The fourth decade—the fight for salmon and wildlife

By Madison Grosvenor

Trustees for Alaska started its fourth decade in the new millennia looking at a snowball of industrial proposals coming down the slope. Our effort to keep oil and gas drilling from spilling toxins and spewing pollutants continued even as we took on work to prevent mining projects from killing salmon and other animals and livelihoods with it.

In the 2000s, Northern Dynasty began doing exploration work for its proposed Pebble mine, and PacRim Coal LP ramped up efforts for a gold mine on the Chuitna River in Cook Inlet smack dab in the midst of thriving salmon runs.

Meanwhile, the wild, wild west of shooting huge numbers of animals continued as the state jacked up “intensive management” efforts by going after predator animals like bears and wolves. From excessive bag limits to questionable wolf bounties, the state stopped at nothing to eradicate these animals on the groundless claim that doing so would boost moose and caribou populations.

Once again, the fourth decade brought with it major concerns about how industry operates in Alaska and on issues that continue to be on the forefront of minds and hearts today.

Pebble’s hands get dirtier and dirtier

Although industry interest in the Pebble deposit of gold and minerals emerged in the 1980s, it wasn’t until a junior Canadian company, Northern Dynasty, entered the picture that the legal fight began.

In the early 2000s, it became clear that Northern Dynasty was willing to cut corners during its exploration and use of land at the mine site. The Pebble Partnership—the Alaska face of Northern Dynasty– started drilling exploration holes around Bristol Bay to push for what would have been North America’s largest open pit gold mine (nearly the size of Manhattan) and to open up 3.6 million acres of Bristol Bay to hard rock mining.

The proposed location of the Pebble mine sits between the Lake Clark and Katmai national parks on the Alaska Peninsula in the heart of the Bristol Bay watershed, home of the largest salmon fisheries in the world.

Pebble moved rigs around, drilled geologic boreholes, scouted potential dam sites, and flew thousands of helicopter trips with impacts on land, water, the Mulchatna caribou herd, and subsistence users who had to spend an exorbitant amount of money on gas for hunting because Pebble’s presence forced caribou to flee the area. Several Alaska Native villages quickly adopted resolutions opposing the mine.

Northern Dynasty announced in 2006 its plans to add an underground mine to its proposed complex, seeking permission from the state to drain two important salmon spawning streams. The request revealed how Northern Dynasty planned on building the world’s largest dam out of rocks and dirt to contain a massive lake of contaminated mine waste and water.

As Northern Dynasty plotted its next steps, so did Trustees, along with its clients and partners. They vigilantly, rigorously, and strategically figured out how to stop this catastrophic mine plan from devastating rivers and streams, salmon runs, and the livelihoods and ways of life of communities in the region.

Taking Pebble to court

Trustees for Alaska represented several Bristol Bay communities and fishing interests when it filed a friend-of-the-court brief in Washington, D.C. in 2009 calling on the U.S. Supreme Court to affirm the previous year’s decision by the Ninth Circuit U.S. Court of Appeals in the Kensington Mine case.

In that case, the Ninth Circuit ruled that the U.S. Army Corps of Engineers had violated the Clean Water Act when it issued a permit to the Kensington mine in Southeast Alaska to discharge chemical-laden wastewater directly into nearby Lower Slate Lake, despite knowing it would kill all fish and virtually everything else in the 23-acre body of water.

The court held that dumping toxic mine wastes into U.S. waters is under the jurisdiction of the U.S. Environmental Protection Agency (EPA), which prohibits such discharges. Coeur Alaska, the Kensington operator, appealed the decision to the Supreme Court. Trustees’ friend-of-the-court brief in support of the Court’s decision was filed in connection with that appeal.

The Army Corps asserted that when solids are mixed into the waste stream, the poisonous brew should be relabeled as benign “fill-material.”

“It was really an attempt to ‘rebrand’ the toxic mining discharges as ‘fill’,” said Vicki Clark, current executive director of Trustees for Alaska who worked on Pebble back then.

