Tribes Appeal Donlin Gold Water Rights Permits

By Olivia Ebertz | Jul 30, 2021 | KYUK

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 also being 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.”

What Judge’s Donlin Water Certificate Recommendation Could Mean For Proposed Mine

By Anna Rose MacArthur & Krysti Shallenberger, Alaska’s Energy Desk Apr 14, 2021

On April 12, an administrative law judge issued a recommendation that the Alaska Department of Environmental Conservation rescind a state water quality certificate that was issued to the Donlin Gold mine in 2018. The certificate is required under the Clean Water Act. Here’s what rescinding the certificate could mean for the proposed mine, and how the parties involved in the decision have responded to the judge’s recommendation.

The judge’s proposed decision throws doubt over the future of the Army Corps of Engineers’ permit that Donlin obtained back in August 2018.

The state water quality certificate is a big one. It’s required under Section 401 of the Clean Water Act. Under Section 401, states have legal authority to review an application for a project that requires a federal permit. James Rypkema, a program manager at ADEC’s Division of Water, told KYUK in 2018 that the U.S. Army Corps of Engineers has to permit the project since it impacts 3,500 acres of wetlands. Without the state water quality certificate, Donlin could not receive its federal permit from the Corps.

The Orutsararmiut Native Council in Bethel is the organization that challenged the certificate. The tribe contended that the state cannot guarantee that the mining operations will maintain Alaska’s water quality standards for mercury levels, water temperature, and fish habitat. Administrative Law Judge Kent Sullivan’s proposed decision agrees with the tribe.

In a press release, ONC Executive Director Mark Springer celebrated the judge’s recommendation. Springer wrote: “This decision by Judge Sullivan demonstrates that the concerns of the People of the Kuskokwim River surrounding development of the Donlin Prospect were, and are legitimate.” Springer claimed that the state “erred in their hasty issuance” of the water certificate, and he urged ADEC Commissioner Jason Brune “to take to heart the conclusions” in the judge’s recommendation and “ensure protection of salmon streams.”

ADEC spokesperson Laura Achee would not respond to KYUK’s questions on the judge’s proposed decision or what it means for Donlin Gold. In 2018, ADEC’s Rypkema told KYUK that it is rare for any permit to get denied. 

In a statement, Donlin Gold spokesperson Kristina Woolston wrote that the company “strongly disagrees” with the judge’s proposed decision, and that the decision “does not affect Donlin Gold’s commitment to the Project’s Alaska Native landowners, The Kuskokwim Corporation and Calista Corporation, to build an environmentally responsible mine that enriches the lives of those in the Yukon-Kuskokwim region.”

ADEC’s Achee said that under state law, the department’s commissioner has 45 days from the release of the judge’s recommendation to issue a decision, which would be a deadline of May 27.

Editor’s note: The original headline of the story was “What Judge’s Donlin Water Certificate Recommendation Could Mean For The Mine”.

Judge Recommends State Not Uphold Donlin Mine Water Certificate

By Anna Rose MacArthur Apr 13, 2021

On April 12, an Administrative Law judge issued a recommendation that the Alaska Department of Environmental Conservation not uphold a water certificate issued to the Donlin Gold mine.

The Alaska Commissioner of Environmental Conservation will make the final decision on the matter. 

The state initially issued what’s called a “certificate of reasonable assurance” to Donlin in August 2018. It said that the state had reasonable assurance that Donlin’s operations would comply with state water standards. It’s attached to one of the biggest state permits Donlin needs before it can begin constructing and operating its gold mine. Donlin Gold needs more than 100 permits for its operations. 

The Orutsararmiut Native Council challenged that certificate, contending that the state cannot have “reasonable assurance” that the mine won’t violate these standards. Specifically, the tribe said that the state cannot guarantee that the mining operations will maintain Alaska’s environmental standards for mercury levels, water temperature, and fish habitat.

Administrative Law Judge Kent Sullivan agreed. “Salmon and salmon habitat in a large segment of Crooked Creek will be significantly and detrimentally impacted by the project,” Sullivan wrote in his proposed decision.

The three parties involved in the case, Orutsararmiut Native Council, Alaska Department of Environmental Conservation, and Donlin Gold, have until May 5 to respond to the judge’s recommendation.

Correction: The first reference to the judge in the story has been corrected to say “Administrative Law judge.” A previous version of this story incorrectly labeled the judge as a “state judge.”

