Important Cases in 2015

Jan 23, 2015
Lisa Oakley

Trustees for Alaska is working on important conservation issues and legal cases in 2015. Even with our limited resources, we have a lot on our plate:

  • We will continue our work on state and federal cases;
  • We remain involved in proactive campaigns to address issues in the Arctic, keep coal in the ground to slow climate change, and defend Bristol Bay;
  • We analyze legislative changes and other changes to environmental laws;
  • We evaluate infrastructure and resource extraction projects on the horizon to make sure the law is followed; and
  • We work to address broader environmental policy questions.
AMERICA’S ARCTIC

Arctic National Wildlife Refuge
Trustees for Alaska provides legal support to the Arctic Refuge coalition groups’ efforts to permanently protect the Arctic Refuge. The Arctic Refuge is America’s largest and wildest refuge. Its Coastal Plain provides vital habitat for many birds and mammals. The Porcupine Caribou Herd calves on the Coastal Plain, where the vegetation provides important nourishment to new moms, and the winds from the Beaufort Sea provide the cows and calves relief from intense swarms of insects. The Arctic Refuge is known to the Gwich’in people as “The Sacred Place Where Life Begins.” On the legislative front, our Congressional delegation continues to try and open the Coastal Plain and areas adjacent to the Arctic Refuge to drilling. Until there is permanent protection for the Arctic Refuge, Trustees for Alaska will work to defeat drilling proposals before Congress.

Porcupine Caribou Herd on the Coastal Plain of the Arctic National Wildlife Refuge. USFWS photo.

Porcupine Caribou Herd on the Coastal Plain of the Arctic National Wildlife Refuge. USFWS photo.

On the administrative front, we are involved in the U.S. Fish and Wildlife Service (FWS) revision of the Arctic Refuge Comprehensive Conservation Plan (CCP), which includes a wilderness review of the Coastal Plain. We expect a Wilderness recommendation for the Coastal Plain when the final CCP is released in the winter months of 2015.

We also supported a decision by the Secretary of the Interior to deny a proposal by the State of Alaska to conduct seismic exploration on the Coastal Plain of the Arctic Refuge. Under Section 1002 of ANILCA, Congress authorized a one-time exploration program in the Coastal Plain that was conducted in the 1980s. The State’s 2013 proposal was untimely and the Department of the Interior rejected it. The State has challenged the decision in federal court. Trustees, along with Bessenyey & Van Tuyn, LLC, and the Natural Resources Defense Council, represents nine organizations that are now Defendant-Intervenors in the case. Oral argument was held in January 2015 and we are awaiting a decision.

National Petroleum Reserve-Alaska
The Colville Delta is the largest and most productive river delta in northern Alaska. The Colville Delta is home to endangered species and is vital summer breeding habitat for hundreds of thousands of migratory shorebirds. It is also the subsistence hunting area for the Native Village of Nuiqsut. The Bureau of Land Management promised years ago that oil and gas development in the National Petroleum Reserve-Alaska would remain roadless. Despite this, we have been fighting a permit issued by the U.S. Army Corps of Engineers (Corps) for a road and bridge with a pipeline over the Nigliq Channel of the Colville River since 2009 (the CD-5 project). We achieved partial success in the U.S. District Court that the Corps’ environmental review under the National Environmental Policy Act (NEPA) was inadequate. Further briefing was submitted and we expect a final decision on the NEPA and Clean Water Act issues in the early part of 2015.

CLEAN AIR & WATER

Bristol Bay/Pebble Mine
The Bristol Bay watershed is home to the world’s largest sockeye salmon fishery. In May 2014, Pebble Limited Partnership (PLP) and the State of Alaska challenged the Environmental Protection Agency’s (EPA) decision to review the potential mining of the Pebble deposit under Clean Water Act Section 404(c). That law gives EPA authority to restrict or prohibit the discharge of dredged and fill material into wetlands—which in Bristol Bay contain the ponds, lakes, streams, and rivers that nurture salmon. Trustees for Alaska represents Nunamta Aulukestai as a defendant-intervenor in that case. Many other groups concerned about the future of Bristol Bay also joined as intervenors: Bristol Bay Native Corporation, United Tribes of Bristol Bay, Trout Unlimited, Natural Resources Defense Council and (amicus) Earthworks. We jointly briefed the legal issues. The federal district court dismissed PLP’s case because there is no final agency decision to challenge. PLP has filed an appeal to the U.S. Court of Appeals, which is fully briefed and will be argued this year.

Photo courtesy of Michael Melford

Photo courtesy of Michael Melford

Trustees for Alaska is also fighting the Pebble Project on other fronts:

  1. We represent Nunamta Aulukestai, Ricky Delkittie, Sr., Violet Willson (recently deceased), Bella Hammond, and Victor Fischer in a constitutional challenge to PLP’s decades long exploration and temporary water use activities, and await a decision from the Alaska Supreme Court.
  2. We represent Nunamta Aulukestai as an amicus in a challenge by PLP and the State of Alaska to the Lake and Peninsula Borough ballot initiative (the Save our Salmon (SOS) Initiative) that was passed in 2011 restricting permits for large-scale sulfide mining projects. That case is on appeal to the Alaska Supreme Court, after a superior court judge overturned the SOS Initiative.
  3. We assist Nunamta Aulukestai to evaluate federal and state permits related to the Pebble Project.
  4. We continue to work with the Bristol Bay Coalition to provide legal support and strategy advice on various issues affecting the Pebble project.
CLIMATE CHANGE

Chuitna Coal Strip Mine
PacRim Coal proposes to develop a coal strip mine near the Chuitna River on the west side of Cook Inlet. The Chuitna River is home to all five species of Pacific salmon and is an important river for the Cook Inlet salmon fishery. The first phase of the proposed project includes strip mining approximately 5,000 acres over 25 years. The development plan envisions mining through over 25 miles of salmon-bearing streams, and the destruction of thousands of acres of wetlands.

