EDITORIAL: Groups should pay contractors for lost wages

In a rare act for the U.S. 9th Circuit Court of Appeals, a sensible decision was handed down Nov. 28 when a three-judge panel reversed an Oct. 1 stay that halted construction on the rail extension at Port MacKenzie.

The Oct. 1 stay, also originating from a 9th Circuit decision that included the vote of a judicial relic from the Carter Administration, idled about 200 workers for nearly two months in an entirely unnecessary delay based on a petty challenge to the project on technical grounds brought by Cook Inletkeeper and the Sierra Club.

Cook Inletkeeper and the Sierra Club sued the Surface Transportation Board on the grounds that the “purpose and need” section of the environmental analysis did not meet the standards of the National Environmental Policy Act, or NEPA. The State of Alaska, the Mat-Su Borough and the Alaska Railroad Corp. moved to intervene to defend the STB action.

In issuing the Oct. 1 stay, the two justices of the 9th Circuit ignored the fact that Cook Inletkeeper and Sierra Club had not exhausted their administrative remedies by appealing to the STB. The lone dissenting judge at the time correctly noted that alone should have forced the suit to fail.

It’s difficult to quantify just how ridiculous the original Oct. 1 stay was, given that one of the key criteria to issuing such orders is the likelihood that the petitioners will succeed on the merits of their case.

Although nothing changed between Oct. 1 and Nov. 28, the second three-judge panel found that there was no “serious question” about the STB action — as the first decision stated — and that the balance of hardship clearly titled to the intervenors based on the costs of extending the work stoppage estimated to be between $10 million and $12 million.

In the big picture of litigation directed at the state resource industry, this legal skirmish won’t go down in the history books but is illustrative of the frivolous and continuous obstacles thrown up at every turn by typically Outside funded groups that prevent Alaskans from going to work.

The Sierra Club, Cook Inletkeeper or Alaska Conservation Foundation don’t have any concern for the 200 or so workers that were deprived of paychecks for two months at Port MacKenzie. And why should they when their money comes from San Francisco hedge fund and tech billionaires who have made their fortunes from the very activities they seek to prevent in Alaska.

It is curious that the San Francisco-based Energy Foundation, started by hedge fund billionaires James Simons and his son Nathanial Simons, no longer appears as a donor in the 2010 and 2011 annual reports of the Alaska Conservation Foundation after being listed in 2008 and 2009.

According to the 2011 IRS form 990 for the Sea Change Foundation, also run by the Simons family and which funds tens of millions to the Energy Foundation, a grant of $1.85 million was made to ACF in 2011 with another $3 million or so to the Sierra Club. ACF then distributes its grant funding to other organizations, including Cook Inletkeeper. The grant to ACF was listed as “anonymous” in its 2011 annual report.

The irony of the Simons money funding anti-resource activities in Alaska cannot be overstated. For all the attacks on “Outside” and “foreign” companies leveled by the self-righteous environmental movement in Alaska, the simple truth is those kind of companies — not to mention cigarette and drug manufacturers — are the ones that fund their efforts.

ACF and the Energy Foundation may want to keep their connection anonymous, but an examination of Simons’ most recent Rentec hedge fund holdings shows that it owns $33 million worth of shares in Rio Tinto and another $32.6 million in Royal Dutch Shell.

Of course, two of the biggest causes for environmental groups are stopping the Pebble mine and Arctic Ocean oil production currently led by Shell. During the last quarter ended Sept. 30, though, Rentec’s holdings in Shell more than doubled.

It’s also worth noting the $33 million in shares of Rio Tinto held by Rentec amount to about 16.5 percent of the $200 million that company invested to acquire a nearly 10 percent stake in the Pebble prospect.

Conservation groups funded by the very companies they are opposing. That uncomfortable fact won’t cost them any money, but they are costing others plenty. And when they lose, like they did at Port MacKenzie, they should pay up.

Updated: 
12/06/2012 - 8:36am

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