State trust appeals DNR decision on Chuitna water reservation

It seems nobody likes the Alaska Department of Natural Resources’ most recent Chuitna mine decision, including a state authority it oversees.

The Alaska Department of Law filed an appeal on behalf of the Alaska Mental Health Trust Authority against the Department of Natural Resource’s Oct. 8 decision to grant an in-stream flow reservation, or IFR, to Chuitna Citizens Coalition for the lower section of Middle Creek.

PacRim itself also filed an appeal of DNR’s decision, along with several industry and private groups. Chuitna Citizens Coalition has not filed an appeal, though members were unhappy with the Oct. 8 decision as well for not granting its two other in-stream reservation requests. The period for appeals is now closed.

Middle Creek is part of the watershed for a proposed coal mine, and an integral part of the drainage process necessary to complete the mine. The bulk of the proposed mine’s land is owned by the trust.

The Alaska Mental Health Trust Authority was established in 1956 and placed under the Department of Natural Resources’ authority after statehood in 1959. The U.S. Congress gifted it one million acres of land to be used for developing resources for Alaskans with mental health issues. The trust currently has roughly 80,000 such beneficiaries.

John Morrison, the acting executive director for the trust’s land management office, said the trust is effectively a third party in the dispute with only a ceremonial connection to DNR, though it may not appear that way to an outsider.

“It’s really kind of a relic of the settlement that we’re here,” said Morrison. “In that light, we use the attorney general’s office. Our only interaction with the process is the same as any other third party. We act like a private land owner.”

Potentially, an administrative hearing between the trust and DNR would have to be settled with both parties being represented by the Alaska Department of Law. Because the trust typically uses DNR’s attorney, it has had to switch to Assistant Attorney General Dario Borghesan within the Department of Law,.

Few parties appear satisfied with DNR. The coalition characterized DNR’s decision as a “dodge,” and a concession to the coal industry at the expense of Alaska salmon, as it only granted the lower reach IFR.

 “This decision doesn’t do enough to protect fish in the Chuitna River because it doesn’t keep water flowing in the salmon-spawning areas of Middle Creek,” said Ron Burnett, a Beluga homeowner and founding member of the Chuitna Citizens Coalition, in a statement.

The trust, which is overseen by the Department of Natural Resources, calls the DNR decision “arbitrary” in its appeal and a dangerous precedent for allowing private parties to derail resource development. The Chuitna Citizens Coalition IFR is the first granted to a private group, rather than state organizations.

“(In-stream flow reservations) can also be misused to thwart or discourage responsible resource development in a state whose socio-economic well-being depends on it,” the appeal reads. “And overly expansive interpretation of AS.46.15.145 could jeopardize development across Alaska and, with it, the trust’s ability to provide for its beneficiaries.”

The trust argues the Chuitna Citizens Coalition IFR could prevent the mine and thus the $300 million of projected royalties PacRim would owe the trust over the course of the mine’s lifespan. The stream in question is located on land the trust has been endowed.

Morrison said DNR’s decision ignores the trust’s freedom to manage its own land in accordance with the best public interest. Trust land, he argues, is not managed as state land and should not be subject to state management decision that contradicts the trust’s plans for best use.

“The entire length of their IFR is located on trust land,” said Morrison. “I don’t know there’s been any consideration of how someone would manage or monitor this, if they need permission from us to do so. If this were Native corporation land, how would people react?”

Furthermore, the trust believes DNR contradicts itself, allowing an IFR where it previously stated none are needed.

“Even though the Division (of Land and Water) conceded that applicable regulation and permitting requirements processes ‘can adequately protect the water resources in Middle Creek,’” the appeal reads, it nonetheless found that there is a need for a reservation of water in the Lower Reach.

Lastly, the trust argues DNR left unanswered questions about how the reservation will be administered. The trust does not know whether what measurement of IFR Chuitna Citizens Coalition will use, or how it will monitor the flows.

The mine’s opponents boil the argument down being against the IFR is being against salmon habitats.

“It’s surprising to see these corporations wanting to fight Alaskans who just want to keep water in the salmon stream,” said Bob Shavelson, executive director of Cook Inletkeeper.

DJ Summers can be reached at [email protected].

11/24/2016 - 3:18pm