Governor, State Urge SCOTUS To Reverse Bristol Bay Protections From Pebble Mine

The following appears in the August issue of Alaska Sporting Journal:

BY CHRIS COCOLES

Alaska Governor Mike Dunleavy (R) has never been shy about what his priorities are when it comes to the state’s natural resources, and mining, drilling and other projects.

Dunleavy has repeatedly leaned towards approving the Pebble Mine project despite the opposition that argues Bristol Bay’s massive salmon runs would be put at risk. The Environmental Protection Agency said as much in January when it all but killed the project via Clean Water Act safeguards.

Two years before, when the US Army Corps of Engineers changed course and rejected the permit for the proposed mine, the governor made it clear he’d fight for the gold and copper operation. “We have to prevent a federal agency, in this instance, the Alaska District of the Army Corps of Engineers, from using the regulatory process to effectively prevent the state from fulfilling a constitutional mandate to develop its

natural resources,” Dunleavy said in a 2021 statement that promised to appeal decisions that would shelf Pebble.

Fast forward to this summer and Dunleavy and Alaska Attorney General Treg Taylor want the Supreme Court to essentially reverse the EPA’s decision to permanently block the Pebble Mine.

On July 26, the state announced its intention to take the fight to the highest court in the land, saying it was “calling on the US Supreme Court to order the EPA to correct its wrongdoing.”

“Our constitution is clear: Alaska is responsible for utilizing, developing, and conserving all of the state’s natural resources for the maximum benefit of its people,” Dunleavy said. “Bureaucrats in Washington, DC are exercising unbridled and unlawful power to choke off any further discussion on this important decision affecting so many Alaskans.”

The state’s brief stated that no other state but Alaska has natural resources it constitutionally must protect.

“Nonetheless, EPA made its final determination under Section 404(c) of the Clean Water Act before the state processes could work through the Pebble Project,” the filing asserted.

“The preemptive veto is alarming,” Taylor added. “If EPA can rely on undefined terms and subjective standards instead of sound science to bypass the regular state and federal permitting processes here, it can do it anywhere, from large mining projects such as this, down to a family building their dream home. It’s an indefensible and unprecedented power grab that the US Supreme Court should find unlawful.”

The mine’s parent company, Northern Dynasty Minerals, was thrilled that the state is seeking a reversal from the Supreme Court.

“The Bill of Complaint filed by Alaska is a welcome development in the long Pebble saga,” Ron Thiessen, president and CEO of Northern Dynasty, said in a statement. “Northern Dynasty strongly, and I mean very strongly, supports all of the arguments set forth by the state and we congratulate the state for bringing these claims directly to the

US Supreme Court. Northern Dynasty intends to prepare and file with the Supreme Court appropriate briefs to support the state’s case.”

‘WORKING AGAINST THE WISHES OF MOST ALASKANS’
As the Pebble project slowly began to fall apart – in the past couple years, the mine’s once approved permit was reversed, its parent company CEO Tom Collier resigned in disgrace, EPA finalized Bristol Bay protections and stockholders brought a class-action suit upon Northern Dynasty Minerals after allegations they were “duped” by the company – opponents celebrated but continually acknowledged that the fight wasn’t over. This latest course of action by the state brings its own set of challenges and concerns.

The prevailing reaction to Alaska’s governor and attorney general going to SCOTUS was that the majority of state residents who have rejected the mine are being ignored.

“Alaskans have been unwavering in their opposition to the proposed Pebble Mine because of its well-documented threat to Bristol Bay’s world-renowned salmon fishery,” said Nelli Williams, Trout Unlimited’s Alaska director. “The governor is ignoring Alaskans and science with this lawsuit. And even more appalling, he is using public funds to prop up out-of-state mining executives at the expense of Alaska’s salmon and all the people who rely on them. It’s anti-Alaskan.”

Earthjustice’s Alaska office had a similar take. Its press release said two of every three Alaskans oppose the Pebble Mine.

“The governor and his administration are working against the wishes of most Alaskans, especially Bristol Bay residents, by continuing to side with the mine developer,” said Carole Holley, Earthjustice’s regional managing attorney for Alaska.

Holley also referred to the lawsuit as “a highly unusual legal move, and also a highly unpopular one.”

STATE THROWING A HAIL MARY?

The governor and attorney general weren’t the only state officials getting involved. The Alaska Department of Fish and Game, Alaska Department of Environmental Conservation and Alaska Department of Natural Resources also spoke out on behalf of the state’s lawsuit and called for the Supreme Court to get involved.

“Alaska’s Title 16 permitting process is designed to ensure conservation of fish and fish habitat. But these statutory protections were flouted by EPA before Alaska’s expert habitat and fish biologists had the opportunity to weigh in,” ADFG Commissioner Doug Vincent-Lang said. “The state’s career experts should be allowed to do their job without having Washington bureaucrats swooping in to prohibit an action before we even received a permit application.”

But the Bristol Bay Defense Fund, a coalition of Bristol Bay businesses, members of the fishing industry and tribal interests, called the state’s actions to get SCOTUS involved a “radical hail Mary.”

“In filing this lawsuit with the U.S. Supreme Court, the state of Alaska has completely disregarded the available avenues of judicial review to challenge a federal agency action by appeal through the federal courts,” Bristol Bay Defense Fund said in a statement. “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. The EPA’s authority to protect Bristol Bay under the Clean Water Act stands on an extensive and robust scientific and technical record that spans two decades and three presidential administrations.”

The coalition also stated that the appeal to SCOTUS disregards the majority of anti-Pebble Mine sentiment in the state.

“We will continue to defend Bristol Bay against the threat of the Pebble Mine and the state’s legal antics as long as necessary to ensure that the region, Tribes, salmon and clean water resources are protected forever,” vowed Bristol Bay Defense Fund. ASJ