Suits Target Veto, but Pebble Mine Opposition Will Never End

Earlier this month, the Canadian owner of the destructive Pebble Mine – Northern Dynasty Minerals (“Pebble”) -- issued another press release, this one announcing that it had prevailed on a preliminary motion expanding the scope of its pending lawsuit against the Environmental Protection Agency’s (“EPA”) January 2023 veto of the project.  

Later that day I got an email from a reporter, long familiar with Pebble, asking if the motion was important and, if so, why. I explained that it was a procedural motion to add the Army Corps of Engineers (“Army Corps”) as a defendant – one of a number of pre-trial motions filed thus far to determine the scope and pace of the case.  Like so many of Northern Dynasty’s press releases over the years, this one, I suggested, may be intended primarily for investor outreach.

In disbelief, the reporter replied that “[s]urely no sophisticated, institutional investor is going near Pebble at this point. . . .  The whole thing seems like a monumental waste of time, effort, and money.  Time to move on . . . show’s over.” 

Considering Pebble’s long history of failure, it’s easy to appreciate this sentiment – abandonment by its mining partners, denial of a federal permit by the Trump Administration, issuance of a rare EPA veto by the Biden Administration, and widespread condemnation (including by over 80 percent of Bristol Bay’s residents and 100 percent of Alaska’s congressional delegation).  But as a matter of law, the show’s not actually over until the courts say it is.

Because federal administrative reviews for the Pebble Mine were not formally completed until January 2023 (by EPA) and April 2024 (by the Army Corps), Pebble now has a right to challenge those administrative decisions in court -- and it has chosen to do so. In fact, three lawsuits so far have been filed against EPA in federal district court in Alaska, by Pebble and others.

Here is a quick summary of the legal challenges filed to date:

• State of Alaska v. United States of America, et al., No. 157, Original (USSC 2023) -- On January 30, 2023, after over a dozen years of administrative review, EPA issued a Final Determination vetoing the Pebble Mine.  Six months later, in July 2023, seeking to short-circuit the traditional process of judicial review, the State of Alaska – supported two months later by Northern Dynasty -- requested leave to file a complaint in the United States Supreme Court (“USSC”), claiming original jurisdiction to challenge EPA’s decision.  On January 6, 2024, the USSC issued a one-line order rejecting Alaska’s lawsuit: “The motion for leave to file a bill of complaint is denied.” 
• Northern Dynasty Minerals v. United States Environmental Protection Agency, Case No. 3:24-cv-00059-SLG (D. Alaska) -- In March 2024, in federal district court in Alaska, Northern Dynasty filed a lawsuit against EPA seeking to overturn the agency’s veto. 
• State of Alaska v. United States Environmental Protection Agency, Case No. 3:24-cv-00084-SLG (D. Alaska) – In April 2024, in the same court, the State of Alaska filed its own lawsuit against EPA, seeking similar relief on virtually identical grounds. 
• Iliamna Natives Ltd. and Alaska Peninsula Corp. v. Unites States Environmental Protection Agency, Case No. 3:24-cv-00132-SLG (D. Alaska) -- In June 2024, two Alaska Native village corporations filed their own lawsuit in federal court in Alaska, also challenging EPA’s veto.

All three district court cases have been assigned to Chief U.S. District Judge Sharon Gleason, sitting in Anchorage, and all three cases will be decided based on the written record of administrative agency review. When Judge Gleason issues final judgments in any of them, those judgments can be appealed to the Ninth Circuit Court of Appeals and, potentially, to the USSC.

In the first two of the pending cases, motions to intervene in support of EPA -- by United Tribes of Bristol Bay, the Bristol Bay Native Corporation, Bristol Bay Native Association, Bristol Bay Economic Development Corporation, Bristol Bay Regional Seafood Development Association, United Fishermen of Bristol, and numerous conservation organizations (including NRDC) – were granted by Judge Gleason during the last two weeks. Similar motions are anticipated imminently in the third. 

Although the focus of all of the cases is EPA’s veto, Pebble sought and received leave from the court to expand its existing lawsuit against EPA, allowing the company – rather than filing a new case -- to include the Army Corps’ November 2020 permit denial, affirmed in April 2024 after denial of Pebble’s administrative appeal. This challenge, too, will be tried based on the administrative record, expanded to include the record of proceedings before the Army Corps.  

The timing and duration of what happens next are difficult to predict with certainty, but briefing of the merits in the district court will likely take several months -- and an additional period of two years can be expected for appeals. While protracted court proceedings are not unusual in complex cases, there is understandable public confusion and frustration in the continuing heartbeat of a toxic project like the Pebble Mine that has been successfully opposed for so long by so many.    

No one feels this frustration more acutely than the people of the region, compelled for decades to defend their communities and way of life against the Pebble Mine at great personal cost in time, resources, and anxiety about their future.  Northern Dynasty has no other assets and has never had the money or capacity actually to build the mine; indeed, its business plan has long been premised on winning a federal permit that will attract a partner that does – a search at odds with and defeated by the immutable opposition of the Tribes and their longtime supporters. 

But as long as the company’s management and lawyers continue to be generously paid for their services, Northern Dynasty seems determined to fight on.  According to its latest financial disclosures, Northern Dynasty anticipates a budget of $8,612,000 for the coming year to fund, among other corporate legal obligations, its challenges to EPA’s veto and the Corps’ permit denial. 

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Whatever the outcome of Pebble’s litigation against EPA, one thing is certain: 

The opposition to this reckless mining scheme is not going away.  For the people of Bristol Bay who have battled the Pebble Mine for most of their lives, there is no choice but to continue the fight -- to protect their families, their salmon and salmon-based culture, their livelihood and way of life.  In the Bristol Bay watershed, an essentially eternal supply of food is pitted against an essentially eternal supply of poison, at the heart of the greatest, most productive wild salmon fishery on Earth.  And the people who live there will never give up. 

We fully expect that EPA’s careful crafting of its rare veto will be affirmed by the courts.  We support, too, Alaska Representative Mary Peltola’s recently introduced Bristol Bay Protection Act, and we will work with Congress to provide the litigation-proof legislative protection that this natural gem deserves. But wherever these legal and political processes may lead, the battle for the soul of the Earth in Bristol Bay will never end until permanent protection against the Pebble Mine -- and any mine like it -- is secured.

While it’s still premature to say “move on . . . show’s over,” there should be no doubt that the Pebble Mine can and will ultimately be stopped. Because if we can’t definitively say no to an idea as senseless, destructive, and widely condemned as the Pebble Mine, then our hopes for the future of our planet may be only a mirage. The battle for Bristol Bay is one fight we can’t afford to lose.