A lawsuit filed by the Orutsararmiut Native Council has led to a judgment that invalidates a key permit for what could be one of the largest gold mines in the world: Donlin Gold in western Alaska.
State Judge Z. Kent Sullivan ruled Monday that the Alaska Department of Environmental Conservation erred when it issued a clean water certificate to Donlin Gold. He found in favor of the tribe’s argument the project wouldn’t meet state water quality standards.
In his 78-page decision, Sullivan recommended the state of Alaska rescind the certificate. Since state certification is required for a Clean Water Act Section 404 permit from the U.S. Army Corps of Engineers, the decertification would invalidate the key federal permit as well. The state agency has 45 days to decide whether to follow or to contest the judge's recommendation.
The proposed mine would be about 280 miles northwest of Anchorage on Crooked Creek, a tributary of the Kuskokwim River, upriver from 13 predominantly Alaska Native communities. The Kuskokwim is 700 miles long, the ninth largest river in the United States in volume and seventeenth largest by drainage area.
The proposed mine has tribes, villages and for-profit Alaska Native corporations at odds with each other.
The tribe says the project would harm the waterways and damage the critically important salmon fisheries, a mainstay of locals' diets.
For shareholders in the two Alaska Native corporations that own the land and mineral rights at the proposed mining site, the mine offers potentially rich dividends, scholarships, training, jobs and other benefits. It also could bring promised infrastructure that would reduce energy costs and bring faster internet.
Orutsararmiut, also known as ONC, is a Yup’ik tribe based in Bethel, a regional hub community on the Kuskokwim River.
Native Council Executive Director Mark Springer said in a prepared statement that the judge’s decision shows the concerns of the people of the Kuskokwim “were and are legitimate.”
“Sovereign tribal governments have a responsibility for the health and welfare of their citizens, lands, and self-governance,” he said. “There is nothing more important to Kuskokwim communities and their people than maintaining the subsistence way of life that has sustained them through millennia. This way of life depends integrally upon the salmon and smelt of the Kuskokwim River and its tributaries.
“The Donlin prospect, which is located upstream from these communities, if developed, would be a direct threat to water quality, to the many fish that traverse these waters, and to the Kuskokwim way of life," Springer said.
Discharge of mercury into the water and factors that would contribute to increased water temperatures are cited in the project's final environmental impact statement, the judge noted.
“When the area of impact from the project is scrutinized, it is obvious that the overwhelming majority of the salmon productivity from that segment of the main stem of Crooked Creek will be eliminated," he wrote in his decision. "In the absence of mitigation or other compensatory measures, it cannot be said under these circumstances that the protection of existing uses is reasonably certain to occur.”
Sullivan concludes by saying the certificate is unsupported, and “as a result the division’s certificate is hereby rescinded."
He instructs the division to notify the Army Corps of Engineers that the project is no longer certified by the state of Alaska under section 401 of the Clean Water Act.
Donlin Gold responded to the judge's ruling in a prepared statement.
“While we strongly disagree with the appeal officer’s view, it is his opinion and it will be up to the department Commissioner to render the final decision,” said Kristina Woolston, external affairs manager of Donlin Gold.
“We appreciate the thorough and extensive work undertaken by the Division since 2018 in developing a technically and legally robust certification," Woolston said. "OAH’s decision does not affect Donlin Gold’s commitment to the Project’s Alaska Native landowner’s, The Kuskokwim Corporation and Calista Corporation, to build an environmentally responsible mine that enriches the lives of those in the Yukon-Kuskokwim region.”
The gold reserves are in and under lands owned by the two Alaska Native corporations created under the Alaska Native Claims Settlement Act of 1971. The regional Calista corporation owns the surface estate, and The Kuskokwim Corporation, also known as TKC, owns the subsurface estate.
In exchange for permission to build on and mine Native lands, Donlin agreed to make direct payments at project milestones, and provide avenues for “a coordinated and consultative approach" on project planning, reclamation, and subsistence harvesting.
Other benefits include Calista and TKC preference for contracts, scholarships, hiring, and a training facility in the village of Aniak.
In addition, Krysti Shallenberger of Alaska's Energy Desk reported, "In any village in the Yukon-Kuskokwim Delta, and in Bethel, you see Donlin Gold’s logo in the schools: on sweatshirts and coats and hats. Donlin Gold has paid to remove waste from villages. It has rebuilt churches, and purchased scoreboards for village schools."
However, Donlin Gold has lost the support of many villages that once were neutral or supported the project, with 35 of 56 tribes in the region opposing the mine, Shallenberger reported in 2019.
Plans for the project include construction of a power plant, a water treatment plant, roads, housing, two ports, a natural gas pipeline and an airstrip.
Mine developers say the Donlin Gold project would provide thousands of jobs during a three-to-four year construction phase, and a variety of jobs throughout its estimated operational phase of more than 27 years.
Turning out an anticipated 1.3 million ounces of gold annually, “would make Donlin Gold one of the world’s largest gold mines,” states Donlin Gold. The site holds an estimated 34 million ounces of gold reserves.
Donlin Gold was created to oversee the project and is owned by NOVAGOLD and Barrick Gold U.S., Inc.
Several large Alaska resource development projects approved under the Trump administration are now working through challenges in the courts. Among the projects that have spawned lawsuits are a road through wilderness to the Ambler mining district in northwest Alaska, oil and gas development in the Arctic National Wildlife Refuge, and logging in the Tongass National Forest in southeast Alaska.
In the Donlin case, the state has several options in responding to the judge’s decision: accept the judge's order as a final agency decision; return the case to an administrative law judge for additional evidence or findings; revise the proposed enforcement order; or seek additional changes.
The state has until May 5 to file its response.
Updated: This story has been updated to add Donlin Gold’s comments.
This story has been corrected to fix Krysti Shallenberger’s name.