Corps shuts state out of Pebble appeal process

  • An employee of Northern Dynasty Minerals Inc. mans a drilling rig in the Pebble mine site near the village of Iliamna in this file photo. The U.S. Army Corps of Engineers has denied a state request to intervene in the appeal of a permit denial issued this last November that halted the project. (Photo/File/Los Angeles Times/Tribune News Service)

Pebble Limited Partnership can appeal the denial of a primary environmental permit for the company’s large mine proposal but the State of Alaska cannot, U.S. Army Corps of Engineers officials ruled in separate Feb. 24 decisions.

In a Feb. 26 statement from his office announcing the Corps’ determination that the state does not have standing to appeal the permit decision, Gov. Mike Dunleavy said that it is another instance of federal officials inhibiting the state from fulfilling its obligation to develop its natural resources.

“This is a precedent-setting decision that puts all possible resource development projects on state land at risk and cannot be accepted,” Dunleavy said. “We will not stop fighting for Alaska’s economic prosperity.”

Then-Attorney General Ed Sniffen argued in the state’s Jan. 22 appeal to the denial of Pebble’s wetlands fill permit that commitments made in the Alaska Statehood Act and other Alaska-centric federal legislation require state officials to push back against federal authorities that challenge the state’s use of its resources.

Army Corps of Engineers Pacific Division Commander Kirk Gibbs wrote to state Department of Law officials that the state does not meet the Corps’ definition of an “affected party” to appeal.

The regulations governing the permit appeals process require the appellant be “a permit applicant, landowner, a lease, easement or option holder (i.e., an individual who has an identifiable and substantial legal interest in the property) who has received an approved jurisdictional determination, permit denial, or has declined a proffered individual permit,” according to Gibbs’ letter.

Gibbs is also the decision-maker on the merits of Pebble’s appeal.

While the Pebble deposit and the vast majority of the project’s extensive network of support infrastructure is on state land, the permit denial was directed specifically at Pebble, which applied for the Clean Water Act permit in late 2017.

Pebble’s parent company Northern Dynasty Minerals separately announced Feb. 26 that Corps of Engineers Pacific Division officials deemed that Pebble’s appeal is “complete and meets the criteria for appeal.”

The Dunleavy administration was also seeking to participate in Pebble’s appeal conference intended to clarify and explain the administrative record between the Corps and the company, which Gibbs also all-but rejected.

Administration officials contended that because it has “substantial and identifiable legal interests in the property in question,” the state should be able to participate in the conference.

Gibbs wrote that the meeting is limited to the appellant, their agents and Corps staff, and state officials would be asked to participate only if they can contribute to clarifying the administrative record that will be adjudicated in the appeal.

It’s unclear exactly how long it will take before Gibbs rules on Pebble’s appeal. A Pacific Division spokesman previously said Corps officials have an informal goal of ruling within 90 days of an appeal being filed but the complexity of the Pebble project could make for a longer wait.

Dunleavy has long insisted he maintains a “neutral” stance on the highly controversial project, a claim mine opponents is hollow given the appeal and prior instances in which he and officials in his administration attempted to assist Pebble through federal permitting.

A spokeswoman for Dunleavy said in response to questions following the initial appeal that the governor believes the Army Corps Alaska District’s record of decision denying Pebble was politicized after it previously seemed to be on track for a wetlands fill permit.

The final Pebble environmental impact statement published last July largely maintained the conclusions reached in the draft version published in early 2019: that the project would not have measurable impacts on Bristol Bay’s salmon populations or the major fishery there.

However, officials from several state and federal resource agencies issued comments on the draft that were largely critical of the review for what they viewed as significant gaps in background data and overly broad or simplified conclusions made by Corps officials.

The Nov. 25, 2020, decision to deny Pebble’s permit application followed a rigorous compensatory wetlands mitigation requirements by the Corps in late August and the September release of secretly recorded videoconferences in which then-Pebble CEO Tom Collier and Northern Dynasty CEO Ron Thiessen outlined plans for expanding Pebble far beyond what they have proposed and discussed potentially beneficial relationships with Alaska politicians, including Dunleavy, with activists posting as potential investors.

Elwood Brehmer can be reached at [email protected].

Updated: 
03/03/2021 - 9:18am