U.S. Federal District Court in Alaska approves motion to include USACE in ongoing litigation over Pebble Mine permit veto.

Northern Dynasty Minerals Ltd. Aug. 19 announced that the U.S. Federal District Court in Alaska has granted its request to amend the ongoing lawsuit against the Environmental Protection Agency (EPA) to also include the U.S. Army Corps of Engineers (USACE) as a defendant.

In January 2023, EPA issued a 404(c) veto under the Clean Water Act, blocking Northern Dynasty's Pebble project from advancing due to concerns about its impact on the Bristol Bay watershed. This decision essentially banned any potential mining development across a 309-square-mile area of Alaska state lands.

Claiming federal overreach, Northern Dynasty, Pebble Limited Partnership, and the state of Alaska responded with legal action, seeking to challenge the EPA's decision to block the project – a decision made preemptively based on USACE's findings – without conducting its own independent assessment. They are also seeking to reinstate the permitting process.

"We are filing litigation to fully contest the EPA's unprecedented and unlawful actions against the Pebble project," wrote Northern Dynasty at the time litigation began. "Since our objections to the politically motivated actions by the EPA have long fallen on deaf ears, we have sued the agency in federal court in Alaska to have our issues fairly and objectively heard."

This ongoing legal battle has evolved from a 2020 permit denial by USACE, which cited concerns about potential damage to the Bristol Bay watershed, including disruptions to salmon habitats and the risks posed by a possible tailings storage failure.

When the EPA issued its preemptive veto in 2023, it used the same concerns raised by USACE as enough confirmation to enact its decision.

Despite the veto, Northern Dynasty attempted to have USACE reconsider the initial denial. However, the Corps stated it could not reevaluate the denied permits due to the veto.

"USACE's appeal remand decision confirms that the EPA's determination is a controlling factor that cannot be changed by a USACE decision maker, and the application is denied without prejudice, regardless of any review of the issues found to have merit," Army Corps of Engineers – Alaska District penned in an April 17 statement on the Pebble Mine permit appeal process.

This legal entanglement prompted Northern Dynasty to seek legal recourse, asking the court to hold both agencies accountable for blocking the project's progress based on what they view as flawed and interdependent reasoning.

In June, Northern Dynasty and Pebble Limited Partnership filed a motion to amend the complaint with the court to reverse USACE's decision to deny the project a permit.

"In this decision the court accepted our argument that the veto, to a large extent, was based on the USACE permit denial and therefore the cases are related and should be heard together," said Northern Dynasty President and CEO Ron Thiessen.

"The intent of this litigation is to put the permitting process for Pebble back on track, after it was derailed by wrongful actions taken by both EPA and the USACE, for political purposes. The court's decision allows us to expose the flawed and interrelated actions by both agencies in one complaint," Thiessen added. "Combining these cases is more efficient in terms of time and expense than trying them separately, and we are pleased the court has agreed with our position. In addition, we believe that critical evidence and testimony in the administrative appeal process will demonstrate the erroneous and political nature of the permit denial and subsequent EPA veto."