Lake-Destroying Mining Operation OK, High Court Rules

The Supreme Court today blessed a gold mining operation in Alaska that is virtually guaranteed to kill all the wildlife in a nearby lake — although the mining company promises it will later "reclaim" the lake, filling it with organic material to make it an even better wildlife habitat.

The Environmental Protection Agency and the U.S. Army Corps of Engineers had already approved the project, which was being disputed by a coalition of Alaskan environmental groups. In upholding the agencies' approval, the Court upheld its familiar rule that federal agencies are entitled to deference.

The case stemmed out of a proposal by Couer Alaska to reopen the Kensington Gold Mine, near Juneau, which had been closed since 1928. Couer hoped to make the mine profitable by using a technique called "froth flotation" to pull gold-bearing minerals to the top of a tank of roiling water. Couer would then dispose of the crushed rock and water slurry in the Lower Slate Lake, three miles away in the Tongass National Forest. The slurry would almost completely fill the 23-acre lake, currently 51 feet deep at its maximum, transforming it into a 60-acre lake about one foot deep. In the process, all the fish and fauna in the lake would die.

The alternative, Coeur argued, was to place the slurry on nearby wetlands, creating a pile that would rise twice as high and cover three times the area of the Pentagon. This would permanently destroy dozens of acres of wetlands.

Couer needed federal approval before it could proceed with its plan. Two separate provisions of the Clean Water Act (CWA) seemed to give authority over the discharge of slurry to both the U.S. Army Corps of Engineers, which has jurisdiction over the creation of wetlands, and the Environmental Protection Agency, which is responsible for monitoring levels of waste in the water.

The Army Corps approved the gold mining plan, finding it was the "least environmentally damaging" way to dispose of the slurry, and that the damage would only be temporary, since in the future the reclaimed lake will be an even better wildlife habitat. The EPA declined to veto the Corps permit.

The permit was challenged by the Southeast Alaska Conservation Council (SEACC), a coalition of 12 Alaskan environmental groups. According to SEACC, the Army Corps did not have the authority to approve the mining operation because a section of the CWA forbids even tiny solid waste discharges -- and that includes the slurry discharge, 30% of which is solid waste. The company and the federal government argued that another section of the CWA grants the Army Corps blanket authority to permit the discharge of the slurry.

In light of the ambiguities in the CWA, the Court looked to the agencies' interpretation -- and found that the agencies had resolved the problem "in a reasonable and coherent way." An internal EPA memo explained that the prohibition on solid waste discharge applies not to the initial discharge of slurry into the lake, but to any further discharge into downstream waters.

The Army Corps had the sole authority to grant the permit, the Court ruled, because the slurry would fall under the regulations for "fill material," which is solely under the jurisdiction of the Army Corps, not the EPA.

Three justices dissented, arguing that the use of waters as "settling ponds" for harmful mining waste runs "antithetical to the text, structure and purpose of the Clean Water Act."

The case was Coeur Alaska, Inc. v. Southeast Alaska Conservation Council (07-984/07-990).

No Constitutional Right to DNA Evidence, Supreme Court Rules

A convicted defendant has no constitutional right to access the state's DNA evidence, a divided Supreme Court ruled today.

In a 5-4 decision, the Court held that legislatures have the right to establish rules regarding access to DNA evidence, and indeed 46 states and the federal government have already done so. A balance must be sought between the value of DNA testing and the need for conditions on access, and such questions are best handled by the legislature, the Court held.

"There is no reason to suppose that federal courts' answers to those questions will be any better than those of state courts and legislatures, and good reason to suspect the opposite," Chief Justice John Roberts wrote for the majority.

The case arose from a 1993 conviction of William Osborne for kidnapping, assaulting and raping a prostitute in Anchorage, Alaska. Prosecutors had produced results from a DNA test that showed Osborne may have committed the crimes. However, under the DNA test in question, approximately 16% of black individuals would also be implicated. Osborne is black.

During the trial, Osborne's attorney declined the opportunity to perform DNA testing for tactical reasons. After being sentenced to a prison term of 26 years, Osborne sought access to the state's biological evidence in order to conduct more advanced DNA testing, at his own expense. Osborne argued that the Constitution's Due Process clause allowed him postconviction access to the evidence.

Acknowledging that DNA testing has "an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty," the Court nonetheless held that there was no such right of access in the Due Process clause. "There is no reason to constitutionalize the issue in this way," Roberts wrote.

Although Alaska is not one of the 46 states that has implemented specific procedures for access to the state's DNA evidence, Alaskan state courts are adapting existing discovery rules for that purpose, the Court said.

"We see nothing inadequate about the procedures Alaska has provided to vindicate its state right to postconviction relief in general," the Court wrote, "and nothing inadequate about how those procedures apply to those who seek access to DNA evidence."

Four justices dissented, criticizing as "arbitrary" the state's refusal to turn over its DNA evidence.

