State court hears arguments in lawsuit challenging key permit for Donlin Gold mine

A Bethel tribal government argued Friday in Anchorage Superior Court that the state improperly granted a permit for the planned Donlin Gold mine, while the state argued the mine met key environmental standards.

Orutsararmiut Native Council filed a lawsuit that seeks to reverse a key construction permit for the mine in Southwest Alaska.

The council, represented by the environmental law firm Earthjustice, filed suit in both federal and state courts against the state of Alaska and the federal government, seeking to challenge a permit needed to disturb salmon-bearing creeks in the mine site.

Oral arguments in the federal case took place in June. The state case, filed in 2021, was assigned to Superior Court Judge Catherine Easter.

She remanded the issue back to DEC for further work, but the lawsuit continued, leading to the oral arguments held on Friday.

In the state case, Orutsararmiut argues that the commissioner of the Alaska Department of Environmental Conservation improperly granted the permit to Donlin’s developers.

“At the heart of this case is that Donlin Gold has not yet figured out a way to operate the proposed mine in a manner that would comply with water quality standards needed to protect salmon,” said attorney Tom Waldo who represented ONC in court on Friday.

Critically, he said, the permit would allow the mine to “substantially dewater Crooked Creek,” harming salmon egg beds, known as redds, in the area.

State regulations require developed salmon streams to be kept below a certain temperature in order to preserve young salmon, and they include what’s known as an “antidegradation standard” that prohibits a developer from significantly reducing water quality in the area.

In court on Friday and in written briefs, attorneys for the DEC and the mine owners argued that both standards were met. The development plan envisions drying out only 3.9% of the redds in the Crooked Creek watershed, and that would take place only in extremely low-water periods.

“It’s not zero, but it’s minor, and it also only occurs 10% of the time,” said Eric Fjelstad, an attorney representing Donlin Gold in court.

Water temperatures would remain below the regulatory limit, said attorney Cody Doig, representing DEC.

“All of this adds up to one thing: Salmon spawning will remain robust throughout the entire watershed,” he said.

But Waldo argued that the state failed to take into account the effects of climate change, which stand to make conditions warmer than the baseline case used to calculate whether the project is legal.

The mine is expected to operate through at least 2055, Waldo said, and if temperatures are near the limit now, the state should acknowledge that they will soon be above the limit.

Fjelstad countered by stating that the permit approval doesn’t include steps Donlin could take to ameliorate the problem, such as introducing cold water into the stream.

Waldo also objected to the idea that impacts can be measured on a watershed-wide area. Instead, he argued, state law and regulations require DEC to protect all parts of a waterbody.

“Counsel’s admission that the impact is not zero is essentially an admission that there will be a loss of existing uses,” Waldo said.

Several members of local tribal organizations listened to the arguments by phone.

“In continuing to uphold this unlawful water quality certificate, the Alaska Department of Environmental Conservation (DEC) is dismissing the damage we know the mine will cause to salmon. The agency is also ignoring climate change, which we all know will happen,” said ONC Chairman Walter Jim, in a written statement. “This water quality certificate knowingly and illegally sacrifices salmon, which our people depend on for their existence, and should be rescinded.”

The state’s congressional delegation, Gov. Mike Dunleavy and other state-level politicians have come out in support of the mine, calling it a critical economic development project.

Calista Corp., the regional Alaska Native corporation in the area, owns the mineral rights under a portion of the mine site and has said that development will benefit Alaska Native shareholders.

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