Photo by R. Maddox

Photo by R. Maddox

Trustees for Alaska is representing several organizations in the proposed mine’s second administrative permitting process (Trustees for Alaska challenged the first permit and it was invalidated by the Alaska Supreme Court in 1992.) We have pressured the Alaska Department of Natural Resources (DNR) to designate the lands around the Chuitna River and its tributaries as unsuitable for surface coal mining. DNR did not designate the lands unsuitable; however, the scientific information provided in that process demonstrated the need for more environmental information, which is being required from PacRim. Federal agencies are reviewing PacRim proposals and preparing a Draft Environmental Impact Statement (EIS) which may be released in the summer of 2015. Trustees will evaluate and comment on the EIS and the mining applications.

We also are continuing to represent the Chuitna Citizen’s Coalition in an adjudication to secure instream flow reservations to protect fish in the area of the proposed mine. This adjudication is the direct result of an Order from the Alaska Superior Court that DNR had violated the law in ignoring Chuitna Citizen’s application for water.

Matanuska Coal Fields
The Matanuska Valley is an historical coal mining area that has since given way to residential development and strong communities. Three companies are attempting to re-establish coal mining in the Mat Valley: (1) Usibelli Coal Mining Co., the only active coal mining company in Alaska, is trying to move forward on the Wishbone Hill coal leases; (2) Ranger Alaska, a subsidiary of Black Range Minerals, is maintaining the permit for the Jonesville Coal Mine; and (3) Riversdale has purchased leases in Chickaloon but has put its exploration activities on hold. Trustees for Alaska represents members of the Mat Valley Coalition who oppose coal mining next door to their communities. We will continue to monitor and oppose exploration, mining, air, and water permits for these projects. The Coalition has petitioned the federal Office of Surface Mining to de-delegate the Alaska Coal Program or take enforcement actions because DNR has not followed the requirements of the federal coal program.

Seward Coal Loading Facility
Trustees for Alaska represents Alaska Community Action on Toxics and Sierra Club in a Clean Water Act lawsuit against Aurora Energy and the Alaska Railroad, the facility operator and owner, prosecuting the unpermitted discharges of coal into Resurrection Bay. Coal from the facility has long been a problem for Seward residents. While the U.S. District Court ruled that the storm water permit for the facility shielded it from having to obtain an individual permit for the coal discharges, the Ninth Circuit overturned that decision. The facility is now required to obtain a permit and implement required technology to address the discharges. The Alaska Department of Environmental Conservation has issued a compliance order that was negotiated with the discharger, allowing vessels to be loaded during the months-long process of obtaining a permit. Work on this case continues as we help the organizations work for a permit that protects Resurrection Bay and the community.

MARINE ECOSYSTEMS

Cook Inlet Oil and Gas

Cook Inlet with an oil rig and Mount Spurr in the background. Photo by DCSL, Creative Commons/Flickr.

Cook Inlet with an oil rig and Mount Spurr in the background. Photo by DCSL, Creative Commons/Flickr.

Oil and gas development in Cook Inlet started in the 1960s and many thought the field was waning. However, new small operators in Cook Inlet are using jack-up rigs and have reinvigorated and industry that has been dumping more and more toxic pollution into Cook Inlet. Potential impacts to the endangered Cook Inlet beluga whale, the lack of best available technology for blowout preventers (demonstrated by the Gulf of Mexico Deepwater Horizon blowout), and lax enforcement in Cook Inlet, are just three of the reasons Trustees for Alaska is monitoring these operations. A new operator has also taken over the older facilities, and is attempting to restart the Drift River Terminal at the base of Mount Redoubt, an active volcano. In addition, the State and EPA are expected to reissue the Clean Water Act general permit for the oil and gas production facilities in Cook Inlet in the coming year. We will continue to work to ensure water quality is improved and protected.

WILD LANDS & WILDLIFE

Izembek National Wildlife Refuge

Black brandt at Izembek Lagoon.  USFWS Photo

Black brandt at Izembek Lagoon. USFWS Photo

The State’s proposed land exchange would trade internationally significant wetlands for migrating waterfowl and move designated Wilderness out of protected status in order to build an access road from King Cove to Cold Bay. The Secretary of the Interior, relying on the studies and recommendation of the U.S. Fish and Wildlife Service, rejected the exchange and the road in December 2013. The State and a coalition from King Cove sued the Secretary for that decision, but the Federal Court dismissed most of the claims against the Secretary’s decision to protect Izembek National Wildlife Refuge’s wilderness and internationally recognized wildlife habitat. We are representing a coalition of eight conservation groups as intervenors in the case.

LEGISLATURE & STATE GOVERNANCE

Last session, the Department of Natural Resources attempted to rewrite natural resource laws in Alaska. The Silencing Alaskans Act died last year following widespread opposition around the state. This year, we will be on the lookout for any bills that propose similar changes that affect Alaska’s environmental laws and citizens’ rights to participate in the public process.

 

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