Rep. Peltola Steps Up for Bristol Bay

Bristol Bay brown bear, courtesy NWF

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.

Top photo: Bristol Bay brown bear, courtesy of NWF

About Charles Witek

Charles Witek is an attorney, salt water angler and award-winning blogger. Read his work at One Angler’s Voyage.

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