Pebble Mine Company Files Two Actions To Reverse EPA Veto; Opponents React

Northern Dynasty Minerals (TSX: NDM) (NYSE American: NAK) said on Friday it has filed two separate actions in the federal courts challenging the federal government’s actions to prevent the company from building a mine at its Pebble project in Alaska.

Th… https://t.co/uahV2Nhm7P

— goldsheet (@goldsheet) March 15, 2024

Some new Pebble Mine news, as the mining operation’s parent company Northern Dynasty Minerals field two actions to help overturn the Environmental Protection Agency’s Clean Water Act protections for Bristol Bay. https://aksportingjournal.com/epa-decision-to-protect-bristol-bay-means-pebble-mine-project-is-all-but-dead/

First, here’s Northern Dynasty’s press release:

Northern Dynasty Files Two Separate Actions: Seeking to Vacate EPA’s Illegal Veto and a Takings Case

March 15, 2024 Vancouver – Northern Dynasty Minerals Ltd. (TSX: NDM; NYSE American: NAK) (“Northern Dynasty” or the “Company“) and 100%-owned U.S.-based subsidiary Pebble Limited Partnership (“Pebble Partnership” or “PLP”) is filing two separate actions in the federal courts challenging the federal government’s actions to prevent the companies from building a mine at the Pebble Project.

Action Seeks to overturn EPA’s illegal veto

One action, in Federal District Court in Alaska, seeks to vacate the Environmental Protection Agency’s (“EPA”) veto of a development at Pebble. This is the main focus of our legal actions. We are confident that the court will vacate the EPA veto and allow permitting of the Pebble project to resume because, as we have previously stated, the veto violated the law and was arbitrary and capricious. The complaint in this action alleges, among many other points, the veto was issued in violation of various federal statutes regarding Alaska’s statehood rights and a land exchange approved by Congress; it was based on an overly broad legal interpretation of EPA’s jurisdiction which has since been over-ruled by the Supreme Court; its geographic scope exceeds that allowed by the statute; it was based on information previously developed by EPA in an illegal preemptive veto process that was designed to reach a predetermined result; and the factual basis stated to support the veto is directly contradicted by the July 2020 Environmental Impact Statement published by the United States Army Corps of Engineers (“USACE”), which is an important part of the administrative record. The EPA has not demonstrated that either the development of the Pebble deposit will have unacceptable adverse effects under Section 404(c), or that there are any impacts to Bristol Bay fisheries that would justify the extreme measures in the final determination (veto).

“Whatever authority the EPA may have under section 404(c), the general provision in the Clean Water Act cannot authorize the EPA to take action to block the specific economic activity that was Congress’s express purpose for granting these lands to the State of Alaska under the Cook Inlet Land Exchange,” Ron Thiessen, Northern Dynasty President and CEO, stated.  “It cannot authorize the EPA to override the State’s regulatory preferences for the lands, or the State’s preference to allow modest use of some streams and wetlands in the vicinity of the Deposit to facilitate the extraction of the valuable critical minerals. This is just another example of gross EPA overreach of the powers granted to it by Congress.”

Takings case

An action is also being filed in the United States Court of Federal Claims in Washington, DC, claiming that the actions by the EPA constitute an unconstitutional “taking” of Northern Dynasty’s and the Pebble Partnership’s property. We plan to ask the court to defer considering this action until the EPA veto case, discussed above, has been finally resolved. Our permitting strategy is focused entirely on winning the EPA veto case and permitting the Pebble project. We have filed a takings case against the federal government to preserve our ability to seek compensation for a violation of our rights in line with the protections under the Fifth Amendment.  There are procedural rules regarding takings cases that made it necessary to get this claim on file at this time. We note, however, that the damages for “taking“ the world’s largest undeveloped copper deposit could be very substantial.

“Our priority is to advance the District Federal Court Complaint, because overturning the illegal veto removes a major impediment from the path of getting the permit to build the proposed mine,” said Ron Thiessen, Northern Dynasty President and CEO. “The filing of the takings complaint puts the US Government on notice that we will be seeking very substantial compensation if they continue to illegally block the lawful permitting process. It is basically an insurance policy, ensuring that this case is available to us when, or if, we decide to pursue it further,” Mr. Thiessen continued.

The State of Alaska will also be filing similar actions in Federal District Court in Alaska and the United States Court of Federal Claims in Washington, DC.

About Northern Dynasty Minerals Ltd.

Northern Dynasty is a mineral exploration and development company based in Vancouver, Canada. Northern Dynasty’s principal asset, owned through its wholly owned Alaska-based U.S. subsidiary, Pebble Limited Partnership, is a 100% interest in a contiguous block of 1,840 mineral claims in Southwest Alaska, including the Pebble deposit, located 200 miles from Anchorage and 125 miles from Bristol Bay. The Pebble Partnership is the proponent of the Pebble Project.

