Ninth Circuit Court of Appeals orders Northern Dynasty’s Pebble case to be judged on its merits

Northern Dynasty Minerals Ltd. [NDM-TSX; NAK-NYSE American] reported that a majority decision by the U.S. Court of Appeals for the Ninth Circuit released June 17 in relation to a lawsuit brought by Trout Unlimited and other environmental groups against the U.S. Environmental Protection Agency (EPA), challenging the federal agency’s July, 2019, decision to withdraw its previously issued proposed determination with respect to Alaska’s Pebble Project, means that the case must now be heard and judged on its merits by a federal district court in Alaska.

In April, 2020, U.S. district court Judge Sharon L. Gleason granted EPA’s motion to dismiss the case without a hearing, stating the plaintiffs had “failed to state a claim upon which relief can be granted.” The June 17 decision by the Ninth Circuit Court of Appeals reversed in part the lower court ruling and remanded it back to federal district court in Alaska for additional proceedings to determine whether the withdrawal was arbitrary, capricious, an abuse of discretion or contrary to law. One of the three judges on the Ninth Circuit panel that issued the decision wrote a lengthy dissent opposing the majority decision.

The plaintiffs, a collection of anti-development activists led by Trout Unlimited, challenged the EPA’s authority to withdraw its prior regulatory action under Section 404(c) of the Clean Water Act (initiated in 2014 by the Obama administration), which sought to pre-emptively veto the Pebble project before a permit application had been filed or an environmental impact statement permitting process was undertaken.

Northern Dynasty president and CEO Ron Thiessen said, in his view, the U.S. federal government should prevail at the district court level and the EPA’s decision to withdraw its prior proposed determination should be upheld.

“This case was summarily dismissed last year by a federal judge in Alaska because the plaintiffs failed to state a cause of action that was reviewable by the courts,” he said. “Today’s split decision by the Ninth Circuit does not strengthen the plaintiffs’ case. Accordingly, we believe the federal government should prevail when the case is ultimately heard so long as the court’s final decision is based on the merits of the arguments presented.”

Northern Dynasty’s principal asset, owned through its wholly owned Alaska-based U.S. subsidiary, Pebble Limited Partnership, is a 100% interest in a contiguous block of 2,402 mineral claims in southwest Alaska, including the Pebble deposit, located 200 miles from Anchorage and 125 miles from Bristol Bay.