Federal Judge H. Russel Holland heard oral arguments Thursday in one of the cases Pebble Limited Partnership (PLP) has brought against the U.S. Environmental Protection Agency. In this case, PLP asserts that EPA violated the Federal Advisory Committee Act (FACA) during the process of developing the 2014 Bristol Bay Watershed Assessment, a document the EPA took into account when deciding to initiate the rarely used 404(c) process to consider protections for a defined area in Bristol Bay near the Pebble deposit.
EPA was in the midst of the 404(c) process last fall when Judge Holland approved a preliminary injunction that forbade further work on it until a decision could be made in the FACA case.
EPA has asked the court to dismiss the case.
During closing arguments, Brad Rosenberg of the U.S. Department of Justice argued, “Let’s just assume for a moment that EPA had perhaps already made up its mind in 2010 or 2008 that it wanted to impose some form of restrictions on the Pebble mine site … that’s not a FACA violation. Agencies sometimes have opinions, just as this court may have an opinion on how it’s going to rule on the government’s motion to dismiss before I get up here and argue that it should do so.”
Judge Holland nodded. After hearing arguments from both sides, he said that he would make a decision as quickly as he could, but “there are a lot of issues to grapple with here.”
Yup'ik Elder Bobby Andrew, who had spoken out for years against the development of the proposed Pebble mine, died May 12 of natural causes at his cabin at Lake Alegnagik. The 72-year-old had frequently travelled far beyond his native Bristol Bay to speak out about the impact he believed the mine would have on the fishery and the people of the region. He spoke to legislators in Washington D.C. and to Anglo American and Rio Tinto mining executives in London (companies that subsequently pulled away from the project). He testified to the U.S. Environmental Protection Agency in support of its Bristol Bay Watershed Assessment, and pushed for the agency to complete Section 404(c) proceedings that would limit development at the Pebble deposit.
Locally, he had served on the Alegnagik Tribal Council, the Nushagak Mulchatna Watershed Council, and the Nushagak-Mulchatna Wood-Tikchik Land Trust, and as spokesperson for Nunamta Aulukestai (Caretakers of Our Land), an association of eight Alaska Native villages in Bristol Bay. Andrew was a central character in the 2013 documentary film, "We Can't Eat Gold," in which he states, "We can't eat gold, but we can eat salmon."
Photo credit: Giovanna Marcantonio. Bobby Andrew on the set of "We Can't Eat Gold."
Image credit: EPA public document. Bobby Andrew testified to the EPA numerous times in support of protections for Bristol Bay.
Links to some of Bobby Andrew's work speaking out about Pebble mine:
Researchers from the University of Northern British Columbia (UNBC) were some of the first on the scene after an August 4, 2014 tailings pond breach released an estimated 2.6 billion gallons of wastewater and 1.3 billion cubic yards of tailings into the watershed in the Polley Lake/Hazeltine Creek/Quesnel Lake area of British Columbia.
The scientists were already well familiar with the area, having collaborated on other projects in Quesnel Lake. They began sampling right away and continued to gather data for two months. A report on their findings, co-authored by five researchers and their collaborators, has been published in the online journal Geophysical Research Letters.
- Both the level of the lake and the temperature of the lake bottom have increased. The level increased by 7.7 cm, and the temperature increased by 1 to 2.5 degrees C.
- Observable impacts of a sediment plume may be reduced, but tailings and scour materials continue to be transported throughout Quesnel Lake.
- Ultra-fine sediment is still suspended in the lake (enough to cover a surface area of around 642 square miles).
- Each spring this lake experiences isothermic conditions during which the temperature is the same from top to bottom of the lake. These conditions allow for ready mixing of materials, potentially bringing settled tailings and scour material back into the water column.
- Waste materials currently present in the lake could affect the metal content of aquatic food webs and are a potential hazard to the "growth, survival, and behavior of important fish species."
In their report, researchers wrote that they expect spill-related metals in Quesnel Lake to accumulate in salmon and trout over time, and said further study is warranted to measure and evaluate how the contaminants move and enter food webs, as well as "long-term trends in metals of concern in resident and migratory fish species."
While immediate impacts to fish were not observed in the days following the spill, it is unclear how they could be affected over time. The UNBC report notes that juvenile salmon "likely entered the turbid bottom waters and were exposed to materials associated with the mine spill for substantial periods each day." In addition, the "progeny of the 2013 nondominant cycle line were rearing within Quesnel Lake during and following the breach event."
Federal Judge weighs postponing Pebble mine hearing (Alaska Dispatch News, May 5, 2015)
Federal Judge H. Russel Holland, who is presiding over ongoing litigation brought by the Pebble Limited Partnership (PLP) against the U.S. Environmental Protection Agency (EPA), is considering delaying further action on one of the lawsuits against the EPA, pending the outcome of an internal EPA investigation. Judge Holland learned about the internal investigation, which has been ongoing since May 2014, when he read a Pebble mine-related story in the Alaska Dispatch News over the weekend.
Pebble mine backers aren't ready to give up the gold (Alaska Dispatch News, May 3, 2015)
Erica Martinson provides an overview of the "battle over Pebble mine," addressing upcoming litigation, EPA's internal investigation into whether the Watershed Assessment process was conducted properly, and a separate, third-party investigation initiated by PLP.
EPA moves to sink Alaska Pebble mine FOIA suit (Law360 online, April 20, 2015)
The EPA has asked a federal judge to throw out one of the lawsuits PLP brought against the agency regarding a January 2014 Freedom of Information Act (FOIA) request. PLP contends that the EPA has withheld some documents related to the 404(c) process it launched last year in order to seek protections for the Bristol Bay watershed in the area of the Pebble deposit. The EPA contends that it has properly processed the request.
Pebble selling off surplus equipment (KDLG radio, April 17, 2015)
KDLG radio in Dillingham reports on a flyer posted in town that advertises the sale of various pieces of equipment PLP had used in previous exploration work. According to a PLP spokesperson, the surplus equipment was sitting idle and depreciating and it made "sense to sell some of it off."
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.