A case challenging the pipeline right-of-way permit for Donlin Gold gets its day in court

the Donlin mine
Land near the proposed Donlin gold mine. (Dean Swope/KYUK)

A state court judge heard arguments earlier this month from a group of Yukon-Kuskokwim (Y-K) Delta tribes and environmental groups that are challenging state permits issued for a pipeline that would power the Donlin Gold mine.

Earthjustice is representing the tribes that oppose the Donlin Gold mine, and attorney Olivia Glasscock told an Anchorage judge that the state is violating its own constitution.

Essentially, Glasscock said that when the Alaska Department of Natural Resources (DNR) issued a permit to the company to build more than 200 miles of pipeline across state land, it didn’t consider the effects of the mine project as a whole. She said that the two cannot be considered separately.

“The pipeline is integral to the Donlin mine project. There’s no way to distinguish the two, one will not go forward without the other. And there’s no existing power source in the region. Donlin needs a pipeline to power its activities at the mine site,” Glassock said.

She argued that the way the state issued the pipeline permit was violating part of the state’s constitution that says the state has to develop its resources in a way that’s in the public’s interest.

Superior Court Judge Adolf Zeman challenged that argument.

“Hasn’t that been done in other other contexts for the ultimate use of the land for the Donlin Mine?” he asked.

The proposed Donlin gold mine has gone through an extensive multi-year process of federal review to get an environmental impact statement. Zeman asked Glasscock if the public’s best interest had been considered during that process. Glasscock said that it hadn’t.

“That process is not designed to make a determination about what is in the public interest for Alaska,” Glasscock said.

Glasscock argued that in order to consider Alaskans’ public interest in this case, the state had to consider whether it should use public lands, which are where the pipeline would go, to support projects happening on private lands, which are where the mine would go.

Other lawyers pushed back against that idea. The state’s lawyer said that it would radically change the way that the state does pipeline permitting. And Matthew Singer, a lawyer for Calista, said that’s not the state’s job. Calista is a regional Alaska Native Corporation supporting the mine’s development.

Singer asked the court to consider the argument in another context. For instance, if the Alaska Department of Transportation (DOT) wanted to improve a highway and add an off-ramp.

“And so, for example, if a new burger joint was going to be built near the off ramp, apparently DNR or DOT would need to evaluate ‘well, are burgers good for public health?’ And if they’re not, then maybe we shouldn’t have more hamburger joints. And so we shouldn’t improve the highway,” Singer said.

Lawyers for the state and Donlin pushed back against other parts of Glasscock’s arguments. They said that the groups she represents don’t actually have the standing to appeal the state’s permitting decision. They said that the state analysts who consider pipeline permits aren’t qualified to consider other parts of the project, like mining and ore processing facilities. And they argued that the project has been reviewed extensively at the state and federal leveland doesn’t need this particular review to make it safer.

Arguments like this have been coming up for years. The Donlin project is polarizing, especially on the Y-K Delta where two Alaska Native corporations are working together to develop it and several tribes oppose it.

This particular case over the pipeline right-of-way was filed by four Alaska Native tribal governments, including Orutsararmiut Native Council, Chevak Native Village, Native Village of Eek, Native Village of Kwigillingok, and one conservation group: Cook Inletkeeper.

Most of the mine’s detractors focus on the potential environmental impacts of putting what would be one of the world’s largest gold mines on a tributary of the Kuskokwim River, which is the biggest source of subsistence food for people in the Y-K Delta.

Supporters say that it is an economic boost that the region needs badly, and that it will bring jobs and lower energy costs. It’s not clear when Zeman will put out a final decision on the case; he said that he would do it as soon as he could. But there are other pending cases against the mine and its permits.

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