Two Southwest Alaska tribal entities represented by Earthjustice, the Orutsaramiut Native Council and the Native Village of Eek, have appealed in the Alaska Supreme Court for a review of a lower court decision upholding 12 state water rights permits for the Donlin Gold Mine project.
In their appeal to the Alaska Supreme Court, filed on Monday, ONC and the Native Village of Eek appealed a lower court decision that would allow Donlin to use millions of gallons of water for building and operating the mine project. They contend that such action would involve dewatering fish habitat and potentially contaminating waters surrounding the project, threatening human health and aquatic life. Their appeal contends that the Alaska Department of Natural Resources (DNR) should have considered the cumulative impacts of the water rights permits in context of the larger mine project, not just as isolated water permits, when issuing those permits two years ago.
An earlier appeal, filed in September, urges the Alaska Superior Court to reverse an Alaska Department of Environmental Conservation (DEC) ruling upholding a state water quality permit.
In addition to these two state appeals, the Orutsaramiut Native Council, Native Village of Eek, Chevak Native Village, Native Village of Kwigillingok, and Cook Inletkeeper are challenging the Donlin Gold Mine through one other state challenge to a right-of-way lease for a pipeline that would power the mine. That appeal is also now before the Alaska Supreme Court.
Donlin Gold LLC, in the historic Kuskokwim gold belt of Southwest Alaska, 10 miles north of the village of Crooked Creek, lies on surface lands of The Kuskokwim Corp, and subsurface lands of Calista Corp., the village and regional Alaska Native corporations were established under the 1971 Alaska Native Claims Settlement Act (ANCSA). The limited liability corporation is jointly owned by Barrick Gold US Inc. and Nova Gold Resources Alaska Inc.
Calista’s regional leaders years ago identified the Crooked Creek area as one of great potential for development of natural resources, with economic opportunities to the regional Alaska Native corporation’s shareholders. The Kuskokwim Corp. was formed in the spring of 1977, following the merger of 10 affiliated villages Native corporations.
Calista notes on its company website that in 1976 Calista and The Kuskokwim Corp. struck an agreement for mining rights at Placer Dome, which has since been purchased by Barrick Gold. Today Donlin Gold LLC is equally owned by Barrick Gold and Novagold. Calista sees the mine project as a way to provide employment for shareholders.
Resource extraction issues on Alaska Native lands are of interest to all ANCSA shareholders, because Section 7 (i) of ANCSA requires that any revenues an Alaska Native regional corporation receives from ANCSA lands (for example, from timber resources or natural resources in subsurface estate) must be shared in a 70/30 split. Seventy percent of the revenue is disbursed to the other Alaska Native regional corporations and the remaining 30% is kept by the regional corporation that developed the natural resource.
The Alaska Department of Natural Resources (DNR) notes on its website that the state requires extensive aquatic monitoring for large mines, providing a continual check-up on high-value species and overall ecological indicators, and that Donlin has conducted such monitoring since 2020.
Donlin has estimated the project would take three to four years to construct, followed by an active mine life of about 27 years. Key mine site facilities are to include an open pit, a waste rock facility, a mill plant, a tailings storage facility, a power plant, and water management structures including a wastewater treatment plant. Once operating the mine is estimated to produce about one million ounces of gold a year, according to the DNR website.
General cargo for the mine would be delivered by marine barge to Bethel, then loaded onto river barges for transport up the river to the project’s proposed port facility. A proposed 30-mile all-season access road would be constructed to bring the cargo from the port to the mine site.
Novagold Resources Inc., headquartered in Salt Lake City, Utah, describes itself as a “pure gold play focused on the Donlin Gold project” in equal partnership with Barrick Gold, the world’s largest gold mining firm, with headquarters in Vancouver, B.C. The project has strong Alaska Native corporation and community partnerships, according to Novagold.
