On
May 1, 2024 Rep. Mary Peltola (D-AK) introduced a bill, titled the “Bristol Bay Protection Act,”
in the House of Representatives. Such legislation, if passed and signed into
law, would finally end the long-running conflict that has pitted proponents of
the so-called “Pebble Mine” against Alaska Native peoples and others who have
long harvested, enjoyed, and depended upon the abundant natural resources of
Alaska’s Bristol Bay watershed.
Bristol Bay is one of the last, and certainly one of the
largest, remaining sanctuaries for wild Pacific salmon. Its waters host
naturally spawned populations of all five salmon species and support not only
healthy runs of Chinook, coho, chum and pink salmon, but also the largest
sockeye salmon run in the world.
Approximately 46 percent of the world’s wild sockeye salmon
return to the Bristol Bay watershed and run up its six rivers to spawn. Those
salmon support large and economically valuable commercial and recreational
fisheries, as well as subsistence fisheries that have supported Indigenous
peoples for millennia. Two cultures present in the watershed, the Yup’ik and Dena’ina, are some of the last remaining
sustainable, salmon-based cultures in the world.
Yet salmon are not the only wildlife in the watershed. It is home to 29
species of fish, 190 species of birds, and over 40 species of mammals. Such
diversity of life, in turn, provides social and economic benefits for people,
supporting not only subsistence hunting, but also businesses that attract sport
hunters, wildlife watchers, and other tourists.
The Bristol Bay watershed also contains substantial mineral resources, particularly copper and
gold. However, the metal ores are of low quality, so that only very large
mines, producing very large quantities of mine-related waste, would be
economically viable.
The varied natural resources of the Bristol Bay watershed have
led to a clash of values that will determine the future of the region, as traditional users of
Bristol Bay’s living resources have come into conflict with those who covet its
mineral deposits, and would develop mines and related infrastructure that would
pose a serious threat to the watershed’s fish and wildlife. Since that conflict
began nearly a quarter-century ago, the living resources of Bristol Bay, along
with their traditional users, have ridden a roller coaster of legal and
political actions that has seen their status change from protected to
threatened to protected again, sometimes over the course of a very few weeks.
The roots of the conflict date
back at least to 2005, when Northern Dynasty Minerals (Northern Dynasty)
purchased the rights to the so-called “Pebble Deposit,” a deposit of copper,
gold, and molybdenum ore that Northern Dynasty hoped to exploit, despite
possible harm to the Bristol Bay ecosystem. That conflict grew more intense in
2014, after the United States Environmental Protection Agency (EPA) completed
its assessment of the impacts of large-scale mining on the fish, wildlife, and
people of the Bristol Bay watershed, and issued a proposed determination under
section 404(c) of the Clean Water Act “to restrict the use of certain waters of
the Bristol Bay watershed for disposal of dredged or fill material associated
with mining the Pebble Deposit…”
The EPA took such action “because of the high ecological and
economic value of the Bristol Bay watershed and the assessed unacceptable
environmental effects that would result from such mining.”
The proposed determination preemptively halted the permitting
process that had to be completed before the Pebble Mine could be developed.
Northern Dynasty responded by bringing a lawsuit challenging the agency’s
action.
The EPA initially defended against the lawsuit, but on May 12,
2017 it issued a press release announcing
that Scott Pruitt, the new EPA administrator appointed by President Donald
Trump, had reached a settlement with the Northern Dynasty. That settlement,
which was allegedly intended to guarantee “a fair process for their permit
application,” included EPA’s agreement to withdraw the proposed determination
and take no further actions pursuant to the Clean Water Act until at least four
years had passed, or until the Army Corps of Engineers (Corps) issued a final
environmental impact statement, whichever came first. Northern Dynasty agreed
to withdraw its lawsuits and to refrain from filing any Freedom of Information
Act requests during that period.
With the natural resources of the Bristol Bay watershed again in
jeopardy, a period of turmoil began, which saw the EPA halt its withdrawal of
the proposed determination in response to strong public comment, despite the
terms of its agreement with Northern Dynasty, then begin the withdrawal process
again after the EPA’s general counsel directed the relevant EPA
regional office to do so.
A press release announcing
the EPA’s withdrawal of the “outdated, preemptive proposed determination to
restrict use of the Pebble Deposit area as a disposal site” was issued on June
30, 2019.
On July 24, 2020, the Corps released a final environmental analysis that
found the mine “would not be expected to have a measurable effect on fish
numbers” in the Bristol Bay watershed, making the development of the Pebble
Mine seem certain.
But then the seesawing began again.