Trustees’ brief pointed out that, if the Supreme Court overturned the Ninth Circuit’s Kensington decision, that would open the way for operators of the vastly larger Pebble mine proposal to dump wastes into streams and lakes of the Bristol Bay .

Unfortunately, that the Corps, rather than EPA, had the authority to issue permits relating to the disposal of mining waste slurry, and that the Corps’ decision allowing Kensington to dump its toxic slurry in the lake was lawful.  At the same time, however,  the Court acknowledged that EPA has veto power over the Army Corps’ fill permits where the discharges would have an “unacceptable adverse effect” on fish or water resources. EPA did not exercise that veto power at the time, but the Supreme Court’s recognition of its authority to do so may have helped give the agency the confidence to do so decades later with respect to the Pebble mine.

A constitutional case

That same year, Trustees filed a landmark civil suit in Anchorage Superior Court asserting that the Alaska Department of Natural Resources, or Alaska’s DNR, repeatedly violated the Alaska Constitution when it granted permits for Pebble mine exploration. The lawsuit asserted that the agency failed to consider the public’s interest in sustaining the region’s rich salmon, wildlife, and subsistence resources, all necessarily impacted by mining exploration.

Trustees filed the lawsuit on behalf of Nunamta Aulukestai (“caretakers of our land” in Yup’ik), as well as former Alaska First Lady Bella Hammond, Constitutional Convention Delegate Victor Fischer, Naknek set-netter Violet Wilson, and Nondalton resident and subsistence hunter Rick Delkittie, Jr.

“DNR has neglected its legal and moral obligation to protect Bristol Bay’s subsistence resources,” said Bobby Andrew, spokesman for Nunamta Aulukestai, in a 2009 newsletter. “The current exploration is having a serious impact on water and wildlife, yet the agency continues to rubber stamp permits and ignore the public interest.”

The judge ordered a trial on five of the six claims.

“It was very contentious,” said Vicki of the two-week trial that followed two years of investigating and litigating the permits.

In a disappointing ruling in 2011, the judge determined that the Alaska Constitution does not obligate the State to provide public notice or issue a best interest finding before permitting exploration and temporary water use activities. The judge also concluded that wildlife in the area had not been affected, despite testimonies from local subsistence and sport hunters about how helicopter activity had driven caribou away. The Court also found that fuel spills in the area had not caused significant environmental impact or harm.

Disappointing to say the least.

A million bucks, yikes!

Trustees appealed that decision to the Alaska Supreme Court while also facing another court battle.

As Trustees closed out its fourth decade, it grappled with litigation brought by Pebble and the State claiming that they were owed nearly $1 million of fees and costs associated with the constitutional case and that Trustees and its clients had to disclose where funding for that lawsuit came from. Of course, this gave everyone involved a fright.

The law was on our side, though. Alaska law protects constitutional claimants from having to pay the other side’s attorneys’ fees so long as the case is not frivolous, and they do not have an economic incentive in the case.

“The State and the Pebble Limited Partnership went after us to see who was funding the litigation.” said Vicki Clark. “They had this idea in their heads that the fishing industry was behind it and had economic interest in the case.”

It wasn’t until Trustees’ fifth decade that rulings on these cases came out. (Cross your fingers and stay tuned for next month’s 50^th piece on the fifth decade!) The good news at the time was that these lawsuits brought increased awareness to the environmental threats posed by the Pebble mine proposal and mobilized support from communities, environmental organizations, and political leaders.

Lumps of coal

As the Pebble fight roared, Trustees took on another mining challenge concerning the Chuitna coal mine proposal.

PacRim Coal LP wanted to build the mine about 45 miles southwest of Anchorage, Alaska, in an area known by industry as the Beluga Coal Fields near the Chuitna River and the communities of Tyonek and Beluga in upper Cook Inlet.

Like the proposed Pebble mine, Chuitna posed threats to salmon. Reports concluded that critical salmon fisheries along the Chuitna River would suffer severe long-term damage and never fully recover, and that restoration of the fragile and valuable wetlands and streams that feed the salmon-rich Chuitna River would be virtually impossible.

