Court Refuses To Re-hear Kensington Mine Decision


Clean Water Act preserved as Ninth Circuit protects lake from mine tailings


Tom Waldo, Earthjustice, (907) 586-2751

An Alaskan lake and the federal Clean Water Act remained intact this week after the Ninth Circuit Court refused to reconsider a scheme to dump mine tailings into the lake.

Coeur Alaska, Inc. had asked the full court to overturn a 3-judge panel’s decision in May that prevented Coeur from filling Lower Slate Lake with tailings from Kensington gold mine, near Berners Bay in Alaska. None of the court’s 27 active judges agreed to re-hear the case.

Other mining ventures in Alaska and the rest of the nation were set to similarly destroy lakes if the court had allowed Coeur to proceed, said Tom Waldo, the Earthjustice attorney who successfully sued Coeur and the Army Corps of Engineers for granting a permit to Coeur.

“Coeur wanted to dump 4.5 million tons of mine tailings into the lake, killing all fish and aquatic life. The court said that is illegal under the Clean Water Act,” Waldo said. “The whole reason Congress passed the Clean Water Act was to stop turning our lakes and rivers into industrial waste dumps.”

“The Bush Administration selected the Kensington Mine to test the limits of the Clean Water Act. The Army Corps had never issued a permit like this before. Fortunately, the court drew the line. The Clean Water Act does not allow a corporation to kill a lake with chemically processed mine wastes.”

Coeur could appeal to the U.S. Supreme Court, but Waldo doubted the court would even consider the matter, in large part because it’s such an obvious attempt to turn the Clean Water Act into a permission slip for destroying the nation’s waterways.

The only real and responsible next step for Coeur is to continue working with local and national conservation groups — who were represented by Earthjustice in the legal action — to find a way to dispose of tailings that complies with the Clean Water Act and protects Berners Bay, Waldo said. Mine representatives and the conservation groups have been meeting for weeks to discuss the issue.

Earthjustice represented the Southeast Alaska Conservation Council, Lynn Canal Conservation, and the Sierra Club.

Waldo said communities across the United States should take heart from what the Ninth Circuit Court has done for the country.

“If they were allowed to dump mining wastes in Slate Lake, they could do it into any lake, river or stream in the country. The Ninth Circuit has emphatically said — that’s illegal,” he said. 

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