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Legal battle between Pebble developer, EPA heats up

  • Author: Alex DeMarban
  • Updated: September 28, 2016
  • Published September 25, 2014

The legal showdown between the Environmental Protection Agency and the group behind the giant Pebble mining prospect near Bristol Bay is coming to a head, with the first oral arguments in one case set for Friday morning in Anchorage and the recent filing of a second lawsuit that claims the agency illegally colluded with mine foes.

Both cases, under the purview of Alaska federal District Court Judge H. Russel Holland, were filed by Pebble Partnership, owned by Northern Dynasty Minerals.

The fight centers on Pebble's argument that the EPA has taken unprecedented steps to illegally and preemptively stop the proposed copper and gold mine under a section of the Clean Water Act related to dredging and filling activities.

The agency says it has the authority to restrict fill activities and has proposed restrictions on the watershed draining the Pebble deposit after determining a copper mine could adversely affect the fishery. A final determination is expected later.

Pebble argues such an effort should occur only after it has submitted a development plan -- something it has not yet done -- and after the U.S. Army Corps has issued a permit regarding dredging and filling activities.

The oral arguments Friday morning involve Pebble's lawsuit filed in May that includes the state as an intervening plaintiff along with Alaska Peninsula Corp., a village corporation in the region. On Friday, Holland will hear arguments on the EPA's motion to dismiss the case.

Meanwhile, Pebble's more recent lawsuit lays out a broad conspiracy argument against the agency, claiming it schemed to stop the mine by creating a process to support "predetermined conclusions" that a mine would damage the Bristol Bay watershed.

One result was the Bristol Bay watershed assessment released early this year, with its "patently anti-mining bias," according to the lawsuit.

The lawsuit claims the EPA "furtively and unlawfully" created federal advisory committees composed of anti-Pebble members who helped the agency create its "scheme" to halt the mine. One of those committees consisted of mine opponents associated with conservation groups such as Trout Unlimited and the Nature Conservancy and mine foes such as wealthy Alaska financier Bob Gillam.

The coalition "secretly" advised the EPA on how to develop its strategy, including how the "agency could best leverage the Alaska Native tribes, and how to formulate EPA's messaging in a way that would minimize anti-federal government backlash among Alaskans."

The "back-room influence peddling" also extended to another advisory committee whose biased science supported EPA's preconceived views, the lawsuit claims.

Tim Bristol, the Alaska program manager for Trout Unlimited, scoffed at the lawsuit.

"It's a last-gasp, desperate attempt by a company that has seen public opinion and the science turn against their idea for a giant open-pit gold mine at the headwaters of Bristol Bay," said Bristol.

He said from what he's read, the lawsuit conveniently does not discuss the agency's numerous discussions with Pebble supporters. He also said the EPA has made no decision to stop the mine, though that's what the public wants.

"Just look at the amount of testimony in villages and Anchorage and elsewhere," he said. "It's clear people don't want the mine."

Some of Pebble's arguments are based on information obtained under the Freedom of Information Act. Pebble argues that documents showed the agency communicated extensively with mine foes, and held internal discussions about a preemptive veto long before tribes in the region asked the agency to assess the impact a large mine would have on the region.

On Wednesday, Holland issued an order in that case noting that the EPA had agreed not to issue a determination until at least Jan. 2.

Mike Heatwole, a spokesman with Pebble, said the organization was pleased with the order, which will give Pebble time to lay out its arguments in court.

"We are glad to have the opportunity to be fully heard and considered," he said, adding that the organization feels like its views have been dismissed by the EPA.

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