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Federal case challenging Donlin mine’s environmental impact statement heads to court

Justin Andrew and Gregory Larson work examining and classifying core samples at the Donlin Mine on Aug. 11, 2022. The hill outside the building holds the gold deposit that would be mined if Donlin goes into production. The mine is controversial, and opponents have filed legal challenges to key state permits and authorizations for the project.
Yereth Rosen
/
Alaska Beacon
Justin Andrew and Gregory Larson work examining and classifying core samples at the Donlin Mine on Aug. 11, 2022. The hill outside the building holds the gold deposit that would be mined if Donlin goes into production. The mine is controversial, and opponents have filed legal challenges to key permits and authorizations for the project.

The environmental review process for proposed mining projects is a lengthy one. But Bethel’s Orutsararmiut Native Council and five other tribes from the region are suing the United States Army Corps of Engineers, saying the federal agency failed to consider important information in its review of the Donlin Gold mine project.

The suit focuses on three main points.

The first, the tribes assert, is that the Army Corps didn’t model a large enough potential spill from the tailings pond that would hold the mine’s waste material. Earthjustice attorney Maile Tavepholjalern represents the six tribes in the case.

“The Army Corps looked at a tailings spill of just 0.5% of the dam capacity,” Tavepholjalern said. “That's even though larger tailings spills have happened, including during the Environmental Impact Statement (EIS) process for this mine – that was when Mount Polley’s dam failed, spilling out more than 30% of its contents.”

Second, the tribes allege the Army Corps of Engineers didn’t look closely enough at the health impacts of a massive mine in the region. They point to an unreleased state report, which outlined the mine’s potential positive and negative impacts including diet and food security, marine traffic, and local economies.

The third point of contention is the impact of Donlin’s barging plan on the Kuskokwim, which could more than double the number of barges on the river during the spring and summer. The tribes argue that the Army Corps didn’t properly consider or mitigate the impact of increased barging on Kuskokwim rainbow smelt – an important subsistence food for communities up and down the river.

“Despite knowing about these impacts, the Army Corps of Engineers relied on ineffective measures to try to prevent those impacts,” Tavepholjalern said. The environmental review takes into account a barge communication plan with subsistence users, a monitoring program for rainbow smelt, and subcommittees to help coordinate communication.

“But none of these things would actually prevent impacts to the smelt that are spawning in the river,” Tavepholjalern said.

The project has both fierce support and opposition, which is reflected in the federal suit.

Since it was originally filed last year on behalf of three tribes, three more have signed on to fight the Army Corps' decision. The suit follows over a decade of increasing opposition in the region, including from former supporters like the region’s tribal consortium, the Association of Village Council Presidents, which represents 56 tribes across the Yukon-Kuskokwim (Y-K) Delta.

On the side of the Army Corps of Engineers, Donlin Gold, the regional Alaska Native corporation Calista Corporation, and the Native Village of Crooked Creek are backing the federal government’s environmental decisions.

Earlier this year, Alaska’s three-person congressional delegation made waves when it filed an amicus brief in the case in support of the Donlin Gold project.

“I borderline feel betrayed,” said Sophie Swope, the executive director of Mother Kuskokwim, a tribal nonprofit consortium formed in 2022 in opposition to the proposed mine. She said it was especially distressing to learn of U.S. House Rep. Mary Peltola’s support for the project.

“I was made to believe that she was very much opposed to Donlin,” Swope said. “And I don't know. For this decision to come out in federal litigation, it was, I don't know, just very much heart-wrenching.”

Swope, who also sits on the board for Bethel’s tribe, said the congressional delegation is hypocritical. The mine site is located near a tributary around 10 miles from the mainstem of the Kuskokwim River. Swope said it doesn’t make sense to support the mine while also seeking answers to the river’s declining salmon runs.

“How are you going to make sure or try to better understand how those fisheries are coming back or why they're not returning, and also allow for their spawning beds to be completely dewatered and disrupted for the rest of time?” Swope asked.

Swope also points to an independent report, commissioned by Mother Kuskokwim earlier this year, which modeled much more wide-ranging and catastrophic impacts than the 0.5% failure used in the Army Corps’ environmental impact statement.

“For a tailings dam that is going to have to last through perpetuity until Jesus returns to Earth and then again, I don't understand how that tailings dam is going to live through our earthquakes, especially when it's sitting on top of an extension of the Denali fault line, which is a very, very active fault line,” Swope said. “That's, I feel like, some of the traditional knowledge that was kind of misunderstood or not, like, taken in during the EIS process.”

However, that new report modeling larger tailings dam failures likely won’t be a part of arguments in the federal case. It’s a type of case called an “administrative record case,” where parties review information used in the decision when it was reached in mid-2018.

The Calista Corporation owns the subsurface rights to the site and has backed the project for decades.

Thom Leonard is Calista’s vice president of corporate affairs. He said Calista and Donlin have spent a lot of time trying to make sure the project can happen safely, including proposing a gas pipeline to cut down on the number of barges in the Kuskokwim and considering the way the tailings dam will be built.

“When you look at some of the disasters – and they are absolutely horrific. It hurts my soul to see what has happened – but they’re very much different things,” Leonard said. “It's like saying all boats are the same, or all fish are the same. And that just simply isn't true. You don't go out with a 6-[inch] mesh to catch minnows, to catch herring. That just simply doesn't work. When you look at Mount Polley, they had a very different dam design.”

Leonard continued: “What we’re using at the Donlin site is a downstream design. So that’s essentially a pyramid. When you look at pictures of Egypt, you don't see very many half-shaped pyramids there. They're full-on diamond-shaped, triangular-shaped. That is the most stable and strongest design that you can have. And that's what's being used at Donlin. So comparing one specific type of dam to another really doesn't equate.”

Leonard said that Calista appreciates the congressional delegation’s support of the Donlin Gold project through the amicus brief in the federal case.

“But when you take a step back,” Leonard said, “What I appreciate – some of the past comments that congressional leaders have made, and others, is: ‘let the permitting process play out, the permits will prove or disprove the safety and the stability of this project.’ And so far all the permits have said, ‘Yes, this can be done in a safe and responsible manner.’”

In a written statement, Donlin Gold spokesperson External Affairs Manager Kristina Woolston echoed that sentiment. She wrote that Donlin Gold takes the federal case seriously and is confident that federal agencies have thoroughly reviewed both the potential impacts of the project and its mitigation plans.

“Since the project’s inception, Donlin Gold has been working in partnership with Alaska Native landowners Calista Corporation and The Kuskokwim Corporation to ensure it will benefit the people of the Yukon-Kuskokwim region in an environmentally responsible way that will not hinder traditional subsistence activities,” Woolston wrote. “Donlin Gold remains committed to providing economic opportunities and hiring as many shareholders as possible to allow residents of the Y-K region to provide for their families and maintain a subsistence way of life.”

Oral argument in the suit is scheduled to begin at 1 p.m. on Monday, June 24 in the federal courthouse in Anchorage.

Sage Smiley is KYUK's news director.