Chilkat Valley News - Serving Haines and Klukwan, Alaska since 1966

A case before the Ninth Circuit U.S. Court of Appeals could impact Constantine Metal Resources’ Palmer Project. The case relates to Constantine’s permit to conduct mine exploration activities on federal land. Oral arguments were held on Wednesday, June 3.

In December 2017, the Chilkat Indian Village of Klukwan and three environmental conservation groups—Southeast Alaska Conservation Council, Lynn Canal Conservation and Rivers Without Borders—filed a lawsuit against the Bureau of Land Management (BLM) for violating the National Environmental Policy Act (NEPA) in the process of permit approval. NEPA requires federal agencies consider the environmental impacts of any proposed action, including permit approval, before they move forward. The plaintiffs said BLM should have considered the impacts of a fully developed mine before approving Constantine’s permit.

In March 2019, the federal District Court in Alaska ruled in favor of the BLM. The judge said mine exploration doesn’t necessarily lead to mine development, so there was no need for BLM to consider the potential impacts of a fully developed mine when approving an exploration permit. Klukwan and the other plaintiffs appealed.

Questions considered during Wednesday’s oral arguments related to the applicability of NEPA, specifically at what stage in the mining process an environmental assessment is appropriate and whether the BLM’s ability to petition for permit withdrawal constitutes an “action.”

Earthjustice attorney Erin Whalen, representing the plaintiffs, argued that Constantine is approaching the point of no return with respect to mine development.

Under the General Mining Act of 1872, if a site contains a deposit that can be profitably marketed, the citizen or firm that made the discovery secures the “right to mine” regardless of most other uses of the land, so once Constantine makes a profitable discovery, the BLM will lose any authority it previously had to halt mine development.

Whalen cited Conner v. Burford, a court case from the 1980s that said, “the government must complete an (Environmental Impact Statement) before it makes an irretrievable commitment of resources.”

The reason the exploration permit constitutes a commitment of resources is that Constantine is nearing the end of its exploration phase, according to its plan of operation, Whalen said. The company has estimated that, at the end of this phase, it will be prepared to make a decision of whether or not to proceed with mine development.

“The way the (General Mining Act of 1872) functions, by the time the company makes that decision, it will have already done the exploration needed to make a valuable discovery, and by that point the agency has lost its authority,” Whalen said.

Lawyers for the defendants said the exploration phase is too early to assess the environmental impacts of a developed mine.

“The district court was right,” attorney Jim Clark said. “Mine development is not reasonably foreseeable at this point.”

And the impacts of a future mine are difficult to calculate with any precision, Clark said. At this point, the impact assessment would be based on hypotheticals including the location and dimensions of the ore body, the mining method, the type of processing facility, management plans and amount mined per day.

Judge Morgan Christen said the issue appeared to be a question of increments—determining the point at which exploration has “crossed the Rubicon for development of an actual mine.”

Another question considered during oral arguments is whether the absence of an action constitutes an action since NEPA applies to the actions of federal agencies.

Whalen said the BLM is taking action by not petitioning the Secretary of the Interior to withdraw Constantine’s exploration permit. By waiving this right, it is allowing the company to reach the point of profitable discovery.

BLM attorney Ellen Durkee said the plaintiffs are trying to turn the withdrawal process into an action, but it isn’t. Petitioning for a withdrawal is discretionary. The BLM has the ability to make the request, but it’s not required to do so.

The judges questioned whether the withdrawal process constitutes a valid action since BLM lacks the authority to withdraw a permit on its own and must petition a separate entity to complete the action.

Whalen said she doesn’t think the distinction is meaningful and that the BLM is still taking action by waiving its right to request that the Secretary of the Interior withdraw the permit.

The court recessed after hearing oral arguments from both sides. A final ruling in the case is time-sensitive since, under the 1872 mining act, once a discovery of sufficient value is made, Constantine gains property rights to the federal land.