What’s more, the proposed project’s dock and 2-mile trestle into Cook Inlet would threaten beluga whales and salmon migrating up the west coast of Cook Inlet.

Worse yet, since coal combustion produces the most carbon emissions per unit of energy produced, the Chuitna proposal would contribute to climate change and its impacts on Alaska.

A citizens’ petition to stop the mine

Local residents were deeply concerned over the potential loss of necessary clean water and healthy salmon, so Trustees responded in 2007 with a first-of-its-kind petition. Presented on behalf of conservation groups and local citizens, the petition requested that Alaska’s DNR designate all lands within the Chuitna River watershed unsuitable for surface coal mining.

Under the Alaska Surface Mining Control and Reclamation Act, DNR has the responsibility to designate an area unsuitable for coal mining if the land cannot be restored to pre-mining conditions.

In 2008, on behalf of the Chuitna Citizens NO-COALition, a local citizens group, Trustees for Alaska went to the Alaska Superior Court to challenge then-DNR Commissioner Tom Irwin’s refusal to consider the merits of the group’s petition. DNR had claimed that the area proposed for the Chuitna project was exempt from the “unsuitable for coal mining” designation.

“We should not have to be in court,” said Becca Bernard, Trustees’ attorney at the time. “Instead, we should be in a hearing in front of DNR talking about the merits of our petition and the infeasibility of restoring this vital and complex fish stream system if coal mining is permitted to go forward.

The vast majority of residents of nearby Beluga and Tyonek opposed the coal mine because of the impacts it would have on subsistence, commercial fishing, and recreational fishing.

“It will destroy our way of life” said Judy Heilman, spokesperson for the Chuitna Citizens NO-COALition in a 2008 Trustees .

Groups continued to seek the designation and filed another petition in 2010. The State held two hearings in Kenai and Tyonek the following year with a decision expected by April.

Alaska’s DNR missed the deadline.

In response, on September 1, 2011, Trustees gave 60 days’ notice of intent to sue the DNR for its failure to decide the pending Unsuitable Lands Petition. Despite public outcry, the State continued to delay and miss mandated deadlines.

Finally, Trustees notified DNR that its clients would seek a court order if the agency did not reach a decision by October 31. A week before that due date, DNR issued a 109-page decision rejecting the 2010 petition.

Alaska agency continues giving Alaskans the silent treatment

Trustees came back swinging in 2013 by filing for instream flow rights on Middle Creek to protect the Chinook and Coho salmon runs in that creek within the Chuitna River watershed.

Although DNR accepted these applications, the agency took no action on them. It instead approved temporary water use permits for PacRim Coal, allowing the company to extract up to 305,000 gallons of water from the same creek, without considering the coalition’s pending request to safeguard the waterway.

Chuitna Citizens appealed that decision, arguing that DNR had to consider the water rights they had requested for fish habitat before giving water to PacRim. The DNR commissioner dismissed those claims, but the Alaska Superior Court overturned the DNR decision, ruling that DNR violated its own rules by denying Alaskans their right to keep water in streams to protect wild salmon runs.

The water rights challenge didn’t end there.

Trustees sued to force DNR to process water rights applications that were filed in 2009, and the court ruled that DNR had allowed those applications to languish for four years and “that DNR has unreasonably withheld agency action on Chuitna’s applications.” The court also held that DNR violated Chuitna Citizens Coalition’s due process rights, a long-awaited victory.

This win didn’t end the threat but held DNR accountable and stymied the project while Alaskans continued to rally to protect salmon from the mine proposal.

Protecting belugas before it’s too late

Trustees has always had the backs of Cook Inlet belugas.

Belugas have long been hit hard by the effects of mining, oil and gas, and coastal development in Alaska, so securing their spot on the endangered species list meant ensuring attention to their health. On behalf of its clients, Trustees submitted a petition in 2006 to the National Marine Fisheries Service urging it to list the Cook Inlet beluga population as endangered, and the agency did so.

