Pebble Mine Declares a Victory in Court

ANCHORAGE (CN) – A federal judge dismissed three of four claims from a mining company that says the Environmental Protection Agency conspired to block its giant gold and copper mine in Alaska.
     Pebble Limited Partnership wants to mine low-grade gold and copper and molybdenum from the Pebble mine in the Bristol Bay region of southwest Alaska, near Lake Liamna and Lake Clark. It claims construction of the mine would employ 2,000 to 4,000 people for 4 to 5 years.
     Though U.S. District Judge Russell Holland dismissed three of Pebble’s four claims in June 4, Pebble’s CEO called the ruling a victory, and said the company would proceed with discovery against the EPA.
     Environmentalists are concerned that mine tailing could injure the watershed and its fish habitat. They also worry about Pebble’s large earthen dams, though Pebble claims that its containment structures withstood an 8.8 earthquake that hit Chile in 2010. Environmental groups, however, did not go to court to stop the Pebble mine.
     Pebble sued the federal government in 2014, claiming the EPA had formed three advisory committees specifically to prevent its mining operations.
     Pebble calls those committees the “Anti-Mine Coalition,” the “Anti-Mine Scientists,” and the “Anti-Mine Assessment Team.”
     It claims the EPA violated the Administrative Procedure Act and the Federal Advisory Committee Act (FACA), the latter of which was enacted to keep special advisory committees from unduly influencing the executive branch of the federal government.
     Judge Holland dismissed with prejudice Pebble’s claims that the EPA “‘established’ the Anti-Mine Coalition and the Anti-Mine Scientists” in violation of the Federal Advisory Committee Act.
     He also dismissed with prejudice Pebble’s fourth claim, seeking an injunction against all three committees, and release of documents from all of them.
     He did not dismiss count three, regarding the Anti-Mine Assessment Team and its subgroup, the Intergovernmental Technical Team.
     In its first amended complaint last year, Pebble called the EPA’s actions ” an unprecedented plan to assert EPA’s purported authority under … the federal Clean Water Act … in a manner that will effectively preempt plaintiff form exercising its right through the normal permitting process to extract minerals from the Pebble Mine deposit.”
     The EPA in January sought dismissal of all four claims.
     In dismissing the Anti-Mine Coalition claim with prejudice, Holland wrote: “Plaintiff has failed to state a plausible claim that defendants established” a committee, which cannot be ‘utilized by an agency if it is ‘under the actual management and control of the agency.'”
     He dismissed the Anti-Mine Scientist claim on the same grounds, but said the allegations that the EPA “utilized” the “committee” are plausible.
     He preserved Pebble’s claim against the Anti-Mine Assessment Team, which the mine says is “composed of ‘representatives from state and federal government agencies and from tribal governments.'”
     He threw out Pebble’s fourth claim, for injunctive relief, saying, “an injunction is a remedy, not a separate claim or cause of action.”
     In conclusion, he said that, “those portions of plaintiff’s FACA-based claims in counts one and two, which are based on allegations that defendants ‘established’ the Anti-Mine Coalition and the Anti-Mine Scientists, are dismissed with prejudice. Plaintiff’s count four is also dismissed with prejudice. Defendants are excused from answering certain paragraphs in plaintiffs’ first amended complaint. Defendants’ motion to dismiss is otherwise denied.”
     Pebble CEO Tom Collier called it a major victory in a statement Thursday.
     “The judge’s decision says that we have raised plausible claims that EPA improperly utilized input from anti-mining groups in the establishment of the Bristol Bay Watershed Assessment,” Collier said. “The preliminary injunction preventing the EPA from advancing its preemptive veto against Pebble remains in place.”
     Collier said he plans to seek discovery, deposing federal employees and third parties to build evidence that the EPA used activists to bolster its cause.
     “We are convinced the EPA has pursued a biased process against our project that then drove their actions toward a predetermined outcome,” Collier said. “Our fight with the EPA has been about a fair and transparent process for objectively evaluating a development plan for our project once we have presented it via the permitting process.”
     Calls to the EPA’s Alaska Operations Office were not returned.

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