Copied from the other board. Chris
I have just finished reading the Alaska State USACE Appeal - what as EXCELLENT piece of work. The authors need to be given the highest praise. The Appeal is well rounded document that addresses in an undeniably convincing, almost forensic, manner the factual errors of the Denial. I have been a professional scientist and researcher for forty years and I could not be more impressed with the quality of the Appeal. On the basis of the information presented I do not think the District Permit Denial has any basis in fact, background or legal requirement. Moreover, following the critical review and analysis of the Permit Denial that the appeal represents it is apparent that the Permit Denial represents a terribly shoddy and incompetent piece of work. The public servants that prepared the appeal should be ashamed, do they not have any pride in their work? They should be fired for their professional incompetence. The Appeal reassures me that if the project does not go ahead then at least the Federal Government will be on the hook for considerable compensation for what amounts to the "taking" of the private property.
Martin
With Regards To Chris's post
Did you find it interesting that the last point made by the state was this:
"IV. The Permit Denial threatens mining development in the area, leaving no economically viable use of these lands The Fifth Amendment of the U.S. Constitution forbids the taking of private property for public use without just compensation. The Supreme Court has recognized that this constitutional guarantee is “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”163 The Supreme Court has held that the denial of a 404 permit, when the permit denial results in no viable uses for the property, can rise to the level of a taking.164 Thus, the denial of a 404 permit can rise to the level of a taking where the property owner had a reasonable investment backed expectation that it could develop the property and when the permit denial deprived the property owner of most of the use of its property. Here, pursuant to the CWA, Statehood Act, and the Cook Inlet Exchange, the State has a reasonable investment backed expectation in the lands surrounding the Pebble project. Alaska selected and specifically designated the lands for mineral development. But the District’s PIR, compensatory mitigation finding, and significant degradation findings, make it virtually impossible for any mineral development to occur in the area. The State, therefore, is now left with no economically viable use of these lands. For this reason alone, the Permit Denial should be vacated."
This comprehensive appeal document by the state not only lays out the reasons for a review, but also the basis for a "taking" suit against the federal government, if the denial isn't reversed, which in my opinion, the state would have a high probability of winning.