Circuit court ruling adds more fuel to TU's case against Pebble Mine

Photo courtesy of Fly Out Media

TU this week won an important legal argument that helps the organization’s overall case against the backers of the proposed Pebble Mine, and even though the future of the mine is very much in doubt, this decision helps TU and those hoping to kill it altogether should it once again rear its ugly head.

Here’s the background:

Two years ago, the outlook for Bristol Bay was grim. The permitting process for the proposed Pebble Mine was barreling down the tracks and many believed the Army Corps of Engineers was on the verge of issuing the project’s most important federal permit. In July of 2019, the EPA suddenly and without explanation announced it was withdrawing the 2014 Proposed Determination, which was one of the last hurdles for Pebble to cross before the Corps could grant a permit.  

Trout Unlimited has been deep in the Bristol Bay trenches since the 2000s, but 2019 was the biggest uphill battle we had faced in the fight yet.  

The EPA’s decision to withdraw the Proposed Determination went against the agency’s own science and the will of more than 2 million people who had commented in support of the protections, and appeared driven by politics more than anything else. Trout Unlimited has committed to using whatever tools are necessary to protect Bristol Bay’s world-class fisheries and waters. Accordingly, in the fall of 2019, we took the EPA to court. Read more about TU’s initial lawsuit against the EPA.  

Things got off to a rocky start. Not only did the EPA argue our case should be dismissed, but Alaska Gov. Mike Dunleavy and the state of Alaska intervened in the lawsuit against us, choosing to side with the proposed Pebble Mine instead of standing with Alaskans who seek to protect Bristol Bay and the thousands of American jobs it sustains. In April 2020, the court sided with the EPA, and dismissed our case.  

But we still had tools left in our toolbelt. With gold-star representation from D.C.-based law firm, Sheppard, Mullin, Richter and Hampton LLP, TU filed an appeal that took our case before the Ninth Circuit Court of Appeals for review.   

While we waited for the 9th Circuit to review our claims, we watched the tide turn in the Bristol Bay region. We sent letters and petition signatures from thousands of TU chapters and businesses (and our friends in the outdoor community) to the White House, and had high-profile advocates come out in opposition of the proposed Pebble Mine. 

The Corps and other agencies began to signal skepticism about whether the project could be built without ruining the region’s fisheries and waters, and the Pebble Tapes illuminated what we suspected all along: that Northern Dynasty Minerals, which was behind the mine, was putting forward a fraudulent mine plan and intended to expand the project many times over. By fall, with science overwhelmingly showing the project would spell disaster for the region, Alaska’s Republican members of Congress came out in opposition of the mine. By Thanksgiving, we were celebrating the Corps’ decision to deny the permit.  

After more than a year of review, Thursday, the 9th Circuit Court of Appeals sided with Trout Unlimited and ruled that our case can proceed, giving us a leg up in our fight to secure more durable protections for Bristol Bay’s iconic rivers, streams, wetlands, and fish. 

“Today’s decision is another sigh of relief for Bristol Bay sport fishing business owners, commercial fishermen putting boats in the water, and people of Bristol Bay harvesting their annual subsistence catches.

— Nanci Morris Lyon, local resident and owner of Bear Trail Lodge

Despite today’s ruling, our work is far from over. We won’t be done until we have permanent protections for the Bristol Bay watershed. TU is calling on the EPA to finalize 404(c) protections so the proposed Pebble mine, or other ill-conceived projects like it, cannot come back in the future.  

Tell your elected officials today that you support permanent protections for Bristol Bay. 

Today’s decision reflects what happens when we don’t give up, and use every single tool in our toolbelt. TU has a shop of legal experts, communication specialists, organizers, leaders and nationwide advocates who have come together to advocate alongside the people of Bristol Bay, and we have no intention of stopping our work until we know this place won’t be threatened in the years to come.   

“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.

— Nelli Williams, Alaska director for Trout Unlimited

We want to be clear: the 9th Circuit’s decision today gets us back on track, but our work certainly isn’t done. Every tool in the TU toolbelt will be utilized as we move forward with getting durable protection for Bristol Bay, and we need you to stick with us. Tell your members of Congress today to support long-term protections for Bristol Bay.  

By Marian Giannulis.