Arguments were heard in U.S. District Court in Anchorage on Monday, March 2, in litigation that will determine whether a case brought against the Environmental Protection Agency related to Pebble mine permits will move forward or be dismissed.
The lawsuit brought by the Bristol Bay Defense Alliance contends that the EPA’s move to withdraw proposed Clean Water Act protections contained in its 2014 proposed determination was unlawful, arbitrary and runs counter to the scientific and public record. Those protections were first sought by six Bristol Bay tribes in 2010, and quickly garnered support from commercial and sport fishing entities.
The proposed determination would have preemptively vetoed a permit for large scale mining that the Pebble Limited Partnership sought from the U.S. Army Corps of Engineers to build the mine adjacent to the Bristol Bay watershed.
U.S. District Judge Sharon Gleason said she would rule by month’s end on the EPA’s motion to dismiss the case. which was argued on behalf of the EPA by Justice Department attorney Mark Nitczynski and for the Bristol Bay Defense Alliance by Seattle attorney Jeff Feldman. Members of the alliance include the Bristol Bay Native Association, United Tribes of Bristol Bay, Bristol Bay Regional Seafood Development Association, Bristol Bay Reserve Association and Bristol Bay Economic Development Corp.
Nitczynski argued that the EPA’s decision is presumptively unreviewable, and that if the case isn’t dismissed, every EPA decision to not use its veto power on any U.S. Army Corps of Engineers permit would be subject to review.
“This is not the kind of case that is traditionally unreviewable,” Feldman countered, adding that Congress did not intend (in the Clean Water Act) to give that level of decision to the EPA.
“Although we are now waiting for the judge’s ruling in this case, our primary goal is unchanged: protecting and promoting the Bristol Bay fishery,” said Andy Wink, executive director of the BBRSDA, who attended the hearing. “The science still supports 404 (of the Clean Water Act) protections in Bristol Bay, and we will continue working to secure them.”
“While we await a decision, Bristol Bay fishermen are preparing for the coming Bristol Bay salmon season with another strong run forecasted by ADF&G,” said Norm Van Vactor, chief executive officer of the BBEDC, also on hand for the hearing. “The work to ready nets and boats for another harvest continues, and we will do everything we can to ensure there are many more seasons to come.”
