On March 15, a federal district court judge ruled against the Chilkat Indian Village of Klukwan and conservation groups in a lawsuit brought against the Bureau of Land Management (BLM) in 2017 for violating the National Environmental Policy Act when it approved Constantine Metal Resources’ mining exploration projects.
The plaintiffs, including Lynn Canal Conservation, Southeast Alaska Conservation Council and Rivers Without Borders, argued that the federal agency failed to assess future impacts before approving a five-year exploration plan at a mineral site and a road extension in the Chilkat Valley.
“The facts of this matter are not in dispute; rather, the parties disagree on the sole issue of whether NEPA requires consideration of future impacts from potential mine development as part of the environmental review for exploration activities,” the ruling states.
Judge Timothy Burgess found that neither NEPA requirements nor local law mandate BLM review future impacts from mine development prior to approving exploration.
Plaintiffs contended that future mine development was a connection action with exploration activities because without possibility of development, the impetus for exploration would be a waste.
“Constantine’s exploration has yielded positive results; far from being dissuaded after putting in so much time and money, the company now anticipates that in the next two or three years ‘assuming continued positive results . . . emphasis will shift from exploration to engineering and development, ’”the complaint said.
But the judge found that an exploration site and future mine are not “inextricably intertwined.”
“As defendants correctly point out, mineral exploration can—and does—often proceed without mine development,” the court report said. “District courts in the Ninth Circuit have found that exploration activities have independent utility separate from the ultimate goal of development—namely, information gathering.”
The exploration area and potential site of a future mine, known as the Palmer Project, are next to Glacier Creek. The creek flows into the Klehini River which flows into the Chilkat River, both fish-bearing streams that include all five salmon species.
The complaint said the exploration will likely generate pollution, such as acid mine drainage that poses threats to the watershed.
Plaintiffs argued urgency in performing an economic study prior to mining exploration approval because once a valuable discovery is made, Constantine will accrue property rights and BLM will have less discretion in preventing a mine.
“Plaintiffs are correct that discovery of an economically viable deposit would vest property rights in Constantine, or any other party who should make such a discovery. However…the vesting of rights under the Mining Act occurs independent of any action by the Borough of Land Management (BLM).”
The ruling states that finding valuable materials to advance a mine depends on actions outside of BLM’s control therefore NEPA review is not required at this stage.
“NEPA’s regulations cannot bind BLM to act based on the possibility of an event that is not only outside of their control, but occurs due to the operation of law and is contingent on the actions of third parties, without any action at all by BLM,” the report says.
Sarah Davidson, Inside Passage waters program manager at Southeast Alaska Conservation Council, said the organization is disappointed by the decision. “All indications are that this mine would be harmful to the Chilkat Valley and proceeding without a comprehensive environmental study is risky,” she said.
If a mine is developed, federal agencies would be mandated under NEPA to conduct further impact studies.
“If (Constantine Metal Resources) changes from exploration to mine development, a new environmental analysis would be required,” BLM Glennallen field manager Marnie Graham said.
Constantine Metal Resources has found about 14 million tons of minerals as of January, according to its vice president of external affairs Liz Cornejo.
Currently, the project is still in exploration. Constantine is developing an economic viability report, the first of three steps in economic studies.