Industry folks were not pleased with this listing decision because it meant federal agencies had to evaluate and avoid activities that jeopardize the belugas’ continued existence, including the areas surrounding the Chuitna proposal.

The State of Alaska jeopardized the long path towards recovery for the imperiled beluga population by challenging its listing as endangered. Despite clear scientific evidence indicating that the Cook Inlet beluga would likely to go extinct if no action were taken, the State presented a weak case that was promptly dismissed by the U.S. District Court.

This was a momentous victory for beluga advocates, our clients, and our legal team. The Cook Inlet beluga population remains protected under the Endangered Species Act.

The state calls wolf – a decade of predator control

The State of Alaska has a long history of encouraging the killing of predator animals like wolves and bears under the guise of wildlife management. The Alaska Legislature paved the way for an increase in intensive predator control programs back in the 1990s after giving the Alaska Board of Game regulatory authority over the hunting and trapping of game animals.

The sponsors of these amendments perceived moose and caribou populations as a large crop that could be harvested for human consumption. They saw wolves and bears as competing for those animals and took the unsubstantiated position that killing them would mean more moose and caribou for hunters.

The Board initially struggled with implementing the amendments in a rational way, but Governor Frank Murkowski, who took office in 2003, made changes that drastically altered its membership to heavily include people who supported aggressive predator control programs that including huge bag limits and allowed people to shoot wolves out of airplanes. One goal included killing 80 percent of wolves on State land.

“It is incredibly apparent that the Board process has become so highly politicized that structural changes are needed,” said Mike Frank, senior staff attorney with Trustees at the time. “Thus, the volatile issue of predator control will continue to afflict game management until the Legislature decides to enact reforms to the underlying statutes.”

Bounties for forelegs

The State’s institutional effort to kill wolves and bears included a $150 bounty for each left foreleg of wolves killed through aerial hunting.

Then-Governor Sarah Palin, along with the Alaska Department of Fish and Game called it a “State Incentive Program” that used public money to meet their yearly goal of killing 300 to 600 wolves.

To avoid the fact that the Legislature had repealed all statutory authority to grant bounties in 1984, they claimed that the Department could use the collected forelegs to draw scientific conclusions about the wolf population.

Trustees for Alaska went to court in 2006 to challenge the program, and later filed a motion in the case seeking a temporary restraining order to stop this practice.

The Court halted the State’s payment of bounties for wolves but found in favor of the State on the issue of sustained yield, a decision that was appealed. (“Sustained yield” is a term that refers to the management of fish, wildlife, and other natural resources at a rate that ensures their long-term availability without depleting the resource, as mandated by the Alaska Constitution.)

Trustees filed a brief in the Alaska Supreme Court again in 2009 challenging the Palin administration’s predator control programs and claiming that they violated the Alaska Constitution.

“The Board’s predator reduction programs represent the antithesis of science-based wildlife and habitat management principles that should be followed,” remarked Mike Frank in a 2009 Trustees’ newsletter.

He further pointed out how these programs opened up nearly all state lands to non-resident and commercially guided sport hunting of moose and caribou, only to blame wolves and bears rather than trophy and sport hunters for what the State claimed were low populations of moose and caribou.

Unfortunately, the Court found that the Board of Game’s management decisions were within the bounds of the law in 2010, maintaining the legality of similar predator control plans on state lands to this day.

The infinite horizon

Even now, a decade later, Trustees keeps working on many of these issues, with recent court actions helping to defend EPA’s veto of the Pebble mine project and a recent rulemaking decision by the National Park Service, prompted by our litigation, that bans bear-baiting on National Preserve lands.

Whatever the wins, losses, and unresolved issues of its day, the fourth decade encapsulates so much of Trustees’ determination and scope of work. The fifth decade brought closure and renewal on some issues, as well as the ongoing threat of massive, potentially catastrophic project proposals like Pebble.

The throughline remains the same—by using its legal expertise in collaboration with clients and partners, Trustees for Alaska is helping create a future where land, water, animals, and people can continue thriving together for generations to come.