Posted on May 29, 2020 by Peter Van Tuyn
Faced with the global pandemic, Bristol Bay’s people, tribes and communities sprung quickly into action. Bristol Bay, Alaska, has roughly 7,000 year-round residents in 31 villages and communities spread over an area larger than the State of Georgia, with a small hospital in the City of Dillingham and only health clinics elsewhere. The population of Bristol Bay can triple as people come by plane and boat to work in the largest remaining wild salmon fishery on the planet. Salmon, of course, know nothing about social distancing, and they are on their way.
One thing the tribes and communities of Bristol Bay didn’t want or need was distraction from their pandemic preparations. Many elders in Bristol Bay are children or grandchildren of those who were orphaned in the Spring of 1919, when the Spanish Flu hit Bristol Bay with devastating force. Bristol Bay lost approximately 40% of its Alaska Native population in the Spanish Flu pandemic, which was the highest rate of death in the Americas. The people of Bristol Bay know in an intimate way to take the threat of the coronavirus seriously.
To allow room to undertake critical pandemic-related work, tribes asked the Alaska District of the U.S. Army Corps of Engineers to extend deadlines for expert input on the Corps’ permitting process for a massive hardrock mine proposal. The proposed mine targets a low-grade, potentially acid-generating ore body, located in the headwaters of Bristol Bay. In the early 2010s, the Environmental Protection Agency studied the matter and found that the mining of the Pebble ore deposit could have unacceptable adverse impacts on Bristol Bay salmon, and it started a regulatory process using its Clean Water Act Section 404(c) authority to protect the salmon from the proposed mine. The Trump EPA reversed course, and the Alaska District of the Corps, which has the direct decision authority for the necessary Section 404 permit, is in the midst of a fast-tracked permitting process, with the goal of finishing it up this year.
The tribal requests for an extension of time concerned cooperating agency comments on a preliminary final Environmental Impact Statement (EIS) for the project. Cooperating agencies include two local tribes, as well as state and federal expert agencies, and they were under a tight deadline to provide input on the integrity of the EIS. A previous version of the EIS had been intensely criticized by tribal and government cooperating agencies, with the Department of the Interior stating, for example, that “the [draft] EIS is so inadequate that it precludes meaningful analysis.” Indeed, the fishery experts commenting on the draft EIS raised concerns about the limitations of the salmon impact analysis in the draft EIS and other permitting documents.
To say that the stakes are high is an understatement, as the uniquely huge and healthy wild salmon population forms the cultural, subsistence, and economic foundation of Bristol Bay. The commercial fishery alone supports 14,000 jobs and results in about $1.5 billion in annual economic activity. Expert input into the preliminary final EIS is thus critical to ensuring a thorough analysis and, ultimately, the protection of the fishery.
A sample of Bristol Bay tribal and government pandemic-related actions underscores the intensity of pandemic response in Bristol Bay. The complexity of the pandemic response effort in Bristol Bay is also evident from the Bristol Bay Native Corporation COVID-19 Response website, which addresses impacts, risks, resources, and much more.
In the heat of the early days of the pandemic emergency, tribes and other Bristol Bay leaders sought an extension of a Monday March 23 cooperating agency input deadline. The Alaska District responded by baldly emphasizing that cooperating agency input on the document remained due on Monday March 23. Tribes and other cooperating agencies thus submitted what they could by the close of business deadline on that day, with one tribal cooperating agency stating the following:
… 45 days was not sufficient time to review and provide meaningful feedback on the [preliminary final] EIS given the breadth of changes to the project proposal and EIS analysis, which has been compounded in the last two weeks by the outbreak of COVID-19 limiting tribal resources, as well as distracting from the tribe’s role in important and urgent COVID-19 response measures for our community. In this time, we have been on multiple teleconferences with the Federal Emergency Management Agency, Health and Human Services, Indian Health Services, Bureau of Indian Affairs, state, military and municipal partners, tribal health care organizations, and others. We have crafted and adopted emergency plans and issued important disaster declarations that open the door to critical aid for our tribal members. In fact, Pebble is the only issue that we work on where deadlines have not been adjusted out of a sensitivity to the current National Emergency; a fact that is inexplicable to us.
An hour or so after close of business on March 23, the Corps announced a one-week extension of the comment period. As a different tribal cooperating agency stated in yet another request to extend the EIS and other Pebble-related deadlines,
[t]his meaningless one-week extension provided inadequate time for cooperating agencies facing significant obstacles related to COVID-19.
The Corps rejected extension requests, stating that the “Alaska District remains fully operational at this time” and not acknowledging in any way the burden on the tribes and other cooperating agencies.
A few days later, the Corps sought input from Bristol Bay tribes and others on a draft Cultural Resources Management Plan for the proposed mine, which is required by the National Historic Preservation Act (NHPA), with a deadline of April 27, 2020. The Corps did this despite the fact that the Advisory Council on Historic Preservation “has encouraged federal agencies to be flexible with [NHPA] deadlines when they have reason to believe the relevant consulting parties may be facing challenges in meeting such deadlines due to the [pandemic].”
As one tribe said in response to the comment period,
The Alaska District [of the Corps of Engineers] is making us choose between protecting our cultural resources on one hand and protecting our community from COVID-19 on the other.
In an understatement, the tribe concluded by stating “[t]his is unacceptable.” One would think that the Corps would acknowledge the challenges that exist in this situation, but the deadline passed without response from the Corps.
Disclosure: Bessenyey & Van Tuyn, L.L.C. represents a client that opposes the proposed Pebble mine because of risks to Bristol Bay salmon.