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Monday, January 9, 2017

NRDC: Pebble Mine 2016 Year in Review: Salmon First, Pebble Never

Pebble Mine 2016 in Review:  'Salmon First, Pebble Never' by Joel Reynolds

2016 closed for the Pebble Mine like so many years before it — with no progress: no permit, no application, and no new financial partner. As it did in 2015, the last remaining company in the once-formidable Pebble Partnership - the small Canadian mining exploration company Northern Dynasty Minerals - continued frantically to tread water for dear life, suing EPA, lobbying Congress, threatening the U.S. State Department, and searching each quarter for more money to cover its legal fees. Prospects for actual mining activity remained non-existent as opposition deepened in Alaska and broadened to the international stage.

Despite short-term profit-taking on the ups and downs of the financial markets (including a surge in the wake of Donald Trump’s election), the Pebble prospect’s owner remains a bad long-term investment. Summed up last week by the Motley Fool’s stock analysts, “regardless of the reason for this latest move higher in Northern Dynasty Minerals, your best bet is going to be keep far, far away.”

Some highlights:
  • In January, following a year and a half investigation conducted at Northern Dynasty ‘s request, the U.S. Environmental Protection Agency’s (“EPA”) Inspector General announced its findings exonerating EPA of any misconduct, collusion, or improper process and rejecting Northern Dynasty’s claims of unfairness. According to the IG’s report, “[b]ased on available information, we found no evidence of bias in how the EPA conducted its assessment of the Bristol Bay watershed, or that the EPA predetermined the assessment outcome.” The Pebble Partnership promptly condemned the investigation that it had previously demanded.
  • Also in January, Northern Dynasty repackaged its allegations of unfairness and sent them to the U.S. State Department, threatening a claim for damages under the North American Free Trade Agreement (“NAFTA”) Chapter 11. In a 42-page letter, the company alleged that EPA’s “decision” on the Pebble Mine “was taken in a grossly abusive, arbitrary and deliberately opaque manner, in breach of standards of due process and good administrative procedure, in violation of U.S. law, and in breach of Northern Dynasty’s legitimate expectation . . . .” In May, NRDC personally delivered to the State Department a detailed response to Northern Dynasty’s self-serving, groundless claim of entitlement to a taxpayer bail-out. No NAFTA claim has been submitted to date by the company.
  • In March, in its own Consolidated Financial Statements (as well as Deloitte LLP’s audit and the company’s Management’s Discussion and Analysis for the year ending December 31, 2015), Northern Dynasty publicly acknowledged its depleted financial condition. The company conceded that there is now “material uncertainty that casts substantial doubt about the company’s ability to continue as a going concern.” Despite this, according to the company’ first quarter financial disclosure report, the company also committed to a series of multi-million dollar bonuses for its lawyers and Pebble Partnership CEO Tom Collier contingent on turning the company’s legal position around.
  • Also in March, The Pebble Partnership issued a new (but significantly reduced in number) round of third-party subpoenas, continuing its fishing expedition for any basis in fact to support its lawsuit against EPA under the Federal Advisory Committee Act (“FACA”). But in late November - a year after the initial round of such subpoenas had been quashed — the federal court in Alaska once again thwarted Pebble’s continuing efforts to harass opponents, granting a motion to quash the subpoena issued to former Bristol Bay United Director Shoren Brown and University of Washington professor Tom Quinn. According to the court, these subpoenas “are extremely broad and are not focused on the real issues in this case” and “would impose an undue burden . . . .” None of the remaining subpoenas is expected to survive legal challenge.
  • During the spring and summer, project opponents took the Pebble battle to the international arena through a motion condemning the project — introduced at, and ultimately approved virtually unanimously by, the World Conservation Congress in September. Hosted every four years by the world’s largest network of conservation experts, the 1,300 member International Union for the Conservation of Nature (or “IUCN”) brings together thousands of scientists and other environmental professionals from over 170 countries, including members from 89 states, 129 government agencies, and over 1,000 domestic and international non-governmental organizations. This is the first formal international condemnation of the Pebble Mine project.
  • In November, more than two decades of Republican dominance in the Alaska State House of Representatives ended with the election of a new majority coalition of Democrats and moderate Republicans. Longtime Pebble Mine opponent Bryce Edgmon from Dillingham has been tapped to become the first Native Speaker of the House, joining Alaska Governor Bill Walker in a growing wave of opposition to the Pebble project among the state’s political leadership.
  • In late December, Alaska state resource managers for the first time delayed a decision on renewal of the land use permit for the Pebble site, granting instead only a 90-day extension during which the agency will be reviewing an unprecedented number of public comments and considering additional operational conditions. This latest setback for the project follows the release in November of a report by the Center for Science in Public Participation. Commissioned by United Tribes of Bristol Bay, the report found, among other problems, that some holes weren’t properly plugged, drill cuttings were leaching acid, tundra mat had been allowed to deteriorate, groundwater seeping up from holes has been contaminated with heavy metals (including potentially toxic levels of copper), and numerous steel pipes used to stabilize boreholes were sticking up from the ground. In all, 71 of the 107 sites inspected by the Center “were not fully reclaimed” based on observations of dead vegetation, flowing water, and open and abandoned drill casings.
  • Finally, on the eve of 2017, The Pebble Partnership and EPA filed a joint request for a three-month stay of Pebble’s FACA lawsuit against the agency. The request was premised on the parties’ decision to focus exclusively on settlement discussions that, although under way for months, had thus far been unsuccessful. In January, the federal court granted the request for a stay.
As 2016 ended, and as the Trump Administration prepares to take over at the federal level, there is intense speculation by Northern Dynasty (aka The Pebble Partnership) about what this portends for (1) the ongoing EPA review, including the Proposed Determination under section 404(c) of the Clean Water Act, and (2) their continuing efforts to find a new financial partner. In its latest financial report, Northern Dynasty Minerals admits that “[a]dditional financing will be required in order to progress any material expenditures at the Pebble Project,” and further that if it is unable to secure financing to “generate sufficient cash flow to meet obligations as they come due,” Northern Dynasty may “consider reducing or curtailing its operations.”

While time will tell, what remains certain is the unrelenting opposition from the broad-based coalition that has dogged this project for over a decade. Most important is the deep and abiding unpopularity of the project among Alaskans themselves. The regional opposition to Pebble is near-unanimous, with over 80% opposition in the region (including from shareholders of the Bristol Bay Native Corporation, the region’s largest developer). The state-wide opposition isn’t far behind - estimated consistently at over 60% based on polling and at 65% based on the state-wide adoption of the Bristol Bay Forever initiative in 2014.

For Northern Dynasty — and for any potential partner - the hard truth is that the Pebble Mine is going nowhere. Recall that this is the project abandoned by all of Northern Dynasty’s former mining partners, including Mitsubishi Corporation (in 2011), Anglo American (in 2013), and Rio Tinto (in 2014), three of the largest mining companies in the world. Northern Dynasty remains a lonely voice of desperation, searching for vindication of its investors’ mindless pursuit of profit at the expense of everyone else — and, most particularly, at the expense of the people and communities of Bristol Bay.

The Pebble Mine is and always will be a completely unacceptable project, unjustified by the science, inconsistent with the law, and at odds with common sense. NRDC is committed to doing whatever is required to ensure the mine’s definitive defeat.

Salmon first, Pebble never. Take action now.