For further details on Northern Dynasty and the Pebble Project, please visit the Company’s website at www.northerndynastyminerals.com or contact Investor services at (604) 684-6365 or within North America at 1- 800-667-2114. Review public filings, which include forward looking information cautionary language and risk factor disclosure regarding the Company and the Pebble Project in Canada at www.sedarplus.ca and in the United States at www.sec.gov.

And now, reaction from several Pebble Mine opponent organizations via a press release:

Tribes, Commercial Fishers, Conservation Groups Slam Northern Dynasty Minerals & Pebble Limited Partnership Lawsuits Challenging EPA’s Clean Water Act Veto of Pebble Mine

(Dillingham, Alaska) — Today, Northern Dynasty Minerals and Pebble Limited Partnership – companies with a proven history of misleading their stakeholders, political manipulation, and misrepresenting the size and scope of their mine in proposals to the Army Corps – filed a lawsuit in the Federal District Court of Alaska challenging the U.S. Environmental Protection Agency’s (EPA) Clean Water Act veto of the Pebble Mine. This comes just two months after the Supreme Court refused to consider the State of Alaska’s original jurisdiction petition challenging the EPA’s 404(c) action. Northern Dynasty Minerals and Pebble Limited Partnership also filed a separate lawsuit in the Federal Court of Claims in Washington, D.C. alleging that EPA’s veto constituted an illegal “taking” of their property.  

Bristol Bay Tribes, commercial fishers, and people in the region first asked the EPA to step in and use its authority to veto Pebble Mine more than thirteen years ago, and courts have repeatedly upheld the EPA’s authority. The EPA’s 404(c) authority is an exceptionally durable tool that the agency has used judiciously – only three times in the last 30 years and 14 times over its 50-year history. 

The EPA’s decision to veto the Pebble Mine reflects the will of the overwhelming majority of Bristol Bay residents and Alaskans – whose views the United Tribes of Bristol Bay and Bristol Bay Native Corporation represented in an amicus brief that laid out the legal reasoning for the Supreme Court to reject the State’s lawsuit.

Below are statements from tribal, conservation, and commercial fishing organizations: 

“Pebble Limited Partnership is proving yet again just how out of touch with reality they are,” said  Delores Larson, Interim Director of United Tribes of Bristol Bay. “This lawsuit filed today in the Alaska District Court disregards the will of Bristol Bay Tribes and residents, Alaskans, commercial fishermen, and all those who have overwhelmingly opposed the Pebble Mine. We are confident the courts will uphold the EPA’s protections and reject Pebble’s attempts to revive a mining project that Alaskans do not support and the science has shown time and time again would be devastating for the waters that support salmon habitat and our way of life. Our lawmakers must step up and take action to permanently protect Bristol Bay – our future depends on it.” 

“We are disappointed, but not surprised, that Pebble Limited Partnership is trying every maneuver to bring back their mining project that Alaska neither wants nor supports,” said Katherine Carscallen, Director of Commercial Fishermen for Bristol Bay. “Time and time again, it has been proven that the Pebble Mine would irreparably damage the watershed that fishermen and the Tribes in the region rely on to sustain their livelihoods and way of life. The EPA’s protections are grounded in law, science, and overwhelming public support. We are confident that the courts will uphold these protections and protect the world’s greatest salmon fishery from the threat of the Pebble Mine.” 

“At this point, PLP is less a mining entity than a litigation vehicle for anti-conservation interests,” said Tim Bristol, Executive Director of SalmonState. “We are confident the court will eventually deny this cynical attempt to circumvent the will of the people and the law and uphold the EPA’s veto of the Pebble Mine. But the reality is, as long as there are people dumb and/or greedy enough to invest in Pebble and that land in Bristol Bay is open for mineral claims staking, the push for Pebble mine will continue. In order to protect Bristol Bay for good, Congress needs to act and act soon.” 

“Like a zombie that never dies, the Pebble Limited Partnership’s latest lawsuits seek to revive a project opposed by a strong majority of Alaskans, abandoned by its mining partners, and rejected by the last three Presidential administrations,” said Joel Reynolds, Western Director and Senior Attorney for NRDC (Natural Resources Defense Council). “For however long it may take, NRDC remains committed to defending the spectacular Bristol Bay watershed and its people from the toxic Pebble Mine. To the Pebble Partnership and Governor Dunleavy, we will see you in court.”  

Additional Information: 

The EPA’s Clean Water Act protections for Bristol Bay span two decades of research, scientific studies, and public engagement processes, making the Pebble Mine proposal the most studied mining proposal in American history. 

Bristol Bay and its salmon sustain the cultural and spiritual identity of the Tribes and people of the region, provide more than 50 percent of the world’s wild sockeye salmon, support an economy valued at over $2.2 billion, and employ tens of thousands of people in commercial fishing, hunting and sportfishing, outdoor recreation, and tourism.