Just a month after releasing its final environmental analysis, the Corps announced that
it had made “factual determinations that discharges at the mine site would
cause unavoidable adverse impacts to aquatic resources and, preliminarily, that
those adverse impacts would result in significant degradation to those aquatic
resources. Therefore…in-kind compensatory mitigation within the Koktuli River
Watershed will be required to compensate for all direct and indirect impacts
caused by the discharges into aquatic resources at the mine site.” Other
adverse impacts at other locations would also require mitigation.
It would be very difficult for Northern Dynasty to perform the
required mitigation, yet if it failed to do so, it would not receive the permit
needed to develop the Pebble Mine.
At the same time that Northern Dynasty struggled with that
issue, political pressure against
the mine was growing. In September 2020, environmentalists secretly recorded
Northern Dynasty’s chief executive officer telling prospective investors that
the mine would ultimately be much larger, and would continue operations far
longer, than was specified in the permit application. The public release of
such statements caused the project to be scrutinized much more closely. And it
turned out that some people very close to then President Trump, including his
son Donald Jr., hunted and fished in the Bristol Bay region, and didn’t want to
see the mine destroy any part of the watershed.
Ultimately, the Corps did a surprising about-face, and
determined that the permit sought by Northern Dynasty should not be issued,
citing problems with the waste disposal plan and declaring that “the proposed
project is contrary to the public interest.” Northern Dynasty appealed that
decision to the headquarters of the Corps’ Pacific Ocean Division, but that appeal was denied on
April 25, 2024.
While that was going on, conservation advocates brought a suit
challenging the EPA’s withdrawal of the proposed determination. It resulted in a federal appellate court
decision that invalidated the withdrawal, and found that the
proposed determination could be withdrawn “only if the discharge of materials
would be unlikely to have an unacceptable adverse effect” on the watershed.
Following that decision, the withdrawal of the proposed determination was vacated, and the
Clean Water Act review was resumed.
That review resulted in an extended period of public comment and
agency deliberations which culminated on January 30, 2023, when the EPA issued
a final determination finding
that “the discharges of dredged or fill material associated with developing a
mine evaluated in this final determination will have unacceptable adverse
effects on anadromous fishery areas in the Bristol Bay watershed,” and
prohibiting “the specification of and restricting the use for specification of
certain waters in the Bristol Bay watershed as disposal sites for discharges of
certain dredged or fill material associated with development of a mine at the
Pebble deposit.”
While that was good news for the salmon, for the fishermen, and
for the other traditional users of the Bristol Bay watershed, it did not end
the controversy over the Pebble Mine. In March 2024, to no one’s surprise,
Northern Dynasty initiated yet another lawsuit,
this one alleging that the EPA’s final determination was “arbitrary and
capricious” because of its failure to adequately consider the economic
consequences of its decision, as well as its supposed gross overestimation of
the extent of the mine discharges.
More surprising, and probably far more bizarre, was Alaska’s
decision to sue the United States in
the Court of Claims, asking for more than $700 billion in damages. In its
complaint, Alaska alleged that “mining is the only economically
productive activity that can occur on these [Pebble deposit] lands,” and
claimed that the EPA’s final determination, which prevented development of the
Pebble Mine, was therefore a “taking” pursuant to the Fifth Amendment to
the United States Constitution, which entitled Alaska to “just compensation”
for its loss of mining revenues.
The Bristol Bay Protection Act, if signed into law, would put an
end to such litigation and provide enduring protection for the Bristol Bay
watershed, by incorporating the EPA’s final determination, which currently
takes the form of a regulation, into a federal statute. It does so through language which
simply states, “The final determination of the Environmental Protection Agency,
published on February 3, 2023, and titled “Final Determination To Prohibit the
Specification of and Restrict the Use for Specification of Certain Waters
Within Defined Areas as Disposal Sites, Pebble Deposit Area, Southwest
Alaska”…shall have the force and effect of law.”
Once so enshrined in federal law, the final determination would
be immune from legal challenge, except on Constitutional grounds.
In introducing the Bristol Bay Protection Act, Rep. Peltola stated,
“I came to DC to stand up for fish—to make fishing and the livelihoods of our
fishing communities the national issue it deserves to be. Whole communities
depend on Bristol Bay’s watershed for subsistence and as a deeply interwoven
part of their social and cultural practices. In introducing this bill, we’re
moving to protect our fisheries and streams, water supply, and the deep value
these waters have had to Alaska Natives who have relied on them for thousands
of years.”
Passage of the bill would provide lasting protection for such
natural resources and the communities, cultures and fisheries which have long
depended upon them, and finally end the decades-long threat posed by the Pebble
Mine.
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This
essay first appeared in “From the Waterfront,” the blog of the Marine Fish
Conservation Network, which can be found at http://conservefish.org/blog/
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