A federal court in Anchorage held arguments yesterday over the proposed Pebble mine. The US District Judge Sharon Gleason presiding over the hearing stated she will try to make a final determination in the near term. Litigants are hopeful that this ruling will be the final say in a 16 year long process over the proposed mine’s future.
Plaintiffs of the case, including Pebble Limited Partnership and Northern Dynasty Minerals, argued that the U.S. Environmental Protection Agency has limited authority to prevent the development of the mine. Pebble’s attorney argued alongside the State of Alaska, Iliamna Native Limited, and Alaska Peninsula Corporation. Defendants of the case were the Department of Justice on behalf of the EPA, as well as a representative for 23 intervener defendant groups. These groups include several entities from Bristol Bay like Bristol Bay Regional Seafood Development Association, Bristol Bay Economic Development Corporation, and Commercial Fishermen for Bristol Bay.
Hearings from both the plaintiffs and defendants dove deep into administrative law, presenting arguments over salmon genetics, US waterways, the definition of a fishery, and the difference between the words “likely” and “will” when it comes to having adverse effects.
Daniel Cheyette was present in the courtroom yesterday. He’s the Senior Vice President for legal and land at the Bristol Bay Native Corporation, one of the 23 intervenor defendants. KDLG spoke with Cheyette to learn what occurred in the courtroom, and what a ruling might mean for the Bristol Bay Fishery.
This interview has been edited for length and clarity.
KDLG: Thanks so much for taking the time to talk, Daniel. You were in the courtroom, what was the scene in there?
Cheyette: Yeah, really impressed with the judge, Judge Gleason. She was extremely well prepared. It was clear she had read and was familiar with the briefing and the record, and I think she asked a lot of good questions. I was also impressed that at the close she said she would endeavor to get the parties an answer in the near term. That would be impressive, but the people of Bristol Bay have been invested in this process for decades, so it's really nice to see that there's a light at the end of the tunnel, and that we should get a ruling from the court here in the near future.
KDLG: Can you briefly explain what today's oral arguments were about?
Cheyette: Yeah, so the Pebble Limited Partnership, the state of Alaska, and INL, and APC had each filed complaints in federal district court presenting their arguments against what the Corps of Engineers and EPA had done. Today's oral argument focused specifically on the EPA and its final determination, and they each raised different claims for why they thought it was improper. We, and of course, DOJ, on behalf of EPA, dispute all of their claims and believe they're wrong, and believe that the EPA, and in issuing its final determination, relied on a voluminous administrative record that contained lots of good science and firm basis for it taking action to protect the region from the risk posed by the proposed Pebble mine.
KDLG: What were some of the main arguments that were in there?
Cheyette: Well, like any administrative challenge, which is at its heart what this is, there were claims that there wasn't a satisfactory evidentiary record for the EPA to do what it did. Of course, again, we believe that was wrong, that there was. There are claims that the EPA, in one way or another, violated the Clean Water Act, that it took action beyond the powers granted by Congress that violated the Statehood Act, or the Cook Inlet Land Exchange, or even the Constitution of the United States, again all legal claims that we and the DOJ, I believe, very capably disputed.
KDLG: One of the things that was talked about most was the 404(c) statute of the Clean Water Act. Is there precedent for how this 404(c) statute has played out in a court before?
Cheyette: Sure, I mean, that's the main authority under the Clean Water Act that we're talking about, that gives the EPA the right to say we believe that this project cannot discharge into waters of the United States safely, that it poses too great a risk to the fisheries or to fish habitat or environment, what have you. So we are prohibiting those discharges. It has only been invoked 13 other times in the history of the Clean Water Act, which extends back something close to 50 years. So it's not used a lot, but it has been used before, and this was the 14th time, and there's certainly court cases surrounding those prior uses of it. You heard, I believe, was the state's attorney referred to Mingo Logan in his argument, which is a Supreme Court case that was a dispute about EPA’s use of its 404(c) authority, and that was upheld, just as we expect the EPA use of its 404(c) authority to be upheld here.
KDLG: The word deference was used a lot in the hearings, and two years ago there was the Supreme Court case that kind of overturned the precedent of Chevron deference, which required courts to defer to an agency’s interpretation of the law. What did deference have to do with the arguments we heard?
Cheyette: Yeah, they made reference to the case Loper Bright, and that was the Supreme Court case that I wouldn't say overturned Chevron, but certainly changed its interpretation and its reach, but regardless, even today there is still a certain amount of deference that an agency is given by the courts when they are exercising their authority in very specific technical areas that are within their areas of expertise, right. You don't want a judge basically second guessing an agency that is likely filled with a bunch of specialists in that area. You don't need a judge or a lawyer trying to second guess what they do, so that those kind of decisions get deference, and so that is a when they talk about whether what the EPA did, for example, was arbitrary or capricious, that's another way of saying, you know, did they act within the deference that the decisions they make are usually given by the courts.
KDLG: How did today's hearing fit into the 16 year long Pebble saga?
Cheyette: Well, it is certainly my hope that it is the kind of the final act, if you will, and that we will get a decision from the court, and it will uphold the EPA action, and that will be the final word on it, you know, but we will see, and you know the appeals could follow, but we're hoping that this is the capstone.
KDLG: So, Judge Gleason will make a final determination, and then what are the options from there based on her determination?
Cheyette: I mean, I don't think it's like a yes or no. She could just say everything EPA did was just fine, Pebble State, you know, INL, APC, your, your claims are denied, right? That would obviously be complete victory vindication for EPA and the defendant interveners. That would be the best possible outcome. As I said, they made lots of different claims. She could, she could find that there was, she could find for the plaintiffs on, on any one or more of them, and depending on what that is, it could mean different things for actually what the EPA did. There is a possibility that she rules in their favor and just vacates the EPA found determination, but I think it is more likely that if she were inclined to agree with any of their arguments that there could be a remand for further action by the EPA, and that just kind of then starts the whole administrative process again. I mean, not over, but it adds additional layers of administrative process to the whole 16 year process, but I will say, regardless of what happens, if there is more process, if this must go on. The people of Bristol Bay have been a part of this and fought this project from day one, and they will continue to do so. You know the folks that are concerned about what this might mine could do to the region and its fisheries and its subsistence and culture, they're not going away, and we will continue to be as invested as we have always been.
KDLG: Thank you so much Daniel.