"The State of Alaska possesses physical evidence that, if tested, will conclusively establish whether [Osborne] committed rape and attempted murder. If he did, justice has been served by his conviction and sentence. If not, Osborne has needlessly spent decades behind bars while the true culprit has not been brought to justice," wrote Justice John Paul Stevens for the dissent.

"I am convinced that Osborne has a constitutional right of access to the evidence he wishes to test."

The case was District Attorney's Office for the Third Judicial District v. Osborne.

Senator Schumer happy with 2008 election results

Senator Charles Schumer (D-NY) gave a press conference on behalf of the Democratic Senatorial Campaign Committee concerning the current state of three Senate races.

Schumer pointed out that the Senate race between Al Franken and Norm Coleman in Minnesota is the closest race in that state’s history, with 206 votes currently separating the two candidates. He also pointed out that the state law requires a recount when races are this close, and said that both candidates should let the officials do their jobs. An “impartial recount must go forward,” said Schumer, criticizing the attacks and intimidation tactics that the right wing was using. He referred to a story that claimed 32 votes had been locked in a car overnight was “completely fabricated by the right-wing.”

In Alaska, the absentee and questionable ballots that are being counted have put Democratic candidate Mark Begich ahead of Ted Stevens (R-Alaska). Although Schumer said he would not make any predictions, he was “cautiously optimistic” that Begich would win.

In Georgia, Senator Saxby Chambliss (R-Ala.) defeated Democratic candidate Jim Martin but got less than 50% of the popular vote. Under the state law in Georgia, this will require a runoff election between the two candidates. Schumer said he was pleased with the outcome and was hopeful Martin would win in the runoff, and concluded “We’ve added enough Democrats to the Senate to bring change to the American people.”

Pentagon brief: Iran has long-range missiles

We must take the missile threat from Iran seriously.

Such was the statement of Missile Defense Agency Director Lt. General Henry A. “Trey” Obering III at a Missile Defense Status briefing at the Pentagon. Iran, he says, is working on an extended-range variant of the Shahab-3 missile and a new 2,000 km medium-range ballistic missile known as the “Ashura.” Iran is acquiring “advanced ballistic missile capabilities,” and they’re doing it with foreign assistance and an “aggressive development and test program.”

So what was Iran testing last week? Intelligence provides that info, Obering said, but the Iranians themselves are the ones providing the information. Although this may call into question the accuracy of the information due to bias, Obering said that based on what he has seen, they [Iran] have the capability to have long range missiles. And by having Iran talk about the possibility of a space launch brings to mind something else: the ability to have an umbrella of cover under which they could make booster missiles capable of traveling intercontinental distances.

The thought of a nuclear missile capable of reaching the United States from Iran strikes fear into the heart of every American, and Obering stressed that this is the very reason the missile defense system in Europe is needed. Based on azimuth trajectories (the arc a missile would have to travel in order for it to intercept another target), we need radar detection in the Czech Republic, and our actual interceptors located in Poland. Any closer, and they could not travel the proper trajectory to destroy an enemy missile in time to avoid significant damage.

But what if the attack isn’t nuclear, and is, in fact, an EMP? EMP’s are missiles that deploy an electromagnetic pulse, capable of disabling electronics across a large area. The amount of disabling caused is proportional to how close it is to the target when it goes off, hence the desire to intercept those types of missiles as far above the ground as possible. The House Armed Services Committee discussed that threat and said the potential damage would be significant.

The United States has eighteen nations around the globe that we can do missile defense interaction with. “It’s not the United States only” that is concerned, and there are a growing number of nations that want defense. Placing our interceptors in Poland is where it makes the most sense. Although Russia says that we’re exaggerating a missile threat from Iran, and has also come to a misconception that we are pointing missiles at Russia themselves, there are three fundamental problems with that theory. One, the angle of the missiles would actually fire them 256 kilometers into space if they went all the way to their apex, two, interceptors don’t carry the same payload such as an actual destructive missiles does- they’re only designed to hit things that do have that payload, and make them explode on themselves, and three, a European interceptor site (up to 10 interceptors) “would be easily overwhelmed by Russia’s strategic missiles force,” should we fire at them.

Russia, apparently, has been invited to “come have a look,” and we’ve made a proposal: we will set the defense system up but we won’t bring it completely operational unless the Iranian threat emerges. Obering said that an Iranian threat has emerged when there is proof they have the capability to fire off a missile that can travel 2,000 - 2,500 kilometers, and, if we wait till they actual fire off those missiles, it’s too late to get our own defenses up to defend against it. There is the need to be ready now, not later. Yes, Obering said, they [Iran] have long-range missiles.

Tests have been conducted utilizing missiles fired at the proper trajectories from Alaska and California, to emulate an actual airstrike. Obering said they’re concerned that Iran and North Korea will develop the ability to counteract our defense, and shoot our interceptors down before they can do what they are meant to do: protect. That is why by the end of this year we hope to have two tracking satellites that can track launched missiles more precisely than we do with our current ground radar, such as the one located in Japan. Since we have fielded an initial capability to defend the United States against ballistic missile attacks, we must take into account future uncertainties. Right now, we’re hitting our targets within centimeters from where we’re aiming.