The mining newspaper for Alaska and Canada's North
The mining newspaper for Alaska and Canada's North
As project developer prevails in court, opponents' initiative succeeds in borough election; EPA decision could carry more weight
Opponents of the controversial Pebble Project and the companies that hope to someday develop the massive copper-gold-molybdenum deposit in the Bristol Bay region of Southwest Alaska, each claimed a recent victory in the high profile struggle that has been cast as world-class mine versus a world-class salmon fishery.
The win for the Pebble Limited Partnership - a 50-50 joint venture between Anglo American plc and Northern Dynasty Minerals Ltd. to explore and develop the property was claimed Sept. 26, when the Alaska Superior Court ruled that state-issued permits to explore the colossal copper deposit did not violate the Alaska Constitution, thereby thwarting opponents' efforts to challenge the validity of the permits.
The anti-Pebble league triumph came three weeks later when residents of the Lake and Peninsula Borough voted 280 to 246 in favor of the "Save Our Salmon" initiative, an act aimed at prohibiting Pebble or any other large-scale development project in the borough seen as a threat to salmon habitat.
"This was a very close election and we are appreciative of the many voters from the Lake and Peninsula Borough who dedicated time to understand the true risks presented by this ill-conceived ordinance and the very real impacts it could have regionally," the Pebble Partnership wrote in response to the outcome.
While it is improbable that either of these victories will be the final word on whether a mine is built at the Pebble deposit, the U.S. Environmental Protection Agency's ongoing study of the Bristol Bay watershed could have a much more significant impact on the future of the project.
Permits ruled legal
The court ruling upholding the state permits resulted from a lawsuit filed in 2009 by Trustees for Alaska on behalf Nunamta Aulukestai - a coalition of eight Bristol Bay village corporations that are trying to stop development of a mine at Pebble. The group charged that the land and temporary water use permits issued to Pebble explorers for the past 20 years by the Department of Natural Resources are illegal because the state regulators did not seek adequate public notice and analysis of whether the authorizations for exploration are in the public's interest.
During the trial held in December 2010, the Alaska Department of Law defended DNR's issuance of the permits, and the Pebble Partnership intervened in the case.
"The State has issued permits behind closed doors without even looking at the harms to public resources. At last those harms will be addressed in court," Trustees for Alaska Attorney Nancy Wainwright said at the beginning of the trial.
The common theme in each of the plaintiffs' five constitutional claims, according to Alaska Superior Court Judge Eric Aarseth, was that the permits essentially granted Pebble explorers the exclusive use of an interest in state land and water as part of the authorized mineral exploration activities. The plaintiffs also claimed that exploration at the mammoth copper-gold-molybdenum project significantly impacted area resources and fish and wildlife habitat.
In a 154-page decision, Aarseth said the plaintiffs' evidence did not demonstrate that the issuance of the permits violated the state constitution or that the resulting exploration caused significant environmental impacts.
"Based on the evidence provided at trial, it is more likely than not that the permits provided for non-exclusive use of State lands and the activities conducted on site did not cause any significant impact or long-term harm to concurrent uses," the Superior Court judge concluded.
A ruling in favor of the plaintiffs could have caused the state to revamp the way it permits mineral exploration to include a public comment period, which would have caused significant delays to exploration and other projects that depend on the temporary water and land permits.
"We believe we prevailed because we demonstrated we had a careful and responsible exploration program that is not causing harm, the Pebble Partnership said in a written statement. "We also want to acknowledge the work conducted by the state of Alaska in administering the state's exploration program and in defending this program as sound. Hopefully the decision will bring some stability to those wishing to conduct mineral exploration on state lands."
SOS goes to court
While the "Save Our Salmon" initiative was aimed directly at preventing the development of Pebble, the borough ordinance resulting from the ballot measure could have statewide implications.
The State of Alaska and the Pebble Partnership - which view a borough ordinance resulting from the anti-Pebble initiative as unconstitutional and unenforceable because it seeks to restrict development of state-owned resources on state lands - challenged the ballot measure in Alaska court prior to the Oct. 4 election.
John Suddock, the Anchorage Superior Court judge who presided over the case, allowed the initiative to go on the ballot, scheduling the court to reconvene Nov. 7 to consider the constitutionality of a resulting Lake and Peninsula Borough ordinance.
In its previous legal filing the State of Alaska said, "The initiative would enact an ordinance that is unenforceable as a matter of law..." and "will inevitably conflict with, and be pre-empted by, state law."
The state's legal brief also notes: "The Alaska Constitution provides that the state has the policy of encouraging the development of resources by making them available for maximum use consistent with the public interest."
In addition to the Pebble Partnership and the State of Alaska, the initiative is opposed by a broad spectrum of Alaska interests, including a group of four Alaska Native village corporations representing seven Lake and Peninsula Borough communities whose private land holdings would be affected by the ordinance. It is also opposed by the Resource Development Council for Alaska, the Alaska State Chamber of Commerce, the Alaska Miners Association, Council of Alaska Producers, the Alaska Oil and Gas Association, Alaska Industry Support Alliance.
The Pebble Partnership will continue to advance the Pebble Project toward the completion of a prefeasibility study and developing a mine plan in anticipation of initiating federal and state permitting under the National Environmental Policy Act.
"In the meantime, the Pebble Partnership will continue to invest in Alaska's economic future with the goal of sharing in the near future a comprehensive development plan that fully and factually outlines this opportunity," the project developer said.
EPA results in 2012
The Pebble opposition has rallied the EPA to exercise its authority under the Clean Water Act to preemptively veto the project developer's permit applications before the NEPA process begins.
Under section 404 of the CWA the EPA can deny the discharge of dredged or fill material into an area if it believes the disposal "would have an unacceptable adverse impact on one or more of various resources, including fisheries, wildlife, municipal water supplies, or recreational areas."
As a result of the request, the federal environmental agency launched a study to better understand how future large-scale development projects may affect water quality and Bristol Bay's salmon fishery.
"Gathering data and getting public input now, before development occurs, just makes sense. Doing this we can be assured that our future decisions are grounded in the best science and information and in touch with the needs of these communities. We look forward to working with Alaskans to protect and preserve this valuable resource," said EPA Regional Administrator Dennis McLerran.
The EPA stresses that the decision to study Bristol Bay is not an indication that the agency has made a regulatory decision on the development of the massive copper project; instead it represents proactive steps by the agency to better understand the watershed and gather important scientific information.
The Bristol Bay assessment "will assure the EPA that its future decisions are grounded in the best science and information and (is) in touch with the needs of these communities," McLerran said.
The regulatory agency expects to publish a draft of the results of its study available for public, tribal and stakeholder review in spring 2012 and a final report in late summer of 2012.
Over his more than 16 years of covering mining and mineral exploration, Shane has become renowned for his ability to report on the sector in a way that is technically sound enough to inform industry insiders while being easy to understand by a wider audience.
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