Federal Court Ruling Supports EPA in Mine Project

A federal district court judge in Anchorage has ruled in favor of the Environmental Protection Agency decision to withdraw proposed protections for fisheries as Canadian interests pursue development of a massive mine in the Bristol Bay watershed.

The ruling handed down on April 17 by US District Court Judge Sharon Gleason stemmed from the EPA’s decision of Dec. 10, 2019, to withdraw its proposed action under the Clean Water Act that would have prohibited the US Army Corps of Engineers from issuing a permit to allow development of the copper, gold and molybdenum Pebble mine on lands abutting the watershed that is home to the world’s largest run of wild sockeye salmon.

The EPA argued that exercise of its authority was akin to enforcement action and therefore presumably unreviewable. The court ruled that a regional administrator is not required to publicly explain a decision to withdraw a proposed determination, only that the regional administrator notify the EPA administrator of his decision, and that plaintiffs failed to state a claim upon which relief can be granted.

“We are obviously very disappointed, but it is not the end of the world by any means,” said Norm Van Vactor, president and chief executive officer of the Bristol Bay Economic Development Corp., in Dillingham, in an interview on April 20. “It was not a decision on the mine itself. It was a decision on the process that the EPA was exercising.” Plaintiffs in the case, including BBEDC, the Bristol Bay Reserve Association, Bristol Bay Regional Seafood Development Association, Bristol Bay Native Association and United Tribes of Bristol Bay planned to meet with legal counsel to determine their next step.

The Bristol Bay Defense Alliance had sued the EPA in October 2019 over its withdrawal of the proposed Clean Water Act protections.

“Despite this decision, our mission is unchanged: protecting and promoting the Bristol Bay fishery,” said Any Wink, president of the BBRSDA. “The Bristol Bay Watershed Assessment made it clear that this fishery needs the highest level of protection, and we will do everything we can to ensure the salmon continue returning for future generations.”

The Pebble Limited Partnership in Anchorage, a subsidiary of Hunter Dickinson Inc, a diversified, global mining group based in Vancouver, British Columbia, contends that the project can be developed without harm to the fishery, in which thousands of people engage annually on a commercial, sport personal use and subsistence basis.

“This decision moves Pebble one step closer to completing its federal permitting process,” said Tom Collier, chief executive officer of the PLP. “We have long held that the preemptive veto against Pebble was poor public policy and that decisions about the merits of developing a mime at the Pebble prospect should be made through the traditional permitting process,” he said.

Gleason noted in her ruling that vetoes under Section 404 (c ) of the Clean water Act are rare, with only 13 such actions in the 42-year history of that legislation.