Judge approves subpoena of former EPA staffer

Pebble Limited Partnership has the go-ahead to depose a key witness in its lawsuit against the Environmental Protection Agency, but that’s only part of the battle.

U.S. District Court of Alaska Judge H. Russel Holland ordered a subpoena for former EPA biologist Philip North. Aug. 27.

North appears to be a key for either side in determining whether or not the EPA violated federal law while compiling the Bristol Bay Watershed Assessment. The 1,000-plus page document finalized in January 2014 is the basis for the agency’s attempt to preemptively block development of Pebble’s copper and gold deposits through its Clean Water Act Section 404(c) wetlands protection authority.

The exhaustive assessment found large-scale mining in the Bristol Bay watershed would irreparably harm the region’s robust salmon fisheries. In November, Holland issued an injunction to halt all work on the 404(c) process until the court case is resolved.

He denied an EPA motion to dismiss the case June 4.

North worked extensively on the assessment beginning in 2011 and Pebble claims he conspired to kill the proposed mine in the years prior.

“North was instrumental in forming and utilizing the work of de facto federal advisory committees at issue in this case and in utilizing them to provide recommendations and advice for EPA to launch its unprecedented attack on Pebble mine,” Pebble attorneys wrote in a motion to subpoena North.

Pebble’s current case against the EPA is based on the premise that the agency predetermined its stance against the mine before the assessment was finalized. Additionally, the mine investors claim the EPA meetings with anti-mine groups before and during the assessment process violated the Federal Advisory Committee Act, or FACA, because they did not include Pebble and follow open meetings procedures.

The EPA argues Pebble had ample opportunity to provide input as the assessment was formed. Agency attorneys said during oral arguments in May that Pebble and EPA officials have met more than 30 times since 2003 — long before the assessment process officially began in 2011.

Holland set North’s deposition to occur Nov. 12, in Anchorage, but he is currently believed to be in Australia.

The federal judge also found $2,400 would be sufficient to cover travel expenses for North; Pebble offered to pay $1,500 in its motion.

Members of Congress have accused North of evading prior interviews when he was allegedly in New Zealand.

EPA Administrator Gina McCarthy has been drilled while testifying before congressional committees about emails from North regarding Pebble that her agency claims were lost when a computer crashed in 2010. Whether or not the EPA followed the Federal Records Act and properly backed up the emails is unresolved.

The EPA Inspector General is also in the midst of a review of the Bristol Bay Watershed Assessment that began in May 2014.

Pebble also accused North of “secretly collaborating, including through personal email” with attorneys for Alaska Native groups and Trout Unlimited — staunch mine opponents — to draft a petition that is purportedly the catalyst for the assessment in its subpoena motion.

Further, Pebble believes North recruited “an entourage” of scientists, environmental groups and lobbyists for the EPA to use in support of the assessment.

Finally, North is alleged to have drafted an “options paper,” which Pebble called the “agency’s roadmap” to preemptively stop the mine before the petition to conduct the assessment was submitted.

The EPA did not oppose the attempt to subpoena North, but contended Pebble’s characterizations of him are based on allegations and not evidence.

Holland wrote in a footnote to his order that “some of (Pebble’s) observations with respect to Mr. North are just a bit inflammatory and counsel for (EPA’s) responsive comments were not at all helpful.”

Elwood Brehmer can be reached at [email protected].

Updated: 
11/24/2016 - 9:28am