Earlier this year a lower court sided with DNR in ruling that a comprehensive look at the broader environmental impacts, required under Article VIII of the Alaska Constitution, only applies to projects build in phases. The appellants disagree with that interpretation of the constitution, Earthjustice said in its statement announcing the appeal. The lower court ruling also sided with DNR in saying the Water Use Act did not require DNR to consider the creation of a pit lake, which will fill with toxic water when the mine closes and will have to be treated in perpetuity to prevent contaminated water from spilling into surrounding salmon streams, Earthjustice said.
“The impacts from this proposed open pit mine, which would be the largest pure gold mine in the world, must be taken seriously and considered comprehensively,” said ONC Executive Director Brian Henry. “The state has an obligation to protect the Kuskokwim River and its tributaries from possible environmental damage caused by the Donlin Gold Mine. Our very existence and ways of life depend on it.”
Anne Pete, president of the Native Village of Eek, said that the appeal was filed because “too much is at stake for these permits to be issued without more thorough consideration of the impacts.”
“Issuing these state water permits will also inevitably lead to the creation of a toxic pit lake when the mine is closed, so it makes sense that should be looked at now, not after these permits are issued and it’s too late,” Pete said. “DNR must take a harder look at the numerous harms to the Kuskokwim region that would be caused by the Donlin mine.”
“The State has concluded that the environmental analysis supporting the issuance of a Clean Water Act Section 404 permit properly considered reasonable potential impacts from the Donlin project,” said Sam Curtis an information officer with the Alaska Department of Law. “The Section 404 permit, with its stipulations and conditions, in conjunction with the other State and Federal permits that are required, will afford adequate protections to aquatic resources if properly followed. Accordingly, the State has intervened in the action to defend the environmental analysis resulting in the issuance of the Section 404 permit.”
According to Kristina Woolston, external affairs manager for Donlin Gold in Anchorage, the mining
firm has worked collaboratively with Calista and the Kuskokwim Corp. for over 25 years and Donlin
Gold brings strong economic benefits to the Yukon-Kuskokwim region.
“We have long supported a stringent regulatory process to ensure the project can and will be
conducted in an environmentally responsible way,” said Dan Graham, general manager for Donlin
Gold. “We are confident in the scientific data and studies done over multiple years, which have
repeatedly shown that the state’s DNR made the right decision.”
In the other appeal, filed in Alaska Superior Court in September, ONC asked the court to vacate a decision by DEC Commissioner Jason Brune on his last day in office to uphold a state water quality certificate called a Section 401 Certificate. Brune served as DEC commissioner for nearly five years before his resignation in August, when he said he would be pursuing opportunities in the private sector. Brune was previously employed by Cook Inlet Region Inc, and spent 11 years with the Resource Development Council for Alaska, a statewide trade association comprised of individuals and companies from Alaska’s fishing, forestry, mining, oil and gas, and tourism industries.
EarthJustice contends that Brune’s decision to issue the certificate authorizes significant harm to salmon habitat in an 11-mile segment of Crooked Creek, a tributary of the Kuskokwim River adjacent to the proposed mine. The harm would be caused by reducing the water flow in the stream, which would expose salmon spawning beds and reduce salmon survival, the appeal argues. The reduced flow would also raise stream temperatures that would also harm salmon.
Donlin’s own studies showed that—if climate change is ignored—stream temperatures would rise to within ½ of a degree Fahrenheit of the standard needed for salmon to thrive. Considering increased stream temperatures expected due to climate change, violations of the temperature standard would almost certainly occur, the appeal argues.
“The DEC Commissioner refused to take these concerns seriously and also continues to ignore warming to our rivers from climate change which we all know will happen,” said Henry. “This decision knowingly sacrifices salmon, which our people depend on for their existence.”
The most recent case challenging the proposed Donlin Gold mine was filed in federal court by six Southwest Alaska Tribes – ONC, Tuluksak Native Community, the Organized Village of Kwethluk, the Native Village of Eek, Native Village of Kwigillingok, and Chevak Native Village.
The federal lawsuit targets environmental and subsistence studies and authorizations for the mine that plaintiffs contend are flawed.
