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Ninth Circuit Revives Fight Over Mining Plans in Pristine Alaskan Bay

A developer set its sights on a piece of pristine Alaskan wilderness for a proposed mining operation --- plans that have stalled in recent months.

(CN) --- Home to the greatest wild salmon fisheries in the world, Bristol Bay in southwest Alaska also lies near prized natural resources long sought by a mining enterprise. To protect the pristine Alaskan frontier, the Obama administration's U.S. Environmental Protection Agency sought to restrict a proposed mining operation in 2014 --- a move later dumped by the Trump administration.

Conservationists sued, but a federal judge found the Trump EPA's decision unreviewable and dismissed the case.

On Thursday, a Ninth Circuit panel ordered the case remanded to determine if the EPA’s about-face was “arbitrary, capricious, an abuse of discretion, or contrary” to federal law.

The legal history surrounding this pristine slice of Alaskan wilderness stretches back to 2014, when the EPA announced it would seek to restrict mining operations in Bristol Bay under the authority of the Clean Water Act. The proposed Pebble Mine operation would extract copper, gold and other minerals and would be the largest of its kind in North America. The operation’s toxic waste pits could sit at the headwaters to Bristol Bay, and any type of collapse would likely contaminate the region’s watershed.

But in 2019 the Trump EPA withdrew its proposed determination. Several lawsuits followed including a complaint filed by Trout Unlimited, a nonprofit advocacy group, in the District of Alaska. The group challenged the agency's withdrawal decision as a violation of the Clean Water Act and the implementing regulations.

U.S. District Judge Sharon Gleason, a Barack Obama appointee, found the EPA’s decision unreviewable because it fell outside the Clean Water Act and the EPA’s own regulations. Gleason dismissed Trout Unlimited’s case and the group appealed.

“The sole question before us is whether the EPA’s withdrawal of its proposed determination is reviewable,” wrote U.S. Circuit Judge Susan Graber, a Bill Clinton appointee, for the majority.

The EPA’s withdrawal decision followed numerous public meetings and over two million public comments. The formal reason for the withdrawal centered on the agency receiving more information than it had in 2014. The EPA said under the Clean Water Act, the agency’s administrators can determine whether an area is suitable to be a disposal site after public input.

“The statute clearly conveys broad discretion on the administrator,” Graber wrote, referring to the EPA's chief. “The administrator ‘is authorized,’ but not required, to restrict an area.”

Graber said "nothing in the statute constrains the administrator’s discretion to initiate a public notice and comment period or, ultimately, to decline to invoke his or her” authority under the Clean Water Act.

The panel lacks jurisdiction to review whether the Trump EPA’s administrator abused their discretion by declining to exercise their authority and the statute grants “unfettered discretion to that official," Graber wrote. Considering the plethora of geographical areas that an EPA administrator conceivably could weigh in on, it stands to reason that fielding numerous legal challenges would overwhelm the agency and clog up the courts in the name of protecting the nation’s waters.

“Accordingly, we affirm the district court’s dismissal of plaintiff’s complaint insofar as the complaint rests directly on the Clean Water Act,” wrote Graber.

The panel’s analysis did not end there, however. Graber took up the EPA's unusual move of withdrawing its proposal, which has only happened twice in a half-century. While the Clean Water Act gives the EPA broad discretion, the agency’s own regulations offer some leverage to the petitioners.

“Reviewability does not mean that the agency has no discretion at all,” Graber wrote. “On remand, the district court must accord ‘the proper deference’ to the agency’s decision on the merits when applying the [Administrative Procedure Act's] standards of review.”

While the Trump administration greenlighted the Pebble Mine project in 2019, the operation hit several major roadblocks. In August 2020, the U.S. Army Corps of Engineers said impacts to the watershed would be “unavoidable” and a few months later the Corps denied the developer’s application under the Clean Water Act and the Rivers and Harbors Act.

Graber found the EPA’s administrator’s withdrawal has a “real-world legal effect” of hindering the Corps’ authority to issue a permit.

U.S. Circuit Judge Daniel Bress, a Trump appointee, dissented, claiming the majority had misread the regulations and was rewriting the EPA's rules.

“Sometimes there really is just no law to apply,” wrote Bress. “Yet from a Clean Water Act scheme that the majority concedes gives EPA unfettered discretion, our court purports to discover a judicially enforceable standard for reviewing EPA’s decision to withdraw an initial exploratory determination — which is itself merely an early-stage decision to cease pursuing a purely discretionary enforcement mechanism.”

He continued: “But the majority concludes that a withdrawal of a proposed determination nevertheless requires the Regional Administrator to determine that a specification is not likely to have an unacceptable adverse effect. The majority’s twisted inversion of the regulation is clearly wrong.”

Bress foresees the majority’s decision increasing costs for the EPA whenever it takes up similar decision-making under the Clean Water Act.

“Those who wish to stop developments like the Pebble Mine will no doubt applaud this result. But that constituency will surely be displeased when an EPA less inclined toward their views decides that initiating the otherwise discretionary § 404(c) process now comes at too great a price,” wrote Bress.

U.S. District Judge Robert Dawson, a Bill Clinton appointee sitting by designation from the Western District of Arkansas rounded out the panel.

An EPA spokesperson said the agency is reviewing the decision. But Norm Van Vactor, CEO with plaintiff Bristol Bay Economic Development Corporation, called the Ninth Circuit’s decision a huge deal.

“Our position has been vindicated and it’s still on the table for the district court to review,” Vactor said in a phone interview.

Nelli Williams, Alaska director for Trout Unlimited, said the 2019 withdrawal contradicted the EPA's previous studies and undermined the best interests of Alaskans, Tribes, hunters, anglers and commercial fishermen. 

"It is time for the EPA to move forward and finalize Clean Water Act protections for Bristol Bay," Williams said in a statement. "We still have more work to do to protect Bristol Bay and its salmon fisheries, but this confirms that trustworthy science and public input should be at the forefront as decisions are made.”  

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