Yesterday, news broke that the Bristol Bay Defense Alliance filed a lawsuit against the Environmental Protection Agency in the United States District Court for the District of Alaska. The Alliance alleges EPA broke the law, when the Agency withdrew its Proposed Determination this past summer. This Proposed Determination refers to a July 2014 decision, where the EPA found that Bristol Bay “is an area of unparalleled ecological value, boasting salmon diversity and productivity unrivaled anywhere in North America.” Then, on August 30, 2019, the EPA announced that they would be withdrawing that Proposed Determination.
Well, the Bristol Bay Defense Alliance–which is made up of Bristol Bay tribal, commercial fishing, and economic organizations–is suing EPA on the grounds that this decision was arbitrary and capricious, arguing it had no rational basis, was an abuse of discretion, and was unlawful.
In a different lawsuit, today, Trout Unlimited (TU) separately challenges EPA’s decision to withdraw the 2014 Proposed Determination in the United States District Court for the District of Alaska. TU in its court filing argues: “EPA has wholly failed to explain why it cannot keep the Proposed Determination in place as the record develops, why science and data is not necessary here, and how the record evidence can possibly support a withdrawal of the Proposed Determination.” TU (represented pro bono by Sheppard, Mullin, Richter & Hampton LLP) goes on to allege EPA violated both the Administrative Procedure Act (APA) and the Clean Water Act (CWA) in its Withdrawal Decision.
First, TU alleges EPA violated the APA by providing faulty, arbitrary and capricious, and misguided justifications for the withdrawal. The APA governs how federal agencies develop and implement regulations. TU alleges EPA did not adequately explain its decision to withdraw the Proposed Determination given the ample scientific evidence that Pebble Mine would “pose unacceptable adverse effects” and, thus, “rendering the decision arbitrary, capricious, an abuse of discretion, and/or not in accordance with law.”
Second, TU alleges EPA violated the CWA by not acknowledging or considering “that the agency [EPA] had previously found–as recent as July 1, 2019–the Pebble Mine project may have substantial and unacceptable adverse impacts on fisheries resources in the project area watersheds.” Section 404(b) of the CWA prohibits the permitting of any discharge of dredged or fill material if the discharge will cause or contribute to significant degradation of the environment and/or violate water quality standards. EPA had previously made this finding in the Proposed Determination. The Withdrawal Decision is, therefore, arbitrary, capricious, an abuse of discretion, and/or not in accordance with law.
TU is seeking declaratory and injunctive relief against EPA. TU is requesting the Court “enter an order vacating the Withdrawal Decision and directing EPA to either leave the Proposed Determination in place or provide adequate explanation for withdrawal of the Proposed Determination” and ” issue injunctive relief [a stop order] as appropriate to protect Bristol Bay against threats posed by mining and associated activities, causing irreparable harm.”
This is a significant development in the battle over Bristol Bay, and one that TU does not initiate half-heartedly. TU said, “[they] don’t pursue litigation loosely or often. But this is the one place where we will use every tool at our disposal–relentlessly–to protect and stop this mine.”
TU CEO, Chris Wood, had this to say: “sacrificing a place such as Bristol Bay for some gold is a short-sighted fools-errand. We are not a litigious organization, but we and millions of other sportsmen and women will not allow greed to compromise the most important salmon fishery on the planet.” I couldn’t agree more and hope you do too.
The fight for protecting Bristol Bay needs any and all support we, as fishermen, can offer. Donations to protect Bristol Bay can be made here and will be matched by TU! Also, you can take direct action to protect Bristol Bay; follow this link to find out how.
This article was written by Flylords’ Conservation Editor, Will Poston.