Federal judge allows Pebble case against EPA to continue

Pebble Limited Partnership’s lawsuit against the Environmental Protection Agency will continue as a federal judge denied the agency’s motion to dismiss June 4.

U.S. Alaska District Court Judge H. Russel Holland concluded that while the EPA may not have established the three “anti-mine” groups as described by Pebble in its complaint — the Anti-Mine Coalition, Scientists and Assessment Team — agency staff could have utilized them to draft the pending determination to block development of Pebble’s copper and gold claims near Bristol Bay.

The mining organization’s attorneys argued during a May 28 hearing that the agency was in cahoots with area tribes and mine opposition groups for years prior to and during the Bristol Bay Watershed Assessment process.

The exhaustive assessment, which found large-scale mining would irreparably harm the region’s robust salmon fisheries, is the basis for the EPA’s attempt to preemptively stop Pebble through its Clean Water Act Section 404(c) wetlands protection authority.

Pebble’s primary argument centers on the claim that the EPA violated the Federal Advisory Committee Act, or FACA, which requires agencies to remain objective and follow strict public notice and open meetings guidelines on policy issues when taking input from interest groups.

“We are convinced the EPA has pursued a biased process against our project that then drove their actions toward a predetermined outcome,” Pebble CEO Tom Collier said in a formal statement after the order. “Our fight with the EPA has been about a fair and transparent process for objectively evaluating a development plan for our project once we have presented it via the permitting process. In addition to this case, we are seeking documents to show the EPA’s lack of transparency and action under the Freedom Information Act.”

He also said the group has commissioned an independent investigation into the EPA’s actions in regards to Pebble.

The EPA Inspector General is in the midst of a review of the Bristol Bay Watershed Assessment that began more than a year ago.

As far as the court case goes, Pebble will now seek to depose federal employees and members of third-party groups involved in drafting the assessment, Collier said.

The agency claims that even if it unknowingly violated FACA, Pebble had ample opportunity to provide input during more than 30 meetings with EPA officials since 2003 — long before the assessment process officially began in 2011.

The United Tribes of Bristol Bay and Trout Unlimited Alaska, two staunch opponent groups of the mine, issued statements saying Holland’s ruling doesn’t change the fact that the science behind the assessment proves Pebble would damage the region’s aquatic resources.

“This case is simply another delay tactic from Pebble. The company’s complaints about the federal advisory process — a process Pebble itself participated in —in no way changes the scientific fact that this mine, in this place, will devastate our fishery, “ UTBB President Robert Heyano said in a June 4 release. “Today’s ruling was merely a preliminary step in a judicial process that isn’t over, and if further litigation is the price necessary to protect the Bristol Bay fishery and our traditional way of life, then it will be well worth it.”

In November, Holland issued an injunction to halt all work on the 404(c) process until the court case is resolved.

He dismissed with prejudice Pebble’s allegations that the EPA established the Anti-Mine Coalition and Anti-Mine Scientists groups in the latest order. Holland also dismissed with prejudice Pebble’s claim for injunctive relief.

The EPA was also relieved from answering chunks of the amended Pebble complaint, which it claimed violated court procedure.

“(Pebble’s) first amended complaint is lengthy and does contain irrelevant and redundant allegations and unnecessary factual details,” Holland wrote. “But rather than dismissing the first amended complaint, the court will excuse the defendants from answering” the sections that do not pertain to the FACA accusations.

Holland called Pebble’s original, 138-page complaint, an “outrageous violation” of court procedural guidelines when issuing the November injunction.

Also on May 28, a three-judge panel from the 9th Circuit Court of Appeals dismissed a previous lawsuit by Pebble — also heard and dismissed by Holland last September — that the EPA overstepped its authority by beginning the 404(c) process before a mine plan or permit applications were submitted. It was determined that case was not ripe for a ruling until the mine veto was finalized.

Elwood Brehmer can be reached at [email protected].

11/20/2016 - 5:07pm