Pebble Mine 2015 in Review: 'The Year of Failing Expensively' by Joel Reynolds

Pebble Mine 2015 in Review:  'The Year of Failing Expensively' by Joel Reynolds

The battle to stop the infamous Pebble Mine isn't over, but if you're a shareholder in the embattled project, 2015 was another disappointing year.

photograph © copyright, ROBERT GLENN KETCHUM, 2016

In court and in Congress, trying desperately to recharge its reckless scheme for a massive open pit mine in the headwaters of the Bristol Bay wild salmon fishery, The Pebble Partnership ("Pebble") continued throwing good money after bad. In fact, at Pebble headquarters these days, probably the only happy faces belong to the army of Washington, DC lobbyists and lawyers -- including Pebble's DC-based CEO Tom Collier -- who, in 2015, were the most obvious beneficiaries of what little remains of Pebble's cash on hand.
On the other hand, the unprecedented coalition of opposition to the Pebble Mine just kept right on growing -- in success, numbers and resolve:

• A decision by the Alaska Supreme Court upholding a statewide Bristol Bay salmon protection initiative -- called Bristol Bay Forever -- approved in November 2014 by over 65% of the statewide vote.
• Another Alaska Supreme Court decision, holding that the lack of public notice rendered unconstitutional Pebble's decades-long exploration program.

• A decision by the federal court of appeals affirming the dismissal of Pebble's Clean Water Act challenge to the U.S. Environmental Protection Agency's ("EPA") Pebble Mine review.
• A petition to the Alaska Department of Natural Resources submitted by the Bristol Bay Native Corporation and over a dozen groups, including native tribes and fishing lodges, demanding an investigation of, and remediation plan for, the impacts of Pebble's years of exploration in the headwaters of the Bristol Bay watershed.

photograph © copyright, BOB HALLINEN, 2016

And to top it off, on September 2, in an extraordinary show of support that electrified the community of Dillingham, Alaska -- the Bristol Bay region's largest city, where opposition to the Pebble Mine is virtually unanimous -- the President of the United States stopped by to visit with local salmon fishermen and learn some dance steps from young children assembled at the school gym. This was the first ever visit not only to Dillingham but to Alaska by a sitting U.S. President.

Here are some highlights of 2015, as Pebble's efforts to make friends for its irresponsible scheme -- to enrich its shareholders by impoverishing the people of Bristol Bay -- continue to fail:

