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Must the Public Pay Miners Not to Pollute? A Takings Analysis of a Proactive §404(c) Action in Bristol Bay, Alaska

July 2012

Citation: ELR 10649

Author: Rebecca L. Bernard

A potential federal action under §404(c) of the Clean Water Act to prohibit or restrict the disposal of mine wastes from large-scale hardrock mines like the proposed Pebble Mine in waters of the Bristol Bay Watershed, which supports the world’s largest commercial sockeye salmon fishery, calls for a takings analysis. A proactive §404(c) action in Bristol Bay would not be a taking of private property because the owners of state mining claims, such as those encompassing the Pebble Deposit, have neither a protected property right to dispose of mine wastes in waters of the United States nor an absolute right to mine. Even if a protected property right were involved, a §404(c) action would effect neither a categorical nor a Penn Central taking of property in state mining claims.

Rebecca L. Bernard is Of Counsel, Bessenyey & Van Tuyn, LLC, Anchorage, Alaska.

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