Pebble Mine Decision: Litigation Likely to Follow Final Determination

A map of the Bristol Bay watershed, which the proposed Pebble Mine project would abut. Image: U.S. Environmental Protection Agency.

A final determination on the future of a proposed copper, gold and molybdenum mine in Alaska’s Bristol Bay watershed could be handed down in February by the Environmental Protection Agency, but more litigation and possible deadline extensions could follow. 

Still, the announcement in early December by Casey Sixkiller, Regional 10 administrator for the EPA, that he had transmitted to the agency’s headquarters a Recommended Determination to prohibit and restrict use of certain waters in the watershed for certain discharges of dredged or fill materials from the mine got plenty of attention.

Advocates for the Canadian-owned mine, a subsidiary of the diversified global mining group Hunter Dickenson in Vancouver, British Columbia, cried foul while opponents of the project hailed the possibility that EPA’s final decision would put an end to any possibility that the mine would be built.

At that point, the EPA’s final decision was expected in early February.

“It’s a big step in the right direction and long overdue,” mused former Alaska State Senate President Rick Halford, an avid outdoorsman, who has spent years working to protect the Bristol Bay watershed.  “But it’s not over yet. This is (just) one good big piece,” with the possibility of more extensions and litigation to come, he noted.

“EPA did the right thing,” Chris Wood, president and chief executive officer of Trout Unlimited said. “Bristol Bay is the world’s finest salmon fishery. The vast majority of local Alaska Native villages and sportsmen and women across America want to see it protected. Thanks to EPA for applying common sense to a common problem for the common good.”

“We are glad to be one step closer to ending this long chapter in our region’s history, and looking forward, we will never be complacent in fighting for Bristol Bay, its people, its fish, and our Native way of life,” said Jason Metrokin, president and chief executive officer of the Bristol Bay Native Corp., an Alaska Native regional corporation founded under the Alaska Native Claims Settlement Act, with a number of shareholders engaged in the multi-million-dollar commercial and sport salmon fisheries in Bristol Bay.

Alaska Native entities were also pleased with the EPA Region 10 decision.

“After 20 years of Pebble hanging over our heads, the Biden administration has the opportunity to follow through on its commitments by finalizing comprehensive, durable protections for our region as soon as possible,” Alannah Hurley, executive director for United Tribes of Bristol Bay, said. “We look forward to reviewing the EPA’s Recommended Determination in greater detail to ensure it achieves the goal of protecting our people and region from the threat of the Pebble Mine.”

John Shively, chief executive officer of the Pebble Limited Partnership, called the EPA Region 10 action a clearly massive overreach by the EPA and well outside what Congress intended for the agency when it passed the Clean Water Act. 

“Those who think we can build a green energy economy in this country and stop mining at the same time are living in a fantasy world,” Shively said. “The EPA has made wildly speculative claims about possible adverse impacts from Pebble’s development that are not supported by any defensible data and are in direct contradiction to the facts validated in the USACE’s Final Environmental Impact Statement (FEIS) for the Pebble Project.”

The FEIS clearly states that Pebble can be developed without harm to the Bristol Bay fishery,” he said. “Congress did not give the EPA broad authority to act as it has in the Pebble case. This is clearly a massive regulatory overreach by the EPA and well outside what Congress intended for the agency when it passed the Clean Water Act.”

“If the EPA finalizes its veto and precludes any development on over 300 square miles of Alaska land, it would be violating Alaska’s Statehood Compact and the ‘no more’ clause of the Alaska National Interest Lands Conservation Act,” Shively added.

Alaska Gov. Mike Dunleavy said finalizing such action would set dangerous precedent, vetoing a permit that had not been issued and imposing a blanket prohibition on development over more than 300 square miles of state land.

“The state of Alaska has the duty, under our constitution, to develop its resources to the maximum in order to provide for itself and its people, so it’s important that any and all opportunities be explored in furtherance of this idea,” the governor said.