Tribes Appeal Donlin Gold Water Rights Permits
On July 22, six tribes appealed 12 water rights permits granted to Donlin Gold. The Alaska Department of Natural Resources (DNR) issued the permits last month.
The 12 water rights permits allow Donlin to use ground and creek water for a variety of purposes. One will allow the mine to pump out groundwater so it can dig a pit. Another permit allows the mine to pump water to its office and residential facilities. The law firm Earthjustice represents six Yukon-Kuskokwim Delta region tribes in their legal battles against the mine, including the Orutsararmiut Native Council, Chuloonawick Native Village, Tuluksak Native Community, Chevak Native Village, Native Village of Eek, and the Kasigluk Traditional Council.
In its appeal on behalf of the tribes, Earthjustice is focusing on several key factors. One is the lack of tribal consultation at the state level.
“What I've got to do is follow our state processes, and I can't comment much on it because this is part of the subject of the appeal,” said Tom Barrett, the chief of water resources for the state. He approved the permits.
“There is not a government-to-government consultation process in the state permitting process,” said Barrett.
There is, however, a mandated government-to-government consultation process at the federal level. Earthjustice attorneys argue that from a legal standpoint, the tribes need to be explicitly consulted at the state level too. They point to a 2017 order from Alaska’s attorney general that says because of the inherent sovereignty of the tribes, they must be consulted. The order says that the commissioners have to produce a “written plan to address specifics for engagement in consultation and collaboration with Alaska Tribes.”
Earthjustice also writes in its appeal that the water uses allowed by the permits will endanger other subsistence sources. But the DNR water chief said that even though the water section of DNR hasn’t done its own environmental analysis, he feels confident that no harm will be done because other state and federal agencies have done environmental reviews. He said that his branch at DNR doesn’t need to do its own.
Barrett specifically pointed to a state water quality certificate issued by the Alaska Department of Environmental Conservation, but that water quality certificate is alsobeing contested. Earthjustice has taken its appeal to the superior court. If they win, these 12 water rights permits could be rescinded as well.
This is where it gets down to the legal nitty-gritty a little bit. One of the main things that Earthjustice and DNR are at odds about is the review process for the mine. Barrett said that having multiple state departments and federal agencies involved in the review process allows for greater oversight into the mine.
“I think it's good that we are forced by statute to confer with the other agencies. They harbor that expertise,” said Barrett.
But Earthjustice attorney Tom Waldo said that the process is piecemeal.
“In making the decision about whether to allow the mine to use all that public resource of our water, they should be taking into account all those other impacts,” said Waldo.
Waldo said that the mine will lead to devastating environmental consequences in the region because no single agency is looking at the project’s total impacts.
“That includes mercury pollution in an area that already has high levels of mercury. It includes the storage of billions of tons of waste rock. There's the operation of bigger barges; they will cause erosion, destroying smelt spawning habitat,” Waldo said.
Plus, Waldo said, it’s against the law.
“And that's the main issue that our appeal contends,” said Waldo.
Earthjustice pointed to Article 8 in the state constitution and said that the permitting process the way it is, looking at things individually, violates this article. Earthjustice said that Article 8 requires each branch of DNR to look at the proposed project as a whole.
So what happens now that Earthjustice has filed this appeal for the tribes? It goes back to the desk of DNR commissioner Corri Feige, who signed off on the original decision. Waldo expects Feige’s decision next month. If she rules against the six tribes, they could appeal again in the court system. It would first travel to the superior court, and could eventually end up in the Alaska Supreme Court.
Donlin did not comment by deadline for this story, but several weeks ago they did applaud the DNR decision to grant these contested water rights permits. The company said that it appreciated the “thorough review process.”