello left out in the sun. The corners had already run down the sides, leaving great creamy smears.’ Someone once said that it is easier to imagine the end of the world than to imagine the end of capitalism. We can now revise that and witness the attempt to imagine capitalism by way of imagining the end of the world." (emphasis added)]

There was an interfaith panel that included:

Rev Dr. Curtis Karns
Yukon Presbyterians for Earth Care

David Bishop Mahaffey
Orthodox Church in America

Dr. Genmyo Zeekyk
Anchorage Zen Community

Prof. Doug Causey
Friends (Quakers)
University of Alaska Anchorage











I went to an afternoon workshop on activism.  It was called "Social Movements and Peaceful

 

Carson Chavana prepping for workshop

Resistance" hosted by Carson Chavana, who's been active fighting against the Chuitna coal mine, and The Rising Tide, Alaska chapter.  This was one of the groups that had people blockading Shell's   icebreaker MSV Fennica as it left Portland, Oregon on its way to drill in the Chukchi Sea.  I tend to be on the non-violent end of the continuum, but I found the workshop stimulating.  There were distinctions made between civil disobedience and activism. (I think the second term was activism, but due to my amazing magical powers I made their flier disappear was I walked from the couch to my desk. I'm still working on the part of this trick that makes it reappear.) Civil disobedience accepts the legitimacy of the government and challenges bad laws by breaking them and getting the judge or legislature to change the law.  Activists don't accept the legitimacy of the government, arguing they have been corrupted by the corporate paid lobbyists who have twisted the laws to favor their interests.  (I'm paraphrasing here.)

Kirby Spangler

Kirby Spangler, who's a member of
There was also a participatory exercise on defining violence and the morality of different actions.  Is breaking a window a form of violence and would you do it or not?  Is eating meat a form of violence and would you do it or not?  What about taking some parts from a bulldozer that is going to be used to destroy some structure?  These questions made us all reconsider distinctions in types of violence.  Is violence against property the same as violence against humans?  Is physical destruction different from disabling the bulldozer?  Are there times when violence is justified?  I think there was some agreement that one can't evaluate an action without some context.  Self-defense and defending human life were two examples that a lot of people used to justify violence.  While these are old debates, it was useful for me to revisit them and to see the variety of stances people had. 


Meanwhile, it kept raining most of the day, but the landscapes outside the building were spectacular as the clouds obscured the views here and then later there.  But always there were the fall colors of the tundra.

Chuitna River DNR Hearing - Two Different World Views Colliding

There's no wifi in the room so I'm doing this quick during a lunch break (early because they'd allocated more time than people used) but I have to get back from the Federal Building cafeteria where they do have wifi.

I've got lots to sort through.  Lots of learning as I listen to testimony that seems to be coming from inhabitants of totally different planets.  Their views on this are based on completely different world views and assumptions.  More later.  I'll get pics up for now.  Above you can see the DNR table that's listening and asking questions.

Across from them is the spot for people giving testimony.  This is Valerie Brown from Trustees for Alaska at the podium.

During a break - Dave Schade on the right standing up.

This is the Pac Rim attorney - Eric [Fjelstad].  I didn't catch his last name clear enough to try to write it here.

Gotta get back to the room.  There's a tunnel under the street so you don't have to go through security again.  More later. 

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.