Federal authorizations for Western Alaska’s Donlin mine face legal scrutiny

A proposal to build one of the world’s largest gold mines along the Kuskokwim River is facing what has now become a legal question: Did the federal government, when it awarded key approvals for the project in 2018, properly consider the environmental, cultural and health risks?

That question is at the heart of a lawsuit filed by tribal organizations that challenges authorizations granted to the Donlin Gold mine by the U.S. Army Corps of Engineers and the U.S. Bureau of Land Management.

Tribal governments in the Yukon-Kuskokwim Delta, the Western Alaska region where the mine project is located, last year filed the lawsuit in U.S. District Court in Anchorage challenging the decisions.

Six years after the agencies issued their authorizations, the parties argued their points in a hearing held Monday before Judge Sharon Gleason.

A major flaw in the environmental impact statement process that led to the approvals, the plaintiffs argue in their lawsuit, is the lack of analysis of a spill of mining waste from a catastrophic dam failure.

That point came up in Monday’s court hearing.

The environmental analysis conceded that there is a 2% chance of a dam failure causing a catastrophic spill, said Maile Sinn Fong Tavepholjalern, an Earthjustice attorney representing the six tribal governments that are plaintiffs in the case.

“But a 2% chance of a catastrophic spill is not actually that remote. If there was a 2% chance that a plane might crash, it wouldn’t be fine,” Tavepholjalern said.

The agencies’ analysis of dam failures used information from a 2014 dam breach at a mine in the Canadian province of British Columbia, Mount Polley. That dam failure caused a spill of 17 million cubic meters of water and 8 million cubic meters of solid mine waste materials, according to the provincial government.

But the agencies reviewing the Donlin project failed to consider a more recent and much more serious collapse in Brazil in 2015 that killed 17 people and caused two to be missing, Tavepholjalern said.

Other issues argued in the hearing were the impacts of the mine and its associated barge traffic to Kuskokwim River fish and the anticipated effects of development on human health in the region.

“These areas are serious. They go to the heart of the Y-K Delta and the core of our clients’ concerns for their health and wellbeing, not just for themselves, but for the future generations,” Tavepholjalern said.

Attorneys representing the Corps of Engineers, which issued a Clean Water Act permit for the mine, and the BLM, which approved a right-of-way for a natural gas pipeline needed to power the mine, defended what they said was a lengthy and laborious review process that led to the authorizations.

“A tremendous amount of work has gone into analyzing the potential environmental impact of these agency decisions. And then, the agencies imposed mitigations and special conditions to deal with the adverse impacts of the decisions. The Corps and BLM decisions should be affirmed,” Sara Costello, a U.S. Justice Department attorney, said in the hearing.

Also defending the agencies’ actions at the hearing were attorneys representing Donlin Gold LLC, the partnership developing the mine; the state of Alaska; and a Native corporationa owned by Yup’ik people in the Yukon-Kuskokwim Delta. Calista Corp., the regional corporation established though the Alaska Native Claims Settlement Act, and the Kuskokwim Corp., are also partners in the mine project. Calista owns the subsurface mineral rights at the mine site and the Kuskokwim Corp. owns the surface lands.

Divisions among Native organizations

The Donlin mine has been a controversial subject in the region, pitting the Native corporations against several tribal organizations.

The economic benefits would accrue to Native corporations around the state through a revenue-sharing mandate in the Alaska Native Claims Settlement Act, Matthew Singer, Calista’s attorney, noted at the hearing. “The basic promise of ANCSA is tied to projects like this,” he told Gleason. Tribes participated in the environmental review process, which ran over several years, he said. “Even before that, my client has been engaged for 20 years as a partner with Donlin in developing this project in a manner that’s consistent with its values, that’s protective of subsistence and it provides actual benefit for local people,” he said.

Mine opponents, however, argue that Donlin puts at risk the Kuskokwim River ecosystem, where salmon stocks have already faltered. “The history and track record of large-scale, open pit sulfide mines paints a dismal future picture for the Kuskokwim. Whether or not state and federal authorities continue to rubber stamp mine permits with blatant disregard for the rights of the people on the ground is not just a matter of environmental degradation, but of human rights and morality,” says the website of a tribal coalition, Mother Kuskokwim, that opposes the mine.

The Corps and BLM authorizations are just two in a series of federal and state approvals that must be secured to build the mine, currently in an exploration and planning phase. In a separate case that has reached the Alaska Supreme Court, tribes opposed to Donlin are seeking to overturn state water-use permits granted to the mine developers.

The state Supreme Court is scheduled to hear arguments in the water-rights case on July 31.

[See also: In Northwest Alaska, an economic engine runs low on ore]

Pebble mine lawsuits also pending

While the Donlin legal challenges play out, other lawsuits in the works are targeting federal action that blocked construction of a different mine, the Pebble project in the Bristol Bay region.

The most recent legal event concerning Pebble is a new lawsuit filed on Monday that seeks to overturn the Environmental Protection Agency decision in January 2023 that bars the mine’s development. The new lawsuit was filed in U.S. District Court in Anchorage by two pro-mine Native corporations, Iliamna Natives Ltd. and the Alaska Peninsula Corp.

The EPA decision has jettisoned an economic lifeline, the corporations argued in their lawsuit. “EPA’s veto has jeopardized Pebble LP’s plan to develop a mine at the Pebble deposit. And without the mine, the Native Corporations will lose hundreds of millions of dollars in business with Pebble LP. The contracts with Pebble LP have brought economic stability back to a dying region,” the lawsuit said.

Both the state and the project’s developer have filed similar lawsuits, as well as complaints in the U.S. Court of Federal Claims in the District of Columbia seeking compensation from the federal government for what they say is revenue that will be lost if the mine is not allowed to be built. The claim filed there by the state alleges that the federal government owes $700 billion in compensation for revenues that would have been produced over 100 years of Pebble’s operation.

Several groups opposed to the mine last month filed motions to intervene on behalf of the EPA and its action on Pebble.

Motions to intervene were filed by a coalition of environmental groups and by a coalition of Native corporations and tribal organizations, fishing organizations and Bristol Bay businesses.

The fight over Pebble is being waged in Congress as well. U.S. Rep. Mary Peltola, D-Alaska, introduced a bill on May 1 that would codify the EPA decision into federal law, making Clean Water Act protections permanent in the affected areas.

“Whole communities rely on Bristol Bay’s watershed for subsistence and as a deeply interwoven part of their social and cultural practices. In introducing this bill, we’re moving to protect our fisheries and streams, water supply, and the deep value that these waters have had to Alaska Natives who have relied on them for thousands of years,” Peltola said in a statement when she introduced the Bristol Bay Protection Act.

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