Northern Dynasty Minerals Ltd (NAK)

[Atinus]

On the plus side, the Justice Department is moving to dismiss a case against Pebble, but watch out for the Ninth Circuit: https://www.law360.com/appellate/articles/1305861/feds-say-corps-pebble-mine-delay-shows-enviro-precaution This seems bullish:

Feds Say Corps' Pebble Mine Delay Shows Enviro Precaution

By Juan Carlos Rodriguez
Law360 (August 31, 2020, 8:42 PM EDT) -- The federal government on Friday told the Ninth Circuit that its recent decision to temporarily block the controversial Pebble Mine is proof that it's taking a measured approach to project approval and urged the court to dismiss a conservation group's lawsuit.

Trout Unlimited had asked the Ninth Circuit to overturn an Alaska federal judge's decision upholding the U.S. Environmental Protection Agency's withdrawal of Clean Water Act restrictions that would have effectively blocked the mine. But the government said Aug. 24's announcement from the Army Corps of Engineers that it needs more information from Pebble Limited Partnership on its plans to mitigate environmental impacts around the proposed mine proves environmental concerns are being handled appropriately.

Trout Unlimited alleges the mine will jeopardize Alaska's Bristol Bay watershed, including its salmon habitat and fishing industry, and that by withdrawing its action that would have effectively blocked construction, the EPA violated the Administrative Procedure Act and Clean Water Act by failing to consider whether the mine posed "unacceptable adverse effects."

But the government said the evidence shows that's not the case.

"The Corps' recent action does not affect the district court's correct conclusion that EPA's withdrawal of the 2014 proposed determination is not reviewable as a matter of law; it does, however, show that the Corps is not 'racing ahead to grant PLP's permit soon,' as Trout Unlimited contended," the U.S. Department of Justice said in a notice to the court.

The government urged the court not to grant Trout Unlimited's motion to expedite the case.

The Corps' Alaska district last week posted a letter to PLP, which is owned by Northern Dynasty Minerals Ltd., asking the company for detailed plans on how it will address the "unavoidable adverse impacts to aquatic resources" that would result in "significant degradation" at the project site in Bristol Bay.

The Corps, which issued a favorable final environmental impact statement in July, said in-kind compensatory mitigation will be required within the Koktuli River Watershed for discharges associated with the transportation corridor and the port site.

PLP is seeking a Clean Water Act permit for the mine, something it cannot proceed without.

Alaska U.S. District Judge Sharon L. Gleason in April said the APA prevents challenges to the EPA's withdrawal of its Clean Water Act restrictions. The judge said the EPA had discretion to withdraw those proposed restrictions and its decision can't be reviewed by the courts.

Trout Unlimited has told the Ninth Circuit that Judge Gleason was wrong to conclude that there is no judicial review of the EPA's action and warned that if the ruling is allowed to stand, it "would severely erode the right of those harmed by agency actions to obtain redress through judicial review."

Paul Werner of Sheppard Mullin Richter & Hampton LLP, who represents Trout Unlimited, slammed the notice.

"The Corps' notice highlights the irrationality of EPA's withdrawal of its proposed determination without considering the mountain of scientific evidence showing the proposed Pebble Mine will have unacceptable and disastrous effects to Bristol Bay waters and salmon, and the lawlessness of its attempt to defend the withdrawal by invoking unfettered discretion," Werner said. "The government is also incorrect that there is no need for timely judicial decision given PLP's pronouncements that it expects it will address the Corps' concerns within weeks."

The EPA is represented by Anna T. Katselas of the U.S. Department of Justice's Environment and Natural Resources Division.

Trout Unlimited is represented by Paul A. Werner, Steven P. Hollman, Abraham J. Shanedling and Kirsten O. Ryan of Sheppard Mullin Richter & Hampton LLP.

The case is Trout Unlimited et al. v. U.S. Environmental Protection Agency et al., case number 20-35504, in the U.S. Court of Appeals for the Ninth Circuit.