Court Orders Agencies to Revise Environmental Study Underlying Key Federal Permits for the Donlin Gold Mine

In a victory for Southwest Alaska tribes who oppose the Donlin Gold Mine proposed in their region, a U.S. District Court in Alaska barred construction related to the mine’s challenged federal permits.  The court ordered yesterday that key federal agencies responsible for permitting the Donlin mine must supplement the project’s environmental study to examine the risks of a much larger tailing spill at the mine. Following that analysis, the agencies must then reaffirm, rescind or modify the federal authorizations for the mine.  

In the environmental impact statement completed in 2018, federal agencies looked at the consequences of only a small tailings spill of .5% of the more than 500 million total tons of toxic mine waste held back by the 471-foot-tall tailings dam.  

Last September, the court ruled that the federal government broke the law when it approved the project without studying what would happen to villages downstream if the tailings dam failed catastrophically. 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 then, “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 the order issued yesterday, the court said federal agencies must fix this problem by supplementing the project’s EIS to study a much larger tailings spill and issuing new decisions. The six Kuskokwim River region tribes who filed the legal challenge had asked the court to vacate the mine’s key federal permits. The court ruled Donlin Gold LLC could keep the challenged federal permits, but prohibited permit-related construction before the environmental study is complete. 

Instead, the mine developers must now provide 90 days’ notice to the parties and the court before any construction begins tied to the key federal permits informed by the environmental study. Tribal plaintiffs could then seek an order to stop harmful construction if the mine developers tried to begin construction prior to the study’s completion and new federal decisions on whether the mine can move forward.  

The relevant permits include a Clean Water Act Section 404 permit allowing thousands of acres of wetlands to be filled and a federal authorization granting access across federal lands for a 316-mile gas pipeline from Cook Inlet to power the mine site.  

Donlin Gold is now owned by the Canadian mining company NovaGold and billionaire hedge fund billionaire John Paulson after the Canadian mining giant Barrick Gold recently sold its 50% percent share of the project. Opposition to the mine led by tribes has grown in recent years – and tribes now have this legal victory to aid in their fight against the mine.  

A majority of Yukon-Kuskokwim Delta Tribes have formally opposed the project through resolutions and six tribes – Orutsararmiut Native Council, Tuluksak Native Council, the Organized Village of Kwethluk, the Native Village of Eek, Chevak Native Village, and the Native Village of Kwigillingok – sued in 2023 to invalidate the permits. Tribal leaders say the mine threatens their tribes’ food security and cultural traditions because of the risks it poses to the Kuskokwim River and to the region’s fish and wildlife.  

Following is a statement from ONC, one of the tribes who filed the legal challenge, and from Earthjustice, who represents the Tribes.  

Walter Jim Jr., Executive Director, Orutsararmiut Native Council: “This mine poses unacceptable risks to our communities, including the serious threat of a tailings dam failure.  The federal agencies must provide information about the true risks of this project, so everyone understands the dangers to the lands, waters, fish and wildlife that we depend on for our wellbeing and continued existence. This court ruling is an important victory, and we hope it will lead to more protections for our subsistence ways of life and for future generations, who we hope can continue to live here as our ancestors have for 10,000 years.”

Gavin Phillip, Tribal Administrator, Native Village of Kwigillingok: “Not all tribes who oppose the Donlin Gold mine are involved in these lawsuits, but most tribes in our region have concerns about the safety of the mine and potential harm to the region. We hope this court ruling will help ensure that our lands, waters and communities remain protected. This mine does not have social license to operate, and does not reflect our tribe’s priorities, which are hunting, fishing and stewarding these lands and waters as we always have.”

Esther Friday, First Chief of Chevak Native Council: “We’re glad the court is requiring the federal agencies to study the effects on our region of a catastrophic tailing spill because these impacts have not been examined adequately. Most tribes in our region do not want the mine to move forward. The federal government must ensure this project will not harm our people, or our lands and waters that support the fish and wildlife we depend on.”

Maile Tavepholjalern, Earthjustice Attorney:  “A tailings dam failure at the Donlin Mine could have catastrophic consequences for the region. The court has importantly ruled that federal agencies cannot ignore that risk in their environmental analysis. They must take a hard look at a tailings spill scenario many times the size of what the agencies actually considered. This information will be important to inform Kuskokwim River communities about the true risks involved with this mine – and prompt federal agencies to consider changes to ensure the safety of communities downstream of the mine.” 

Background 

The Donlin Gold Mine project, if built, would reportedly be the largest pure gold mine in the world. 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 includes 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.