The Chilkat Indian Village of Klukwan and three environmental conservation groups are appealing a decision from the federal District Court in Alaska to the U.S. Court of Appeals for the Ninth Circuit.
They say that the Bureau of Land Management (BLM) violated the National Environmental Protection Act when it approved Constantine Metal Resources’ mining exploration projects.
Chilkat Indian Village tribal council president Kimberley Strong said the issue is a matter of survival. “The river feeds us financially, culturally, spiritually and literally. This mine threatens to wipe us off the map. It is not the question of whether the mine will release pollution. It is a question of when. A foreign company’s profits should not mean more than my people’s survival,” Strong wrote in a press release.
BLM authorized the Canadian mining company’s five-year plan to explore mineral deposits on the confluence of the Chilkat, Klehini and Tsirku rivers, 17 miles east of the Chilkat Indian Village of Klukwan. Constantine’s project will determine whether or not a hard rock mine is economically viable in the area.
At the heart of the case is the question of environmental impact. The petitioners argue that BLM violated federal law when it failed to consider the impacts of potential mine development on a critical watershed. Constantine noted that mineral exploration often procedes without mine development. In March, Judge Timothy Burgess ruled that Constantine’s exploration would not necessarily result in a full-scale mine—considering the exploration and the mine as separate, BLM’s Environmental Assessment (the lowest level of federal environmental review) was issued, finding that the project would not have a significant environmental impact.
“They never looked at the entire environment,” said Guy Archibald, staff scientist for the Southeast Alaska Conservation Council, one of the conservation groups in the petition. He called the area of mineral exploration a harsh environmental and geological area, prone to avalanches, where the watershed could be contaminated by any disruption to Constantine’s operations. “It’s an irreversible moment,” said Archibald.
Executive director of Lynn Canal Conservation, also in the petition, Jessica Platcha said that because a mine would operate in a massive sulfide deposit in a wet environment, acid mine drainage would be the outcome of any mining. “There’s water everywhere—typically 20 to 30 feet of snow in winter, 50 or more inches of rain. Drilling under the Saksaia Glacier through two faults will release untold amounts of water—contamination is completely unavoidable, and that contamination is going to go downstream,” Plachta said.
“The result of approving activities in a piecemeal fashion delays or ignores the bigger picture of environmental impact, and that’s something National Environmental Policy Act forbids,” Earthjustice lawyer Erin Whalen said.
Constantine representatives said they anticipated the appeal. “Exploration must precede mine development, and mine development impacts cannot be analyzed until exploration is complete.”
In March, BLM argued that until exploration was complete, potential future mining is neither a connected or reasonably foreseeable action.
Whalen cited Constantine’s positive mineral findings in the area for the past 10 years, spending more than $40 million on the project, and according to Constantine’s own projections, they may be able to move from exploration to engineering and development within the next two to three years.
Whalen said, connecting Constantine’s exploration to a future mine is an appeal to common sense and should be subject to greater environmental review.
The case is time-sensitive because as soon as Constantine makes a valuable discovery, they gain property rights on federal land. According to the General Mining Act of 1872, if a site contains a deposit that can be profitably marketed, the citizens or firms who made the discovery enjoy the “right to mine” regardless of most other uses of the land. For the time being, the BLM has discretion to limit Constantine’s access to the area.
“There’s the risk that if BLM doesn’t take a look now, Constantine will earn property rights that make it much harder for the agency to stop a mine,” said Whalen.
Kimberley Strong was in Washington, D.C. last week to support Congressman Raul M. Grijalva’s and Senator Tom Udall’s effort to reform the 1872 Act. While she was there, Strong said that her people have been stewards of the Chilkat River for thousands of years. “(But) the current 1872 law makes it impossible for anyone to be steward of our land, as it gives the power to the mining companies by saying that mining supersedes all other uses of the land. This means the foreign companies’ profit is more important than the livelihoods of the people that live in these communities.”