Active: Federal lawsuit challenges agency’s unlawful land use veto

Life is hard for Alaska Native villagers in southwest Alaska. Worse, the land right under their feet holds as much as 11 billion tons of copper, gold, and molybdenum ore that they cannot touch because a federal agency used veto power it does not have. Left unchecked, this illegal veto will threaten the villages’ long-term survival.

Mining companies have long been interested in developing southwestern Alaska’s Pebble deposit, with enthusiastic support from Alaska Natives who see a mine as an economic lifeline for their communities and heritage.

In the early 2000s, a Canadian company called Northern Dynasty formed the Pebble Limited Partnership (PLP) and staked claims on six square miles of state-owned land. Two Alaska Native Village Corporations with landholdings near the prospect supported PLP efforts and in return, PLP assisted the Village Corporations to develop environmental, logistics, camp services, medical and safety services, storage facility services and much more over the past 20 years.

The two Village Corporations, Iliamna Natives Limited and Alaska Peninsula Corporation, have been working with PLP ever since. Established following the 1971 Alaska Native Claims Settlement Act, these corporations represent the interests of more than 1,000 Alaska Native shareholders who live in the region and otherwise have ancestral roots dating back centuries in the region.

Iliamna’s shareholders have made millions of dollars so far, providing support services, and at one point even became the area’s largest employer. In 2019, Iliamna signed an agreement allowing PLP to use their land as a transportation route between the mine and a proposed port.

Alaska Peninsula’s work with PLP, including providing scientific and professional help and supplying materials for the mine’s transportation corridor, has secured preferred contractor status and toll revenue for their shareholders. In fact, because of the mining activities, Alaska Peninsula was able to pay benefits to its shareholders in 2017 for the first time in years.

Because the proposed mine project would take place partly in waters regulated by the Clean Water Act, PLP sought a permit from the U.S. Army Corps of Engineers to build and operate the mine. Before a final decision could be made, the EPA vetoed the mine permit, saying the Pebble mine—or any mine in the area—would have an unacceptable adverse effect on salmon fisheries, never mind that the EPA’s conclusion completely contradicted the Army Corps’ own findings.

The veto crushed hopes of Alaska Native shareholders of APC and Iliamna, undercutting their ability to provide jobs and social services and threatening the long-term viability of their villages. For the Iliamna and Alaska Peninsula village corporations, the Pebble mine development promises responsible economic development and empowers Alaska Natives to thrive while preserving their traditional ways of life.

The agency points to the Clean Water Act’s Section 404(c) as the source of its power and a blank check to veto projects it doesn’t like. Specifically, Section 404(c) allows the EPA to decide what counts as “adverse” or “unacceptable” effects without clearly defining these terms and control the existence of projects that could drastically improve lives and livelihoods.

However, Congress cannot give away unchecked power without clear direction on how to use it. Even if Congress meant to give the EPA veto power, it must prescribe how the EPA is to use it. Any violation of that principle means that unelected agencies, rather than accountable lawmakers in Congress, can make laws governing our lives and livelihoods.

The significance of this veto power cannot be understated. The agency prioritized disputed ecological concerns over the potential for hundreds or even billions of dollars in economic development for southwest Alaska and its people.

If unelected bureaucrats in Washington, DC, can stretch their powers to make laws that cripple one mine project in America’s last frontier, they can do the same thing to anyone, on any issue, anywhere in the country.

Iliamna and Alaska Peninsula are fighting back to rein in the EPA’s overreach so they can promote Alaska Natives’ self-determination and socio-economic development while protecting their Native culture and traditions through agreements with the mine operators. Represented at no charge by Pacific Legal Foundation, they are challenging the EPA’s so-called veto authority as a violation of the Constitution’s separation of powers.

What’s At Stake?

  • Only Congress makes law, and Congress may not delegate that power to the Environmental Protection Agency or other agency.
  • Federal agencies cannot ignore the Constitution’s separation of powers to carry out their preferred regulatory objectives. The EPA is running roughshod over Alaska Native communities in blind pursuit of the Biden administration’s agenda to rope off as much land from useful development as possible.

Case Timeline

June 24, 2024
United States District Court for the District of Alaska