Bethel ONC Tribe Protests 15-Day Comment Period On Donlin Gold Water Permits

By Krysti Shallenberger, Alaska’s Energy Desk Feb 19, 2021

The Alaska Department of Natural Resources gave the public 15 days to comment on 12 water right permits for the proposed Donlin Gold mine in December. The Orutsararmiut Native Council claims that wasn’t enough time, especially as villages locked down to slow the spread of the coronavirus, and taking into account limited access to the internet in rural Alaska.

Bethel resident and Orutsararmiut Native Council member Beverly Hoffman has protested the proposed Donlin Gold mine for years, and is frustrated that the Alaska Department of Natural Resources only gave tribes 15 days to comment on a dozen water right permits for the mine. The comment deadline ended December 15, 2020. According to Hoffman, there are a lot of barriers to getting public comment in the Yukon-Kuskokwim Delta.

“Communities are in lockdown; they’re not meeting,” Hoffman said. “They don’t have internet data to hold big Zoom meetings.”

Hoffman is also worried that Donlin Gold’s plans for those streams will disrupt people’s way of life in the Y-K Delta. The Donlin Gold mine would be one of the biggest in the world, if completed, and will require a lot of water to treat the mercury and other toxins released during its operations. These 12 water right permits would give Donlin Gold permission to draw down the water of 12 streams for its operations.

The Orutsararmiut Native Council’s letter to DNR echoed Hoffman’s concerns.

“First, the Department must not proceed with approving these water rights applications without providing the public the opportunity to review and comment on those applications. Notwithstanding the inadequate information provided, we ask that the Department deny these applications pursuant to Alaska Statute 46.15.080 to 46.15.090 because they are not in the public interest and the existing uses of the waters that would be appropriated by these applications are far more important,” the letter said.

Both Hoffman and the letter written by ONC said that the water permits further endanger the region’s food security. 

“For them to be able to get this water permit that jeopardizes that food security in the manner that it’s happening, it’s so wrong and dangerous. Dangerous to the people that choose to live a way of life out here,” Hoffman said.

The Y-K  Delta is one of the most food insecure regions in the country; many of its residents cannot access three meals a day. Roughly 22% to 24% of Y-K Delta households are food insecure, according to Feeding America, a national nonprofit focusing on hunger relief. The organization reports that 21% of households in the Bethel Census Area are food insecure. In the Kusilvak Census Area, which includes villages along the lower Yukon River and Bering Sea coast, those rates are even higher, ranging from 25% to 29%. This makes it the second most food insecure region in the nation, just after Jefferson County, Mississippi. Feeding America reports that one in four Alaska Native households cannot access three meals per day, a rate double that of white households.

Most Y-K Delta residents depend on subsistence foods for the majority of their diet. The Kuskokwim River is the primary food source, and the Donlin Gold mine site would sit near one of its tributaries. The company has emphasized its commitment to building the mine as safely as possible.

A spokesperson for the state, Dan Saddler, said that the process was legal; state statute allows a 15-day comment period. The state can extend that deadline period, but Saddler said that they haven’t gotten a request to do that from any of the tribes or organizations who commented, and that the permits have yet to be approved.

CORRECTION: An earlier version of the article incorrectly said Donlin Gold was granted the 12 water right permits in December. That is incorrect; the public comment for the permits was in December. The article and headline have been updated to include a letter and comment from the Orutsararmiut Native Council that said that DNR did not give adequate time or information for public comment.

Response to Rep. Zulkosky’s opposition to the Donlin Gold Mine

by Dave Cannon | November 4th, 2020

This letter to the editor is in regards to Representative Zulkosky’s recent announcement that she opposes the Donlin Gold project. In her statement, she states, “Projects like this must be done with the advice, consent, and for the benefit of the Indigenous people of our region—who stand to lose the most under a worst case-scenario.

Unfortunately, the worst-case scenario assessment for a tailings dam failure was not evaluated by the Corps of Engineers (COE) in the Final Environmental Impact Statement (EIS), even though some individuals and tribes requested one be done.

Here’s an excerpt from a scoping letter dated March of 2013 by then Donlin Gold General Manager, Stan Foo: “Some participants at the scoping meetings stated that the EIS needs to address catastrophic failures such as pipeline breaks or dam failures. In considering the extent to which issues such as these should be addressed in the EIS, if at all, we encourage the Corps to give due consideration to those impacts which are foreseeable and essential to the consideration of alternatives versus those which are remote and highly speculative … we know of no other EISs that evaluated impacts due to a tailings dam failure, and we think that scenario should not be evaluated in the Donlin Gold EIS.”

Although two catastrophic tailings dam failures (i.e., one in British Columbia & one in Brazil that killed seventeen people) occurred within three years of when the above letter was written, the COE went along with Donlin’s request.

