Donlin Mine project in Southwest Alaska facing legal challenges over water impacts

(Yereth Rosen/Alaska Beacon) - State permits allowing water use by the proposed Donlin Gold mine face new legal challenges from opponents of the huge project in Southwest Alaska.
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(Justin Andrew and Gregory Larson work examining and classifying core samples at the Donlin Mine on Aug. 11, 2022. The hill outside the building holds the gold deposit that would be mined if Donlin goes into production. The mine is controversial, and opponents have filed legal challenges to key state permits and authorizations for the project. Photo by Yereth Rosen/Alaska Beacon)

The most recent challenge was lodged on Monday, when two Tribal governments appealed to the state Supreme Court to overturn a lower court decision upholding state-issued permits. Those permits to withdraw water had been approved in April 2022 by the Alaska Department of Natural Resources; they were affirmed on Aug. 31 by Anchorage Superior Court Judge Dani Crosby.

The appeal of the ruling on the DNR permits follows a separate challenge to an Aug. 18 action by the Alaska Department of Environmental Conservation that certified the mine project as meeting state water quality standards. The department’s action renewed what is known as a 401 certificate, named after a section of the federal Clean Water Act. This certificate is required before a project can discharge wastewater, under the act. 

The Orutsararmiut Native Council, one of the Tribal governments involved in the appeal to the Supreme Court, filed a motion in state Superior Court on Sept. 11 that seeks to overturn the certification.

The Donlin Gold project, located about 145 miles northeast of Bethel, would be one of the biggest open-pit gold mines in the world. It has deposits estimated at 33.8 million ounces. Because it is located on Native land with Native-owned mineral rights, revenues would be shared among all Alaska Native corporations. But opponents argue that the mine would damage the ecosystem of the Kuskokwim River, including important salmon runs.

Those potential impacts are the reason for the legal challenges, the plaintiffs said in a statement released by Earthjustice, the environmental law organization representing them.

“The impacts from this proposed open pit mine, which would be the largest pure gold mine in the world, must be taken seriously and considered comprehensively,” Orutsararmiut Native Council Executive Director Brian Henry said in the statement.  “The State has an obligation to protect the Kuskokwim River and its tributaries from possible environmental damage caused by the Donlin Gold Mine. Our very existence and ways of life depend on it.

But state officials believe that agency actions have been proper.

“The state is confident that the Superior Court reached the correct result in affirming that DNR acted appropriately in approving Donlin’s water appropriation applications, and we look forward to defending the decision on appeal to the Supreme Court,” Department of Law spokesperson Patty Sullivan said by email.

As for the 401 certification, then-Commissioner Jason Brune, who issued the renewal, said in his Aug. 18 decision that the objections that Orutsararmiut Native Council raised – which concerned water temperature and young salmon — were outside the scope of the department’s consideration.

The mine permits being challenged are among numerous permits and approvals that have been issued for the project.

In addition to the new actions on the DNR and DEC permits, two other legal challenges are working their way through courts. One, from five Tribes and the environmental group Cook Inletkeeper, is targeting the state right-of-way lease for a pipeline that would supply natural gas to the mine. That case is pending with the state Supreme Court. Another case, with six Tribes as plaintiffs, is pending in federal court and challenging the authorizations granted by the U.S. Army Corps of Engineers and the U.S. Bureau of Land Management. That lawsuit was filed in April in the U.S. District Court in Alaska.