In a major victory for Southwest Alaska Tribes who depend on the Kuskokwim River and the surrounding lands and waters for their continued existence, a U.S. District Court in Alaska ruled today that key federal agencies responsible for permitting the Donlin mine failed to fully consider the project’s harms in the environmental study for the project.

Specifically, the judge’s ruling found that federal agencies failed to realistically study the impacts to downstream waters and villages from a potentially catastrophic tailings dam failure. The mine developers are proposing to build a 471-foot-tall tailings dam to contain more than 500 million tons of toxic mine waste.

The court found that the risk of a catastrophic tailings spill was a 1 in 1,000 chance in a year or 2 in 100 (2%) in 20 years. As the court stated, “to put these numbers into perspective, these same odds for the risk of an airplane crash would likely deter nearly anyone from flying” and yet federal agencies failed to consider the risk.

In her order, Judge Gleason said the agency violated federal environmental and subsistence protection laws when it failed to assess the potential for a catastrophic tailings failure that could be caused by the massive gold mine.

The court will next decide, after arguments from the parties over the next five weeks, how to remedy this failure. Ordinarily, the court would strike down the permit, which is what the Tribes requested. However, mining interests are seeking to keep the permit in place while they remedy the flawed environmental impact statement and subsistence analysis.

Donlin Gold LLC, owned by the mining giants NovaGold and Barrick Gold Corporation, plans to build the massive open pit mine 10 miles north of the Kuskokwim River and the village of Crooked Creek next to a salmon spawning stream that flows into the Kuskokwim River. If built, Donlin will be the largest pure gold mine in the world in a critical watershed that Alaska Native people in the region have depended on for thousands of years.

A majority of Yukon-Kuskokwim Delta Tribes have formally opposed the project through resolutions and six Tribes — Orutsararmiut Native Council, Tuluksak Native Community, the Organized Village of Kwethluk, the Native Village of Eek, Chevak Traditional Council, and the Native Village of Kwigillingok — sued in April 2023 to invalidate the permits. Three tribes filed initially, joined by three more tribes a month later.

The six tribes participating in the lawsuit are Orutsararmiut Native Council, Tuluksak Native Community, the Organized Village of Kwethluk, the Native Village of Eek, Chevak Traditional Council, and the Native Village of Kwigillingok. Following are statements from the Tribes and from Earthjustice, who represents the Tribes. 

Walter Jim, Orutsararmiut Native Council Chairman: “This victory is incredibly important to our Tribal members who have been on this land for almost 10,000 years. The threat of the Donlin Gold Mine has loomed for many years now, posing unacceptable risks to the health of our lands, waters, fish, wildlife, and our people. We are relieved and happy that the judge is requiring a harder look at the mine’s impacts, and the risk of a tailings failure.”

Boris Epchook, President, Organized Village of Kwethluk: “Our primary concern all along has been the Kuskokwim River, which has sustained our customary and traditional practices for generations. We are grateful the courts are recognizing the importance of this sustainable resource we have always relied on and that must be protected by law.”

Gavin Phillip, Tribal Administrator, Native Village of Kwigillingok: “We must protect salmon and other natural resources we depend on for our existence. This ruling is a relief. Hopefully, the mine developers will now stop pursuing the project. We could use economic development in our region, but not extractive industry like mining that threatens our lands, waters, people and traditional ways of life.”

Ferdinand Carter, Vice President, Native Village of Eek: “This mine poses a threat to our traditional subsistence ways of life, and to the environment and fisheries of the Yukon-Kuskokwim Delta. A disaster upriver will impact the whole region. Despite promises of safe protocols and procedures from Donlin, a tailings dam failure remains a significant risk to our entire region, and we’re grateful the judge has recognized that in today’s ruling.”

Henry Peter, Tribal Administrator, Tuluksak Native Community: “We are very glad and grateful for this first step in protecting our lands and wildlife for generations to come.  Protecting smelt and all of the resources that we depend on is beneficial for the entire region.”

Maile Tavepholjalern, Earthjustice Attorney: “The judge today recognized the federal studies that underpin the mine’s permits failed to thoroughly consider the environmental and subsistence impacts of the mine. Now, the federal agencies will need to conduct a more honest assessment of the mine’s impacts.”

Hannah Foster, Earthjustice Attorney: “This is without a doubt a huge win for our Tribal clients and communities on the Kuskokwim. A tailings dam failure at the Donlin Mine could have catastrophic consequences for the region. As the judge recognized, by failing to consider a larger tailings spill and the effects it could have, the agencies violated federal law. Exactly how this failure will be remedied will be determined via further briefing. But we are happy that today the judge recognized that the Donlin Mine presents a major risk to the region, and that agencies cannot ignore that risk in their environmental analysis.”

Background

The Donlin Gold Mine project, as initially proposed, would be the largest pure gold mine in the world. If built, the company is expected to extract 556 million tons of ore to produce about 30 million ounces of gold over the 27-year life of the mine — and would generate 2.5 billion tons of waste rock, some of which would generate acid drainage.

The mine project would include a 316-mile-long buried gas pipeline from Cook Inlet in Southcentral Alaska to the mine site; transportation infrastructure including a new port, a port expansion, and a tripling of barge traffic on the Kuskokwim River; plus the mine site itself that included an open pit, a processing plant, waste rock and tailings storage facilities, water treatment and power plants, dams and reservoirs, airstrips, and access roads. In all, the mine project would cover 25 square miles. After the mine’s closure, the open pit would fill with contaminated water, forming a permanent lake that would require water treatment in perpetuity and would never meet water quality standards.