Representative Zulkosky also stated: “I have heard overwhelmingly from YK Delta residents, Tribes, and non-profit organizations about how the public comment and permitting process has been overly burdensome, ill-timed, and has likely suppressed necessary and meaningful consultation and engagement on the project.”

I have followed, or have been involved in the EIS process since the beginning, and agree that the process failed the people of the Kuskokwim. Mine proponents tout how many public meetings were held throughout the region and opportunities to comment, but it truly was time-consuming and burdensome to most residents. Being a biologist, and having dealt with the EIS process over the years, even I struggled to keep abreast of it all.

The Draft EIS contained over 7,000 pages, and was so technical and cumbersome that residents – and scientific experts – asked for additional time to digest everything. The six-year process was so onerous that it was only toward the end of the process that several lower and upper river villages realized what impacts the mine and associated activities could have. When they requested Government to Government relations with the COE, they were refused.

The Final Environmental Impact Statement was over 10,000 pages long, and I specifically asked the COE shortly after its release if anyone was going to come out to the region and explain what was in it … and their short answer was, “No”.

It’s not only local residents that feel that the EIS process was inadequate to fully address our concerns regarding the mine’s environmental consequences and potential impacts to important subsistence resources.

Dr. Ben Teschner, in his PhD dissertation that focused on the Donlin Gold EIS process titled Predicting Mining Company-Stakeholder Conflict & Incorporating Social Conditions into Mining Project Valuation, substantiated residents’ concerns with the process with the following excerpts:

“This attempt at improved stakeholder involvement had some successes, but it also highlights divergent goals within NEPA (i.e., National Environmental Policy Act) and a lack of trust between local stakeholders and regulators. Tribes were able to push for examination and disclosure of some of their environmental concerns but remain frustrated with NEPA’s limitations with respect to transform findings into enforceable protections.”

“Donlin’s EIS involved local tribal governments as cooperating agencies, a stakeholder engagement approach that was unique and potentially innovative. Yet, many stakeholders felt that these efforts were insufficient. Nearly all local stakeholders interviewed for this study expressed frustration with the NEPA process and the regulators who implemented it. They reported that they felt patronized by a bureaucratic process that focused on fitting stakeholder concerns into technical and scientific disciplines for analysis by outside experts. Many local stakeholders reported feeling unrepresented in the EIS and that stakeholders’ local knowledge was undervalued by regulators during the process.”

“The quantity of environmental, social, and public health information that regulators gathered on Donlin resulted in a Final EIS document that was over 10,000 pages. And yet, stakeholders expressed distrust and strong frustration with the EIS process and the regulators who implemented it regardless of whether those stakeholders supported or opposed the development of the mine.”

“Compared to the Draft EIS, the page count of the Final EIS ballooned to double the size — over 10,000 pages in total. The Draft EIS that had been released six months earlier and was the basis for the final round of public comment meetings. Some stakeholders expressed anger that they did not get to comment on the Final EIS saying that they were forced to comment on incomplete information.”

Dr. Teschner concluded: “The case study presented here adds to the body of work calling for improvement in how regulators manage stakeholder participation in the NEPA process, reaching the important conclusion that increasing the quantity of public comment and/or scientific study is insufficient to address many stakeholders’ concerns around how the law treats them and the information they contribute.”

“In the case of Donlin, the Army Corps noted that many of the impacts that the Donlin EIS disclosed, including some of those championed by cooperating agency tribes, did not fall under federal permitting authority. These impacts were left unresolved by the process.”

“This study adds to the literature on the power imbalances and politicization of information that underpins technocratic approaches to impact assessment. It concludes that simply augmenting the quantity of scientific study is unlikely to achieve NEPA’s goal of stakeholder involvement in the impact assessment process.”

Unfortunately, with all of the EIS’s drawbacks, the permitting process is chugging along. Many permits have been granted by the State, even though groups like the Orutsararmiut Native Council have challenged some of them, including the State’s inadequate assessment of water quality certifications and the impacts on aquatic resources from the gas pipeline coming from Cook Inlet (comments on that can be submitted to the Department of Natural Resources at http://dnr.alaska.gov/shared/emailforms/emailcontact.cfm?send=jeff.bruno).

Regarding the immense tailings dam that is proposed, the State still has to approve its design, and residents should demand a transparent process with that considering the potential impacts to irreplaceable subsistence resources (e.g., salmon and other fishes) should a failure occur.

Dave Cannon is a fisheries biologist living in Aniak.