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Environment

With new ruling in U.S. District Court, Pebble Mine case advances

  • Author:
  • Updated: September 28, 2016
  • Published June 4, 2015

A federal judge ruled Thursday to allow part of a case over the proposed Pebble mine project to move forward, laying the groundwork for a long legal fight over the Environmental Protection Agency's interaction with anti-mine activists.

The decision advances one of several cases involving Pebble Limited Partnership, which wants to develop a massive gold, copper and molybdenum mine worth hundreds of billions of dollars about 200 miles southwest of Anchorage in Alaska's most prolific salmon habitat.

Opponents of the mine solicited help from the EPA and argue that it could potentially devastate salmon fishing in the Bristol Bay watershed.

The case proceeding in U.S. District Court in Anchorage is over claims by Pebble that the agency formed "de facto" federal advisory committees to advise the agency on the mine. In doing so, Pebble argued, the EPA didn't solicit balanced viewpoints or follow requirements for public and transparent meetings.

But U.S. District Court Judge Russel Holland tossed three other claims by Pebble against the EPA, including the mine company's assertions that the EPA conspired with anti-mining groups.

Pebble CEO Tom Collier called Thursday's decision "a significant victory for Pebble."

The case is by no means over.

On Thursday, Holland ruled it "plausible" that the EPA improperly "utilized" input from anti-mine groups in drafting the Bristol Bay Watershed study, and shot down the agency's effort to get the full case dismissed.

Holland didn't find Pebble's other claims convincing. He sided with the EPA on charges that the agency "established" groups of anti-mine activists, scientists and an anti-mine group to assess the Bristol Bay watershed.

Now Pebble has to prove itself on the charges that remain.

"We are convinced the EPA has pursued a biased process against our project that then drove their actions toward a predetermined outcome. Our fight with the EPA has been about a fair and transparent process for objectively evaluating a development plan for our project once we have presented it via the permitting process," Collier said.

Groups who have been fighting the mine were disappointed with the ruling, but said they're confident EPA would come through the case unscathed.

"We are extremely disappointed and frankly angered that Pebble's delay tactics are working," said Kimberly Williams, executive director of Nunamta Aulukestai, a coalition of Native tribal organizations based in Dillingham.

"If further litigation is the price necessary to protect the Bristol Bay fishery and our traditional way of life, then it will be well worth it," said Robert Heyano, president of the United Tribes of Bristol Bay.

"The company's complaints about the federal advisory process -- a process Pebble itself participated in -- in no way changes the scientific fact that this mine, in this place, will devastate our fishery," Heyano said.

Now comes the "discovery" process in the case, where Pebble hopes to find its smoking gun. They want to interview federal employees and other witnesses and root through thousands of emails, which they hope will help Pebble "develop additional evidence regarding allegations that EPA allowed anti-mine activists inappropriate access and influence with respect to EPA actions against Pebble," Collier said.

The tribes and environmental groups fighting the project say they expect the case will eventually show the agency was transparent and fair in its efforts.

A spokesperson for the Justice Department, which represents the EPA in court, said only, "We are reviewing the district court's decision," and declined to comment further.

Meanwhile, the judge's injunction remains in place: The EPA cannot move forward on its efforts to block Pebble from ever getting necessary federal permits within the Bristol Bay watershed. Pebble has not yet applied for its federal "404" permit -- necessary under the Clean Water Act to dredge and fill protected waters.

But the company is hopeful it can stop the agency from a pre-emptive "veto" of the permit, and get the watershed assessment tossed -- sending the agency back to the drawing board and potentially putting the U.S. Army Corps of Engineers in the driver's seat instead of the EPA.

Thursday's ruling came in one of numerous federal and state court cases over the potential mine. Pebble is also pursuing other lines of inquiry to prove EPA "bias" against the project.

Last week a federal appeals court tossed one case against EPA, saying it wouldn't rule until the agency has taken a final action, and the Alaska Supreme Court ruled in favor of activists who argued that the state Department of Natural Resources didn't do its due diligence in issuing exploratory permits for the mine.

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