• Shareholders of the sole remaining Pebble partner, the small Canadian exploration company Northern Dynasty Minerals, saw the value of their shares continue to fall, from $0.40 a share on January 1, 2015 to $0.30 a share on January 1, 2016 -- down from a high of 21.00 a share in 2011. 
• No progress was made in formally advancing to permitting. Once again, the long-promised permit applications for the Pebble Mine failed to materialize. 
• In January, the Alaska Supreme Court rejected Pebble's legal challenge and upheld the Bristol Bay Forever Initiative ("BBFI"), sponsored by the Anchorage-based Renewable Resources Coalition. The initiative, approved by an overwhelming 65% of the statewide vote in November 2014, adds mining to the list of activities from which salmon must be protected as part of the existing Bristol Bay Fisheries Reserve. BBFI was widely viewed as a statewide referendum on the Pebble Mine project. 
• In federal court, Pebble's lawyers continued to pursue three separate lawsuits under three separate federal statutes, alleging a range of "unfair" and "illegal" actions by EPA in its review of large-scale mining in the Bristol Bay region. But in May, just a week after oral argument, the U.S. Ninth Circuit Court of Appeals affirmed the dismissal of the first of these lawsuits under the federal Clean Water Act. 
• In support of its second lawsuit -- where a temporary injunction remains in place against EPA based on yet unproven claims under the Federal Advisory Committee Act ("FACA") -- Pebble served "third-party subpoenas" on over 60 organizations and individuals in what can fairly be characterized as a "nationwide fishing expedition" for documents (and in some cases depositions). From scientists to religious organizations to Alaskan political leaders to funders to conservation groups (including NRDC) and more -- none of the recipients of these subpoenas was a party to Pebble's FACA lawsuit, but all had in some way commented on, or voiced (or assisted in voicing) support for, EPA's Bristol Bay mining risk assessment. The only certain result of this extraordinary and constitutionally suspect campaign to harass stakeholders that Pebble perceives to be adverse to its interests -- or supportive of EPA -- was a huge cost to Pebble in attorney's fees, as its lawyers initiated and then responded to legal proceedings in courts all over the United States where the subpoenaed parties reside or do business. 
• When, in November, Alaska federal judge Russell Holland upheld the first set of formal "objections" to come before him from -- invalidating ("quashing") the underlying subpoenas -- Pebble quickly retreated, withdrawing virtually every one of the other 60 plus subpoenas served against non-EPA parties, including NRDC. Ultimately, for this extensive effort, Pebble got essentially nothing - except, of course, more bills from its lawyers. 
• On the congressional front, Pebble's DC lobbyists were able to generate some interest on the Hill in undercutting EPA's legal authority to review of the Pebble Mine project -- S 234, HR 896, and HR 4149 -- but ultimately meaningful legislative action was not forthcoming. None of the bills was enacted. 
• In support of this lobbying activity, and hoping to undermine EPA's credibility, Pebble in March hired two Washington, D.C. firms (former Defense Secretary William Cohen's consulting firm and the related law firm DLA Piper) to conduct a self-styled "independent review" of EPA's Bristol Bay process -- an "independent" review initiated and funded by Pebble, the very company whose economic existence depends on stopping EPA and building its mining project. 
• Six months later, in October, Secretary Cohen announced his "independent" findings -- findings that, to no one's surprise, validated Pebble's claim of "unfair" treatment by EPA. Within weeks, the House Committee on Science, Space, and Technology held a hearing at which Secretary Cohen was invited to detail his "independent" critique of the agency, with former President of the Alaska State Senate Rick Halford testifying for the people of Bristol Bay in support of EPA. In response to Cohen's "independent" review, and in anticipation of the House hearing, NRDC released to the committee a detailed and wide-ranging rebuttal to Cohen's findings, which NRDC found to be neither independent nor supported by the factual record. 
• In May, in a lawsuit litigated by Trustees for Alaska on behalf of Nunamta Aulukestai and others, including former Alaska First Lady Bella Hammond, the Alaska Supreme Court held that Pebble's exploration permits, issued without public notice, violated the Alaska Constitution. This major legal victory was followed in November by a petition to the Alaska Department of Natural Resources, filed on behalf of the Bristol Bay Native Corporation and a coalition of Alaska native groups, describing the significant, unremediated harm caused by Pebble's years of exploration in the headwaters of the Bristol Bay watershed. The petition demands an investigation, an accounting of the damage and costs of cleanup, and a remediation plan. 
• Finally, the most enduring events of 2015 will undoubtedly be the tragic confirmation of EPA's finding of catastrophic risk posed by the Pebble Mine -- confirmation provided by two independent mine disasters just months apart in the second half of the year. In the first week of August -- almost one year to the day after the major containment failure at the Mount Polley copper mine in British Columbia in 2014 -- the abandoned Gold King copper mine in southwest Colorado spilled three million gallons of contaminated mine waste into the Animas River, through the heart of the city of Durango and into New Mexico. 
• Three months later, in what Brazilian President Dilma Rousseff has called "perhaps the biggest environmental disaster" in the country's history" -- an "environmental catastrophe," according to Environment Minister Izabella Teizeira -- the Samarco Mineracao SA iron mine (a joint venture of two of the world's largest mining companies, Anglo-Australian BHP Billiton and Brazilian Vale SA) suffered two containment dam failures, spilling 50 million cubic meters of toxic sludge into the Rio Doce, sweeping away an entire town and suffocating all biodiversity along a 500 kilometer stretch of the river, heading into the Atlantic Ocean.

In an industry consistently plagued by such events, 2015's twin disasters graphically demonstrate the folly of Pebble's most fundamental claim -- that, if given a chance, it can engineer a mine posing no threat to a healthy Bristol Bay wild salmon fishery and the communities that depend on it. At the same time, these events confirm both the concerns of the Bristol Bay residents and their communities and the findings of EPA's watershed assessment that the Pebble Mine poses an unacceptable (and potentially "catastrophic") risk to the health, environment, economy, and culture of the Bristol Bay region.

Bobby Andrew

A final note:  2015 should have seen the end of the Pebble Mine project. But last year, sadly, the project outlived one of its most determined antagonists, when Bobby Andrew -- Yup'ik elder, longtime spokesperson for Nunamta Aulukestai, and relentless opponent of the Pebble Mine -- died on May 22 at the age of 72. This was a great loss, and he is deeply missed, particularly by his family, his friends, and his community, but also by those of us in the coalition who had the privilege to know and work with him.

But the determination exemplified by Bobby Andrew lives on in the coalition of Pebble opponents, in the region, the states, and around the world, and the delaying tactics so much the focus of Pebble and its lawyers and lobbyists today -- in selfish disregard of the wellbeing and wishes of the people of Bristol Bay -- are doomed ultimately to fail. NRDC remains committed to do whatever is required to support that effort, for as long as it takes, through whatever legal means necessary, for the sake of our collective future.

2016 is the year, once and for all, to stop the Pebble Mine. Take action -- now.