Pebble Mine - Active Legal Challenges

Active Legal Challenges

On December 18, 2009, an appeal was filed in Alaska Superior Court contending that a decision in November 2009 by the Alaska Department of Natural Resources’ commissioner rejecting their challenge of an exploration permit for the proposed Pebble Mine issued in February 2009 was inappropriate. The suit contends that the Department of Natural Resources failed to give Alaskans adequate notice and opportunity to comment on the permit, and that it failed to consider the timely filed appeal. Trustees for Alaska is pursuing the suit for Nunamta Aulukestai and two Bristol Bay residents.

Six federally recognized tribes filed Nondalton Tribal Council et al. v. State of Alaska DNR with the Alaska Superior Court (Third Judicial District) on May 5, 2009. The suit challenges the validity of the 2005 Bristol Bay Area Plan, one of many Area Plans created and administered by the State of Alaska that, along with other State and Federal rules, define land status and the appropriate and legal uses of State land within the plan boundaries.

The Bristol Bay Area Plan (BBAP) applies to about 12 million acres (49,000 km2) of state-owned uplands and lands beneath rivers and lakes in the Bristol Bay drainages, including lands at and in the vicinity of the proposed mine. The plan also covers about 7 million acres (28,000 km2) of state-owned tide and submerged lands.

The suit alleges that the 2005 BBAP, which replaced the original 1984 version, drastically altered, without legal justification, the land-use designations, classifications and acreages defined in the 1984 plan; and that the 2005 plan fails to provide adequate protection for subsistence resources, sport hunting and fishing, wildlife habitat and other renewable resources. If successful, the suit will require the Alaska Department of Natural Resources to write a new area plan, a many months-long process involving much public input and review of draft versions, although ultimately, approval of an area plan is decided by the Commissioner of Natural Resources, an appointee of the Governor. As of Aug. 7, 2009, DNR had not filed an answer to the complaint.

Nunamta Aulukestai et al. v. State of Alaska DNR, was filed in Alaska Superior Court (Third Judicial District) on July 29, 2009, by Trustees for Alaska on behalf of the Bristol Bay Native organization Nunamta Aulukestai, former Alaska First Lady Bella Hammond, original Alaska Constitutional Convention delegate Victor Fischer, and other individuals. The suit seeks "Declaratory and Injunctive Relief," asserting that the Alaska Department of Natural Resources repeatedly violated Section VIII of the Alaska Constitution, which specifically provides that there shall be, "...no disposals or leases of state lands...without prior public notice and other safeguards of the public's interest..."

The plaintiffs are seeking, among other things, an injunction voiding the existing permits, including water-use permits, issued to Pebble Limited Partnership, Pebble East Corp., and Pebble West Corp. by the State of Alaska Department of Natural Resources. The injunction being sought is specific to Pebble permits and would not directly apply to other mineral exploration projects (or to mining operations) in the state. The suit alleges that the DNR's "pattern of permitting," is defective because it has not been sufficiently rigorous in determining that issuing a permit will best serve public interest, as demonstrated by a lack of documented scientific studies by the DNR and by a lack of public review and input, prior to issuing routine permits. A Declaration by one of the plaintiffs references the Commentary on Article VIII on State Lands and Natural Resources of December 15, 1955; "As requirements change and many tasks become routine, appropriate modifications can be made in procedures if rigid requirements are not specified in the Constitution itself."

The suit also alleges that significant, and documented, adverse effects on land, water, and wildlife have already occurred as a result of drilling and other exploration activities at Pebble since 1989. In late 2009 the presiding judge rejected a State of Alaska motion to dismiss the case and also denied a motion for a preliminary injunction to stop mining exploration at the Pebble Project. A Petition for Review on the preliminary injunction decision was filed with the Alaska Supreme Court.

In July 2010, the Alaska Superior Court issued a ruling that Nunamta Aulukestai et al. v. State of Alaska DNR will proceed to a non-jury trial in December 2010. The ruling dismisses one of the six claims in the lawsuit; and limits the scope of the upcoming trial specifically to the Pebble permits, rather than to the Alaska mineral exploration permitting system in general.