Indian Time - A Voice from the Eastern Door

The Dunleavy government requested the U.S. Supreme Court on Wednesday to annul the decision made by the Environmental Protection Agency to impede the contentious Pebble copper and gold mine.

The government submitted a “bill of complaint” to the highest judicial institution in the country, asserting that the federal body’s employment of the Clean Water Act to obstruct the Pebble project infringes on the state’s entitlement to utilize its natural resources. The submission elaborates on the state’s objection and also requests the right to fully present its case to the topmost court in the land.

The approach of appealing directly to the Supreme Court without involving lower courts is an irregular move. However, it is justified “given the extraordinary decision being challenged,” said Alaska Attorney General Treg Taylor in an announcement distributed by the state’s Department of Law.

“If EPA can rely on undefined terms and subjective standards instead of sound science to bypass the regular State and federal permitting processes here, it can do it anywhere, from large mining projects such as this, down to a family building their dream home. It’s an indefensible and unprecedented power grab that the U.S. Supreme Court should find unlawful,” Taylor said in the statement.

In the statement, Governor Mike Dunleavy highlighted concerns made in the brief that the EPA action effectively confiscates state property and conflicts with the provisions of the Alaska constitution.

“Our constitution is clear: Alaska is responsible for utilizing, developing, and conserving all of the State’s natural resources for the maximum benefit of its people,” Dunleavy said in the statement. “Bureaucrats in Washington D.C. are exercising unbridled and unlawful power to choke off any further discussion on this important decision affecting so many Alaskans.”

On January 30, the EPA declared its intention to employ a seldom-invoked clause of the Clean Water Act to prevent the construction of the Pebble Mine or any similar metals mine in the region. This declaration concluded a process that spanned over ten years, initiated by petitions from Native groups in 2010 requesting the federal body to use the Clean Water Act to stop the mine’s approval. Section 404(c) of the law allows the EPA to obstruct a project that might result in dredging or filling with an “unacceptable adverse impact” on local water supplies, wildlife, fisheries, or recreational regions.

Under the Obama administration, the EPA composed an evaluation of the Bristol Bay watershed which was finalized in 2014. Following the regulatory procedure, the EPA under the Obama administration proposed a Section 404(c) ban on Pebble or a comparable mine in the watershed, referencing the irreversible harm to salmon habitats crucial for humans and wildlife alike. This process was postponed due to legal actions and put on hold by the subsequent Trump administration, but was later reinstated by the Biden administration.

The state’s 91-page report submitted on Wednesday portrays the EPA decision as depriving the state of economic value, particularly the mining potential of the designated land. The Pebble deposit holds copper, gold, and other minerals.

“Due to its remoteness and lack of infrastructure and development, the only economically productive use for the land is mining. But by making it impossible for the State to utilize the land’s mineral resources, the EPA has effectively confiscated the land and created a de facto national park contrary to federal prohibition,” the document says.

However, for those opposing the mine, the region intended for Pebble carries value for its contribution to the Bristol Bay ecosystem, which houses the largest sockeye salmon runs in the world and forms the foundation for significant commercial and subsistence fish harvests.

The idea of constructing an immense open-pit mine has faced resistance for a lengthy period from fishing, environmental, and Native groups, including the regional Bristol Bay Native Corp. Surveys conducted by the Bristol Bay Native Corp., have displayed a steady opposition to the mine throughout the state since 2012, and even more profound opposition within the region itself.

Representatives from groups that have long contested the mine, and who celebrated the EPA’s decision earlier this year, expressed their shock and disappointment at the state’s appeal to the Supreme Court on Wednesday.

“Today’s legal filing from the Governor is a slap in the face to Bristol Bay. Contrary to his false narrative, it was our Tribes, Alaska’s First People, who requested this action because politicians like Governor Dunleavy slammed the door in our face and put the interests of a Canadian Mining company above our rural villages and our world class salmon fishery,” Alannah Hurley, executive director of the United Tribes of Bristol Bay, said in a statement.

According to Hurley, the action, “is grounded in sound science” and predicted that Dunleavy’s attempt will fail. “The Governor is once again ignoring the will of Alaskans and legal process by filing an action directly in the Supreme Court. Nevertheless, our Tribes will continue to defend EPA’s Clean Water Act protections for our region. We will use every tool at our disposal to protect our waters, our salmon, and our people,” she said.

Trout Unlimited’s Alaskan director, Nelli Williams, also issued a statement.

“The Governor is ignoring Alaskans and science with this lawsuit. And even more appalling, he is using public funds to prop up out-of-state mining executives at the expense of Alaska’s salmon and all the people who rely on them. It’s anti-Alaskan,” she said.

Alaska regional managing attorney for Earthjustice, Carole Holley, said the effort “goes against the wishes of most Alaskans.” She added: “It’s a highly unusual legal move, and also a highly unpopular one.”

However, the Vancouver-based Northern Dynasty Minerals Ltd., which is the owner of the Pebble Limited Partnership, praised the administration’s action and promised to support the legal battle.

“The Bill of Complaint filed by Alaska is a welcome development in the long Pebble saga,” Ron Thiessen, the company’s president and chief executive officer, said in a statement. “Northern Dynasty strongly, and I mean very strongly, supports all of the arguments set forth by the State and we congratulate the State for bringing these claims directly to the U.S. Supreme Court. Northern Dynasty intends to prepare and file with the Supreme Court appropriate briefs to support the State’s case.”

The action by the state coincides with the nearing end of the Bristol Bay commercial salmon season. As of Wednesday, commercial fishers have caught 38.6 million salmon, primarily sockeye, this summer, based on preliminary data from the Alaska Department of Fish and Game.

The harvest this year, to date, is significantly less than the over 60 million salmon collected last year from a record-breaking Bristol Bay sockeye run of 79 million fish. However, it surpasses the recent 20-year average, according to data from the Department of Fish and Game. The department notes that Bristol Bay sockeye runs have been particularly robust in recent years.

The Supreme Court will not convene until October.