AK gov again pushes pro-Pebble Mine lawsuit despite opposition by most Alaskans

Alaskans' majority of opposition to Canada's Pebble Mine over several decades continues to fall on deaf ears.

by | April 15, 2024

State of AK lawsuit alleges the EPA “illegally vetoed development” of the Canadian mine at Bristol Bay

By Peggy Parker/SeafoodNews.com
April 15, 2024

The State of Alaska filed suit against the Environmental Protection Agency (EPA) again last week, this time for illegally vetoing further development of Pebble Mine — located at the headwaters of Bristol Bay — before a U.S. District Court in Alaska.

Governor Dunleavy’s lawsuit over what his attorney general calls “a blatant affront to the sovereignty of Alaska” follows a March 18 lawsuit filed in the U.S. Court of Federal Claims (based in Washington, D.C.) for “the past and future losses stemming from the EPA decision,” amounting to $700 billion. A week before that, Pebble’s parent company Northern Dynasty sued for lost future profit without mentioning a number. Those two cases are currently ongong.

“The Alaska Constitution requires that the State manage its resources for the maximum benefit of its people, and reliance on our natural resources is the cornerstone of Alaska’s statehood promise. Yet, the federal government would turn these State lands — these lands conveyed to us specifically because of their mineral value — into a de facto national park…The State will continue to fight against this flagrant overreach.””

ak governor mike dunleavy on pebble mine

Calling the EPA decision a federal attempt to “preemptively block any development on State lands in such a giant swath — 200,000 acres — is a blatant affront to the sovereignty of Alaska and ignores our State’s many laws and regulatory programs that protect anadromous fish and other natural resources.” Alaska’s Attorney General Treg Taylor also noted that the State has not endorsed any specific mining project and has not completed the state’s permitting process for the Pebble Mine. 

“The State believes that a development proposal should be allowed to complete the State and federal permitting process and not be unilaterally shut down by one federal agency before these regulatory processes perform their functions,” the press release from Dunleavy’s office said. “That permitting work was ongoing when EPA prematurely vetoed any mining in an area much larger than the footprint of the proposed mine.”

The EPA’s decision specifically prohibits “the specification of and restricting the use for specification of certain waters in the Bristol Bay watershed as disposal sites for certain discharges of dredged or fill material associated with development of a mine at the Pebble deposit, a large ore body in southwest Alaska,” according to its executive summary

After citing Section 404(c) of the Clean Water Act (CWA) as authority to issue the veto, the agency notes the reason: “… because the discharges of dredged or fill material associated with developing a mine evaluated in this final determination will have unacceptable adverse effects on anadromous fishery areas in the Bristol Bay watershed.”

Much of the rest of that summary describes the “unparalleled ecological value” of Bristol Bay followed by 27 pages of how the proximity of the mine to mine and the fishery, before getting into another 300 pages of details supporting EPA’s decision.

Last July, Dunleavy’s attorney general filed a similar case with the U.S. Supreme Court, in an attempt to bypass the lower courts and save time getting Pebble reauthorized. Northern Dynasty filed supporting briefs at the time. 

“The lawsuit is legally and factually unjustified — and is little more than a publicity stunt filed on behalf of an unscrupulous mining company, Pebble Limited Partnership, that has repeatedly misrepresented its record and misled regulators, its investors, Congress, and the general public,” wrote the United Tribes of Bristol Bay (UTBB) in a press release following the filing in July.

“Today’s legal filing from the Governor is a slap in the face to Bristol Bay,” said Alannah Hurley, UTBB executive director. “Contrary to his false narrative, it was our Tribes, Alaska’s First People, who requested this action because politicians like Governor Dunleavy slammed the door in our face and put the interests of a Canadian Mining company above our rural villages and our world class salmon fishery,” Hurley added.

In early January of this year, the U.S. Supreme Court rebuffed the case from the state. In a brief filed in November by solicitor General Elizabeth Prelogar, she asked the Supreme Court to ignore the request. She said Alaska’s claims “do not rise to the level of ‘seriousness and dignity’” of pleas that rely on the Supreme Court’s original jurisdiction in legal battles between states.

“The Supreme Court’s decision to not hear the State’s case directly is disappointing, but the State is confident that the lower courts will find that EPA violated the law with its prohibition and restrictions against any mining activity within the 309-square-mile area surrounding the Pebble deposit,” Dunleavy said in January. “The State will continue to fight against this flagrant overreach.”

Last week, Alaska’s Commissioner for the Department of Natural Resources also weighed in on the current lawsuit. “The Department of Natural Resources and our agency partners in the State of Alaska government have robust permitting, regulatory, and monitoring processes in place to ensure responsible development of Alaska’s natural resources, as mandated by the state constitution and DNR’s mission,” said John Boyle. 

“The EPA’s decision unilaterally prohibiting development on State land — land that was specifically granted to the State of Alaska for its mining potential while setting aside other areas of Bristol Bay for conservation — is an injurious act towards Alaskans and must be corrected by the judicial system,” Boyle added.

Photo credit: Matt Buxton

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About Laine

Laine Welch has covered the Alaska fish beat for print and radio since 1988. She also has worked “behind the counter” at retail and wholesale seafood companies in Kodiak and on Cape Cod.

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