Posted on February 9, 2021
Weary Alaska communities are seeking permanent protections for the Bristol Bay watershed.
Robin Samuelsen still recalls his first meeting about the prospective Pebble Mine. It was around 2005 or 2006, in Dillingham, Alaska. Listening to an early plan for developing a copper and gold mine in the spawning grounds of Bristol Bay’s abundant salmon, this Curyung tribal chief and commercial fisherman quickly made up his mind. “You’ll kill off our salmon,” Samuelsen remembers saying, adding: “I’ll be up there to stop you.”
More than 15 years later, in November 2020, the US Army Corps of Engineers (USACE) denied the Pebble Mine a key permit, a sharp setback for the mine—though not the first. Already, the mine’s developer, Pebble Limited Partnership (PLP), has filed an appeal challenging that decision. PLP was joined by the State of Alaska, which, in an unusual move, filed its own appeal. Both appeals are currently under review.
Even before these latest developments, however, the people living around the Bristol Bay region had been trying to bring this long-running tug of war to rest once and for all.
Just as he promised at the meeting in Dillingham, Samuelsen is part of a tribally led campaign to garner permanent legal protection for the Bristol Bay region’s thriving wild salmon from large-scale mining proposals—whether that be the Pebble Mine, or whatever comes next. Lindsay Layland, deputy director of the United Tribes of Bristol Bay (UTBB), which is involved in the effort, says the goal of the coalition is to find a way to legally prioritize the salmon that mean so much to the people living and fishing in the region.
Layland says the specter of the Pebble Mine has hung over her head since she was in middle school, listening to local radio reports while on her dad’s fishing boat.
By the time Layland joined UTBB in 2016, just a few years out of college, communities had already waged multiple protracted legal battles to secure protections for the fish. In 2009, six tribal councils in the region and two fishing groups launched a lawsuit that eventually prompted the state to amend the land use plan for the Bristol Bay region, but those changes did not remove the potential for large-scale mining. In 2010, Alaska Native tribes and fishermen petitioned the US Environmental Protection Agency (EPA) to invoke a rarely used but powerful section of the Clean Water Act, known as 404(c).
According to former EPA regional administrator Dennis McLerran, who oversaw this process under the Obama administration, this part of the Clean Water Act empowers the EPA to place certain restrictions on mining and other activities if “it finds that there will be ‘unacceptable adverse impact’” on natural resources, including fisheries.
After a three-year scientific analysis, the EPA in 2014 proposed 404(c) restrictions on any proposal to mine the Pebble deposit if that mining effort would result in certain ecosystem changes. Almost immediately this EPA move, which mine proponents dubbed a “preemptive veto,” triggered years-long legal challenges from PLP. In 2017, under the Trump administration, the EPA agreed to withdraw the not-yet-finalized restrictions. Later that year, PLP submitted its application to USACE.
Fast forward to today, and Samuelsen and Layland are leading a second push for the EPA, now under President Biden, to again use its 404(c) powers. “We’re looking for a long-term fix,” says Samuelsen. Residents are tired of the political back and forth, he says. “It’s time to put Pebble to rest.”
McLerran says the EPA can use its 404(c) power at any point—even if PLP or the State of Alaska wins their appeals. However, the EPA would need to start this regulatory process anew—it couldn’t simply pick up where it left off in 2017, according to McLerran. And this time, the EPA would be considering PLP’s latest public—and recently revealed, private—ambitions for the mine before deciding on a possible 404(c) “veto.” Still, he adds, “the science has not changed.”
Yet even this EPA action would not provide the kind of permanent, watershed-wide protection the tribes and fishermen are seeking. Section 404(c) is a scalpel—a specific tool for a specific problem—says Matt Newman, an attorney working on behalf of UTBB. Depending on what geographic area the EPA might outline in a 404(c) decision, its ruling could make only certain areas around the Pebble deposit off limits to mining, and not the full watershed.
That’s why three tribal organizations—UTBB, Bristol Bay Native Association, and Bristol Bay Economic Development Corporation—and many supporters are championing a much more sweeping approach to protections. In addition to calling for EPA action, the coalition wants Congress to declare the broader Bristol Bay region a national fisheries area, says Newman. This legislative proposal, inspired by the fisheries regulations of the Magnuson-Stevens Act, would establish a first-of-its-kind onshore fisheries area. In this case, Newman says, the legislation would reflect similar restrictions on hardrock mining as Section 404(c), but across all of Bristol Bay’s nine major river basins.
According to PLP CEO John Shively, putting aside an area the size of the state of Ohio in a way “that limits not only mining but potentially other economic development does not make sense and harms opportunities for rural job creation and economic opportunity.”
“The mission is not to close the door to all development,” says Newman, “but rather to close the door on this very particular threat to the fishery.”
At this point, the campaign is just getting off the ground. The coalition is ramping up outreach and education efforts within Bristol Bay and beyond—including trying to make inroads with the new Biden administration.
While Samuelsen is optimistic about the campaign’s chances of success, he says that if the EPA and Congress don’t come alongside and protect Bristol Bay’s salmon, his grandchildren will continue the cause. “We’re the Salmon People,” says Samuelsen. “We are totally intertwined with our salmon.”