Native American-Owned Entities Sue Biden Admin Over ‘Unconstitutional’ Decision To Kill Alaska Mining Project

Two organizations owned primarily by Native Americans are suing the Biden administration for its move to effectively kill a mining project in Alaska.

Iliamna Natives Limited and the Alaska Peninsula Corporation, two organizations that predominantly represent small Native American communities in Alaska, filed a lawsuit against the Environmental Protection Agency (EPA) on Monday in the U.S. District Court for the District of Alaska. The lawsuit alleges that the EPA overstepped its authority with its January 2023 final decision to essentially kill the Pebble Mine project on the grounds that the development would cause unacceptable damage to the region’s salmon population.

The EPA used the Clean Water Act to substantiate its decision, which was met with approval from environmentalist organizations staunchly opposed to the mine’s presence in the state’s Bristol Bay area. The agency specifically used language in the Clean Water Act that allows the EPA to exercise “veto authority” to effectively kill the project, which it has only invoked three times over the past three decades, according to Alaska Public Media.

“The Clean Water Act provides a comprehensive permitting regime for the United States Army Corps of Engineers to authorize projects involving the discharge of dredged and fill material into navigable waters. But after setting out standards to govern such permitting, Congress authorized the Environmental Protection Agency to take an end-run around the permitting review process. In so doing, Congress unconstitutionally delegated to EPA the authority to override the CWA’s permitting process virtually whenever the EPA Administrator deems fit,” the lawsuit asserts. “EPA has now asserted its ‘veto power’ to kill a mining project in Bristol Bay at the Pebble deposit, which is the largest gold- and copper-ore deposit in the world. If EPA had not exercised its unbounded discretion to veto the project, mine development would have continued.”

Iliamna Natives Limited is a Native American village corporation owned by the Iliamna community, which is located about 17 miles away from the would-be site of the Pebble Mine, according to the lawsuit. The other plaintiff, the Alaska Peninsula Corporation, is a consolidated organization composed of five smaller village corporations in the nearby area; both entities have an economic interest in the mine’s completion and operation.

Notably, the Biden administration has made a deliberate effort to incorporate and heed Tribal concerns into its decision-making processes, particularly in implementing its $1 trillion-plus climate agenda. When the EPA announced that it was effectively killing the project in January 2023, the agency specifically cited the importance of the area’s salmon fisheries to indigenous people living in the area.

“The EPA doesn’t get to veto any development project it doesn’t like,” said Damien Schiff, an attorney at Pacific Legal Foundation who is representing the plaintiffs. “When Congress wants to give an agency power, it must also give it specific instructions on how and when that power can be used. EPA claims unlimited discretion: that is unconstitutional.”

EPA did not respond immediately to a request for comment.