What’s new with Arctic Refuge litigation, plus the return of the Pebble monstrosity

By Dawnell Smith

We are involved in three lawsuits concerning the Arctic National Wildlife Refuge, one paused, another in waiting, and our legal action this month to support the federal government’s 2023 cancellation of leases. Our aim in all three centers on protecting lands vital to the Porcupine caribou herd and sacred to the Gwich’in Nation of Alaska and Canada.

The Porcupine Caribou Herd. Photo by Florian Shulz.

Let’s start with our first lawsuit challenging the 2020 leasing program that sold off the coastal plain to oil and gas interests. That suit is in pause mode while we await the Biden administration’s final environmental impact statement and decision for a revised leasing program. Though the 2017 Tax Act requires a leasing program, it cannot be one that violates laws, and defies science and the rights of Gwich’in communities.

The U.S. Department of the Interior committed to revising the destructive and unlawful 2020 leasing program in early 2021 when it paused all permitting and suspended leases held by the Alaska Industrial Development and Export Authority. AIDEA made low-ball bids during the lease sale, but no major oil and gas company bid. Overall, the lease sale that fossil fuel advocates touted as a windfall of revenue for the federal government generated less than a fraction of one percent of the revenues promised when Congress passed the Tax Act.

Our second lawsuit stems from the State of Alaska and AIDEA suing the Biden administration for suspending those AIDEA leases. We intervened on behalf of our clients, as did Tribal partners. The District Court ruled in our favor last fall, but AIDEA could appeal to the Ninth Circuit.

The third and most recent lawsuit relates to Interior’s cancellation of AIDEA’s leases entirely in September 2023. AIDEA challenged the cancellation in court, and we intervened this month. The court granted our motion to intervene, so we will be arguing in that case in the months to come. We will be asserting again that the federal government has the authority and the obligation to revise the 2020 leasing program, which was laden with legal problems—the very ones we outlined in our original 2020 lawsuit.

As always, we stand with the Gwich’in and other clients, and our many partners, in protecting the Porcupine caribou herd, the rights of the Gwich’in people, and the health of a region essential to future generations.

The monstrous Pebble in our collective shoe

The Pebble mine proposal that everyone wants tossed out to sea for good has washed up again with another lawsuit. Northern Dynasty Minerals and Pebble Limited Partnership, a U.S. subsidiary of Northern Dynasty—a Canadian conglomerate—sued the federal government to challenge the U.S. Environmental Protection Agency’s Clean Water Act determination protecting the Bristol Bay watershed.

You might remember the celebration in Alaska and across the country when EPA concluded that any mine such as Pebble would devastate salmon and waterways, with potentially catastrophic consequences to local communities and the interconnected animal and plant life of the region.

The Pebble threat to  to Bristol Bay salmon and communities has gone on too long.

This latest lawsuit argues that EPA does not have the authority to protect Bristol Bay from the harmful impacts of Pebble. A press release produced by a coalition of Tribes and fishing and conservation groups responded appropriately: “Bristol Bay Tribes, commercial fishers, and people in the region first asked the EPA to step in and use its authority to veto Pebble Mine more than thirteen years ago, and courts have repeatedly upheld the EPA’s authority. The EPA’s 404(c) authority is an exceptionally durable tool that the agency has used judiciously – only three times in the last 30 years and 14 times over its 50-year history.”

This is a good time to point out a report that shows how mining companies like Pebble can operate within a shady business model in which “a small cohort of distant mine owners and major investors get rich while carrying almost no risk.”

Pebble does exactly that, while Bristol Bay communities bear the burden and the cost of living with and opposing the ongoing threat and the endless cycles of administrative processes and legal actions. It requires tremendous time, money, and energy from local people to simply protect their livelihoods, ways of life, communities, and homelands.

Just to throw salt in the wounds of local communities wholeheartedly opposed to the Pebble proponents’ endless attempts to resurrect and make money from the Pebble proposal machinery, the State of Alaska and Northern Dynasty Minerals/Pebble Limited Partnership also filed two separate lawsuits in the federal court of claims in Washington, D.C., alleging that EPA’s determination constitutes a breach of contract and a “taking” of their right to exploit lands in the Bristol Bay watershed.

Once again, a massive Outside corporation that employs dodgy and convoluted business loopholes to enrich its owners and wealthy investors via a mission of “take, take, take” argues that those protecting the local interests of communities in Bristol Bay are “taking” the company’s right to extract and exploit the region—salmon, clean water, and food caches be damned.

You can bet we will engage alongside Tribes, communities, and the majority of Alaskans who know Pebble for what it is: a mega-disaster in the making, with Outsiders looking to take the money and run.