Loser Pays Rule Violates Rights of Citizens
Without going to court, Trustees for Alaska won a major victory last month. Representing several conservation groups, Trustees questioned the legality of the State of Alaska’s coal mining regulatory program as inconsistent with federal programs when it comes to Alaska’s punitive “loser pays” rule and court challenges. The federal Office of Surface Mining, Reclamation and Enforcement agreed with us and the State is now required to rewrite the rules.
Under Alaska law, people who challenge state-issued coal mining permits or decisions or who sue a coal mining company for permit violations in state court can be held accountable for the other side’s attorneys’ fees should they lose. This policy creates a chilling effect, deterring people from going to court to ensure protection of our lands and waters. When citizens do not have access to the courts to challenge government or industry it hands a free pass to those that would issue lax permits, purposely violate the rules or take advantage of poor oversight when it comes to coal mining in Alaska.
“Alaskan residents deserve the opportunity to challenge coal strip mine permits that we believe are illegal without fearing bankruptcy,” said Jamey Duhamel, program director of Castle Mountain Coalition, a non-profit organization working to protect the communities of the Matanuska Valley from Usibelli Coal Mine Inc.’s proposed Wishbone Hill coal strip mine. “With coal companies proposing strip mines within a quarter mile of neighborhoods, this decision ensures we have the tools we need to protect our families.”
Chuitna Citizens Coalition is a group dedicated to protecting the Chuitna River from PacRim Coal’s proposal to strip mine directly through 25 miles of the river’s tributaries. Coalition founding member, Judy Heilman said, “As Alaskans who must live with the consequences of coal strip mines, we deserve access to the court system and a strong voice in the permitting process. This decision protects our right as Alaskans to protect the natural resources we rely on.”
These coalitions were only two of the groups represented by Trustees for Alaska in this petition challenging state practices. Also represented are Envision Mat-Su, Cook Inletkeeper, Alaska Community Action on Toxics, Alaska Center for the Environment, Pacific Environment, and the Sierra Club.
Alaska is the only state in the nation with the “loser pays” rule. Alaska once protected anyone without economic incentive under the “public interest litigant” rule when challenging decisions implicating public lands, waters, fish or game. The Murkowski Administration eliminated that protection. Making access to court more difficult is just one of the ways the State of Alaska has attempted — and continues to try — to cut citizens out of the public process when it comes to natural resource decision making.
House Bill 47, which is currently awaiting transmittal to Governor Parnell, is a close relative of the “loser pays” rule. It would create financial hurdles for Alaskans seeking to protect their fish and water resources by allowing the court to impose a bond to cover costs and damages to industry in cases where plaintiffs challenge a permit for an industrial project. Under this rule, individuals would be required to post a bond covering costs, including wages and benefits for employees, and payment to contractors and subcontractors of the industrial operation, just to file a case seeking to stop an illegal practice.