Debate over Pebble mine in Alaska’s Bristol Bay region moves to dueling Supreme Court briefs

The company trying to build a huge copper and gold mine in the salmon-rich Bristol Bay will keep fighting for the project despite a decision by the federal government to keep the proposed development site off-limits to large-scale metals mining.

John Shively, chief executive officer of the Pebble Limited Partnership, made that vow in a presentation at the Alaska Miners Association annual convention in Anchorage.

He said the Pebble mine had the potential to transform the economy and improve lives in the rural Bristol Bay region, just as he said the Red Dog Mine, one of the world’s biggest zinc producers, has done in Northwest Alaska.

“That’s why we’re still fighting this. The resources are there. We’re still here. We’re not going anywhere,” he told the convention audience in his presentation Thursday.

The company’s fight is backed by the administration of Gov. Mike Dunleavy. At his direction, the state in July filed a lawsuit directly to the U.S. Supreme Court to try to overturn a decision by the Environmental Protection Agency that bars permitting for any Pebble-type mine in key areas of the Bristol Bay watershed.

Dunleavy, in brief remarks at the miners’ convention, expressed pride in his support of the controversial project.

“I was told if I supported Pebble, I would never win another election. Well, I don’t know. I’m here. I’m still here,” he said, drawing applause from the audience. The Republican governor was handily reelected last November.

The EPA decision invoked a rarely used provision in the Clean Water Act to preclude any wetlands permit for the project. The agency determined that the Pebble mine posed an unacceptable risk to the Bristol Bay watershed, essential to a region with the world’s largest sockeye salmon runs and with major fisheries and wildlife populations that depend on that salmon.

To help reverse that decision, the Pebble Limited Partnership and its owner, Vancouver-based Northern Dynasty Minerals Ltd., in September filed an amicus brief in support of the state’s Supreme Court effort. Filing supportive briefs, too, were the Alaska Industrial Development and Export Authority and numerous Alaska and national resource-development groups.

The possibility that the project will be resurrected has also drawn Pebble mine opponents into the new Supreme Court faceoff.

The Bristol Bay Native Corp. and United Tribes of Bristol Bay jointly filed a motion with the Supreme Court on Thursday in support of the EPA and against the state effort, and Trout Unlimited filed a similar motion.

Representatives of the Bristol Bay Native Corp. and United Tribes of Bristol Bay, in a news conference Thursday, noted that their organizations had been among those that first petitioned the EPA for Clean Water Act protections against the proposed mine.

“Defending this place, defending our way of life, that’s why we’re here today,” Daniel Cheyette, vice president for lands and resources for Bristol Bay Native Corp., said in the news conference. “The state of Alaska has taken the extraordinary measure of directly seeking the jurisdiction of the Supreme Court to undo the accomplishments our organizations have worked for 15 years to achieve. That’s unacceptable. The point of our amicus brief is to defend what we have worked so hard to accomplish.”

Alannah Hurley, executive director of United Tribes of Bristol Bay, said her organization and others in the region have had to fight the state government over the issue. “Unfortunately, after 20 years, we’re still here fighting a hostile governor trying to transform our home into a toxic mining district,” she said. “Our people and our fishery deserve to be free from the threat of the Pebble mine. And as we have proven in the last two decades we will stand together and stand strong until our home and future generations are protected.”

David Frederick, an attorney representing the corporation and the tribal group, said the state’s legal move is unprecedented and “has no logic” in the way that Congress has determined such disputes to be addressed. “Alaska is improperly invoking or attempting to invoke the jurisdiction of the Supreme Court,” he said in the news conference. If the state wants to challenge the EPA action, it should do so at the U.S. District Court level, he said.

The Justice Department, in a brief filed Thursday that responds to the state action, made similar arguments.

Shively acknowledged that the state’s legal move is unorthodox. “It’s unusual but if it works then we basically skip the lower court,” he said in his presentation at the Alaska Miners Association event.

The Supreme Court has not weighed in. Frederick said a decision about whether to take the case might come by January.

Regardless of what happens in court, the Pebble project faces another obstacle, Shively conceded: the loss of access to land that the company planned to use for a road to the mine site.

Land owned by the Pedro Bay Native Corp. that the Pebble Limited Partnership had planned to use for a road link to the mine is now protected from development through a $20 million conservation project. The Conservation Fund, a national nonprofit, and the Bristol Bay Heritage Land Trust raised the money for a conservation easement on 44,000 acres owned by the village Native corporation.

Polling has consistently shown that the proposed mine is unpopular statewide and deeply unpopular in the Bristol Bay region.

Pebble mine supporters and opponents agree on one thing. Both sides say the current legal fight goes beyond that particular mine.

Dunleavy, in his comments at the mining convention, said Pebble’s fate will affect other Alaska resource development projects.

“Saying no to the other guy’s project doesn’t keep your project safe. Throwing Pebble under the bus doesn’t save Donlin or doesn’t save Ambler Road, as we can see,” he said, referring to separate projects that have also attracted fierce opposition, one a gold mining project in the Kuskokwim River region and the other a 211-mile access road to enable commercialization of copper deposits in Arctic northwestern Alaska.

“It doesn’t matter what project we’re looking at, the NGOs in the Lower 48 and Washington will try and shut it down. But I would ask that all of us here fight for each and every one of these projects so that the state has a future, and our kids and grandchildren have a future as well,” Dunleavy continued.

Hurley, on the opposite side of the debate, said the Bristol Bay region needs additional protection beyond the EPA action on Pebble.

With about 20 other active mining claims and potential projects in the region, there should be action from Congress, “any type of legislation that’s going to help us ensure that our grandchildren are not fighting these projects piecemeal from now into eternity. That’s not fair to the people of Bristol Bay. That’s not fair to the state,” Hurley said. “We are really in need of broader watershed-wide protections so that Bristol Bay can continue being the salmon powerhouse that it has been for thousands of years.”

Originally published by the Alaska Beacon, an independent, nonpartisan news organization that covers Alaska state government.