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Timing set in FACA case; 404(c) process delayed

In late November Federal Judge H. Russel Holland ordered a preliminary injunction to halt the U.S. Environmental Protection Agency's 404(c) proceedings related to the Pebble deposit in Bristol Bay until he rules on the merits of a lawsuit the Pebble Limited Partnership (PLP) brought against the agency. Afterward, EPA attorneys interpreted the ruling as allowing at least internal work on the process. However, last week Judge Holland clarified his instructions in a Case Status order, writing that, "Defendants may not engage in any activities related to the 404(c) process."

This order stands until after the court has ruled on the merits of PLP’s case that alleges EPA violated the Federal Advisory Committee Act (FACA) during the process of developing the Bristol Bay Watershed Assessment, a document which informed its decision to pursue 404(c) protections at the Pebble deposit area in Bristol Bay.

The same Case Status set out the timeline for proceeding with the FACA case, as follows:

By Dec. 19, 2014 - PLP to submit an amended complaint (the Judge requested a much shorter version)

By Jan., 2015 - EPA to file a motion to dismiss (EPA already filed a motion to dismiss, but needs to revise it based on the amended complaint)

By Feb. 17, 2015 - PLP to file its opposition to the motion to dismiss

By March 6, 2015 - EPA will reply in support of the motion to dismiss

TBA - a hearing on the motion to dismiss will be scheduled after the court has reviewed the motion.

EPA staff had been in the process of reviewing more than 671,000 public comments submitted on its Proposed Determination, with next steps--either a Recommended Determination or withdrawal of the Proposed Determination--possible by Feb. 4, 2015. The judge’s ruling delays this work until late spring or early summer.

Read more

Read about the Preliminary Injunction

More about the Federal Advisory Committee Act (FACA)

More about the 404(c) process

Court issues injunction delaying EPA process on Pebble

U.S. District Court Judge H. Russel Holland has granted a preliminary injunction that temporarily stops the U.S. Environmental Protection Agency from  proceeding with a 404(c) process that could result in restrictions at the Pebble deposit.

The preliminary injunction relates to a civil suit the Pebble Limited Partnership filed in early September alleging EPA violated both the Federal
Advisory Committee Act (FACA) and the Administrative Procedure Act (APA) when determining whether it would initiate Section 404(c) of the Clean Water Act to impose restrictions at the Pebble site.


Mount Polley: officials reassure Alaska, mine lays off workers, investigators ask for public input

In an effort to restore Alaskans' confidence in Canadian mining, British Columbia's Energy Minister Bill Bennett addressed the Alaska Miners Association's annual meeting, held in early November.

Bennett gave an update on the Canadian government's response to the Aug. 4 Mount Polley breach, where the tailings pond at the mine failed, ultimately discharging an estimated 2.6 billion gallons of waste water and 1.3 billion cubic yards of tailings into the watershed in the Polley Lake/Hazeltine Creek area, a tributary of the Fraser River.

The AMA meeting was just one stop on his mission to try to regain confidence in Canadian mining projects, some of which are located upstream of fish-bearing waters in Southeast Alaska.

The spill heightened Alaskans' awareness of the risks posed by the proposed Pebble mine. Officials with Pebble Limited Partnership often extolled the Canadian mines along the Fraser River as successful examples of the ability for mining and fishing to co-exist.


Bristol Bay Forever: after long effort, initiative may still face legal challenges

Unofficial results show that 65 percent of voters approved Ballot Measure 4, also known as the Bristol Bay Forever initiative, in last Tuesday’s general election. This outcome could be interpreted as a public vote against Pebble, but the initiative likely will be up against legal challenges.

Bristol Bay Forever, as described by its sponsors, adds another layer of approvals to the typical permitting process for any large-scale metallic sulfide mine, like Pebble, that would be developed in the Bristol Bay Fisheries Reserve. It does not affect other types of development in Bristol Bay or large-scale mines in other areas of Alaska.

Proponents say the additional step is needed to give people their only chance to say “Yea” or “Nay” to a large-scale mine project in this unique reserve. Critics, including the Alaska Miners Association  (AMA), have said it’s not fair to give legislators the power to decide on a project after developers have spent years and a lot of money getting through the established permitting process.

In fact, AMA and others challenged “Bristol Bay Forever” even before it landed on the ballot, saying that it was unconstitutional. The courts did not agree. Last summer the Alaska Supreme Court ruled that the measure didn’t violate any provisions in the state constitution, and it was added to November’s ballot. In the lead up to the election, AMA Executive Director Deantha Crockett vowed to take the issue back to the courts if the measure passed.

There was very little campaigning against the initiative. Pebble Limited Partnership (PLP) CEO Tom Collier explained in September that the company did not have funds to do so. He told a Resource Development Council gathering in September that, “it’s a stupid way to run the government – to make any decision. We’re confident it will be thrown out in courts if it passes.”

In any case, members of the public will have to wait years to see if Bristol Bay Forever is used as intended. The initiative’s call for legislative approval of a project comes into play only after the permitting process is complete. That process, which can take four or more years, begins with the Pebble Partnership finalizing its mining plan and submitting applications. PLP says the documents are mostly ready, but will wait for a new partner to invest before moving forward. (Major investor Anglo-American withdrew from the project a year ago, leaving Northern Dynasty Minerals as the sole owner.)

Crockett and other mining advocates say an initiative like Bristol Bay Forever can chill the atmosphere for attracting investors to Alaska projects like Pebble. In this respect – even though the Bristol Bay Forever initiative as written is intended to add final decision-making layer to the permitting process – it may effectively deter development of Pebble before that process even begins.

Read more:

Bristol Bay Forever would give lawmakers say on mine permitting (KTUU, September 7, 2014)

Text of Bristol Bay Forever initiative


Resource Development Council breakfast: EPA vs. Pebble talk, Tom Collier, Pebble Limited Partnership CEO

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About Pebble Watch

Pebble Watch is an impartial, educational and fact-based initiative of the BBNC Land Department to disseminate information regarding the proposed Pebble Mine project to BBNC shareholders and interested parties. 

Produced by
the BBNC Land Department

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