Alaska leaders petition the U.S. Supreme Court for reversal of EPA ban on Pebble Mine

The Dunleavy administration on Wednesday asked the U.S. Supreme Court to overturn the Environmental Protection Agency’s decision to block the controversial Pebble copper and gold mine.

The administration filed what is known as a “bill of complaint” with the nation’s highest court that argues that the federal agency’s use of the Clean Water Act to preclude Pebble development violates the state’s right to use its natural resources. The document details the state’s complaint and also seeks permission to argue the case in full to the nation’s highest court.

Appealing directly to the Supreme Court while bypassing all lower courts is an unusual step, but it is warranted “given the extraordinary decision being challenged,” Alaska Attorney General Treg Taylor said in a statement released by the state Department of Law.

“If EPA can rely on undefined terms and subjective standards instead of sound science to bypass the regular State and federal permitting processes here, it can do it anywhere, from large mining projects such as this, down to a family building their dream home. It’s an indefensible and unprecedented power grab that the U.S. Supreme Court should find unlawful,” Taylor said in the statement.

Gov. Mike Dunleavy, in the statement, echoed arguments made in the brief assert the EPA action effectively confiscates state property and clashes with the Alaska constitution’s mandates.

“Our constitution is clear: Alaska is responsible for utilizing, developing, and conserving all of the State’s natural resources for the maximum benefit of its people,” Dunleavy said in the statement. “Bureaucrats in Washington D.C. are exercising unbridled and unlawful power to choke off any further discussion on this important decision affecting so many Alaskans.”

The EPA on Jan. 30 announced its decision to invoke a little-used provision of the Clean Water Act to prohibit development of the Pebble Mine or any similar metals mine in the area. That announcement capped a process that ran for over a decade, starting with requests made in 2010 by Native organizations for the federal agency to use the Clean Water Act to prevent permitting of the mine. The law’s Section 404(c) authorizes the EPA to prohibit a project that would cause dredge or fill having an “unacceptable adverse impact” on municipal water supplies, fisheries, wildlife or recreational areas.

During the Obama administration, the EPA put together a Bristol Bay watershed assessment that was completed in 2014. Through the regulatory process, the Obama administration’s EPA proposed a Section 404(c) prohibition on Pebble or a similar mine in the watershed, citing what it concluded would be irreparable losses to salmon habitat important to both people and wildlife. That process was delayed by litigation and suspended by the succeeding Trump administration before being revived by the Biden administration.

The 91-page brief filed by the state on Wednesday describes the EPA decision as depriving the state of economic value – specifically, the mining potential of the land in question. The Pebble deposit contains copper, gold and other minerals.

“Due to its remoteness and lack of infrastructure and development, the only economically productive use for the land is mining. But by making it impossible for the State to utilize the land’s mineral resources, the EPA has effectively confiscated the land and created a de facto national park contrary to federal prohibition,” the document says.

But to mine opponents, the territory eyed for Pebble is valuable for its role supporting the Bristol Bay ecosystem, home to the world’s biggest sockeye salmon runs and the base for important commercial and subsistence fish harvests.

The proposal to build the huge open-pit mine has stirred opposition for many years from fishing, environmental and Native organizations, including the regional Bristol Bay Native Corp. Polling conducted by the Bristol Bay Native Corp., has shown consistent statewide opposition to the mine since 2012 and even stronger opposition within the region.

On Wednesday, representatives of the groups that have fought against the mine – and celebrated the EPA’s decision earlier this year — said they were surprised and disappointed by the state’s appeal to the Supreme Court.

“Today’s legal filing from the Governor is a slap in the face to Bristol Bay. Contrary to his false narrative, it was our Tribes, Alaska’s First People, who requested this action because politicians like Governor Dunleavy slammed the door in our face and put the interests of a Canadian Mining company above our rural villages and our world class salmon fishery,” Alannah Hurley, executive director of the United Tribes of Bristol Bay, said in a statement.

Hurley said the EPA action “is grounded in sound science” and predicted that the Dunleavy administration’s attempt will fail. “The Governor is once again ignoring the will of Alaskans and legal process by filing an action directly in the Supreme Court. Nevertheless, our Tribes will continue to defend EPA’s Clean Water Act protections for our region. We will use every tool at our disposal to protect our waters, our salmon, and our people,” she said.

Nelli Williams, Alaska director of Trout Unlimited, also released a statement.

“The Governor is ignoring Alaskans and science with this lawsuit. And even more appalling, he is using public funds to prop up out-of-state mining executives at the expense of Alaska’s salmon and all the people who rely on them. It’s anti-Alaskan,” she said.

Carole Holley, Alaska regional managing attorney for Earthjustice, said that the effort “goes against the wishes of most Alaskans.” She added: “It’s a highly unusual legal move, and also a highly unpopular one.”

But Northern Dynasty Minerals Ltd., the Vancouver-based company that owns the Pebble Limited Partnership, applauded the administration’s move and pledged to assist in the legal effort.

“The Bill of Complaint filed by Alaska is a welcome development in the long Pebble saga,” Ron Thiessen, the company’s president and chief executive officer, said in a statement. “Northern Dynasty strongly, and I mean very strongly, supports all of the arguments set forth by the State and we congratulate the State for bringing these claims directly to the U.S. Supreme Court. Northern Dynasty intends to prepare and file with the Supreme Court appropriate briefs to support the State’s case.”

The state action comes as the Bristol Bay commercial salmon season is nearing completion. As of Wednesday, 38.6 million salmon, almost all which is sockeye, had been harvested by commercial fishers this summer, according to preliminary figures from the Alaska Department of Fish and Game.

This year’s harvest so far is well short of the more than 60 million salmon harvested last year from a record Bristol Bay sockeye run of 79 million fish, but it is above the recent 20-year average, according to Department of Fish and Game data. Bristol Bay sockeye runs have been particularly strong in recent years, according to the department.

The Supreme Court will not be in session until October.