EPA argues for dismissal in FACA case brought by Pebble Partnership

Federal Judge H. Russel Holland heard oral arguments Thursday in one of the cases Pebble Limited Partnership (PLP) has brought against the U.S. Environmental Protection Agency. In this case, PLP asserts that EPA violated the Federal Advisory Committee Act (FACA) during the process of developing the 2014 Bristol Bay Watershed Assessment, a document the EPA took into account when deciding to initiate the rarely used 404(c) process to consider protections for a defined area in Bristol Bay near the Pebble deposit.

EPA was in the midst of the 404(c) process last fall when Judge Holland approved a preliminary injunction that forbade further work on it until a decision could be made in the FACA case.

EPA has asked the court to dismiss the case.

During closing arguments, Brad Rosenberg of the U.S. Department of Justice argued, “Let’s just assume for a moment that EPA had perhaps already made up its mind in 2010 or 2008 that it wanted to impose some form of restrictions on the Pebble mine site … that’s not a FACA violation. Agencies sometimes have opinions, just as this court may have an opinion on how it’s going to rule on the government’s motion to dismiss before I get up here and argue that it should do so.”

Judge Holland nodded. After hearing arguments from both sides, he said that he would make a decision as quickly as he could, but “there are a lot of issues to grapple with here.”

Themes in Thursday’s legal arguments in the PLP vs. EPA FACA case included:

 PLP counsel contendsEPA counsel contends
What this case is aboutPLP argues EPA had contact with a number of individuals who were against mining at the Pebble site and that this constituted de facto advisory committees that improperly influenced the process of developing the Bristol Bay Watershed Assessment, thus violating the Federal Advisory Committee Act (FACA).This case comes down to contact between many individuals who were opposed to mining at the Pebble site and the EPA. These individuals were not advisory committees and PLP’s arguments have nothing to do with FACA, which is a very narrow statute designed to address structured committees, says EPA. Furthermore, PLP itself had the same type of contacts with EPA administrators at a high level.
EPA processPLP did not know what EPA was doing “in the shadows” with “advisory committees.” It was happening outside the Federal Advisory Committee mandates for open public meetings/minutes.EPA was open and transparent during the Bristol Bay watershed assessment process and PLP had opportunity to participate in the process at every step along the way.
EPA decision-makingPLP says EPA decided in 2010 to veto the Pebble mine and manufactured a way to get to that decision.PLP repeatedly says EPA’s 404(c) action is a veto and “a done-deal.” In a separate PLP vs. EPA case, a Ninth Circuit Court opinion disagreed, saying that the process is not final.
Did EPA establish advisory committees that did not follow procedures set out in the Federal Advisory Committee Act?Yes. These groups of people consistently, persistently and continuously met with EPA over the years to recommend strategy. They constituted de facto advisory committees.No. Even if all PLP’s allegations are true, it merely shows that EPA had contact with separate anti-mining individuals and was not establishing or administering advisory committees. It also had contact with PLP on dozens of occasions over a 10-year period going back to 2003.
Jurisdiction/InjuryPLP says injury occurred by EPA violating FACA.EPA says there has been no injury because PLP has had an opportunity to participate in all the proceedings and that hasn’t shown a concrete injury.
If the judge doesn’t dismiss this case, it will go to the discovery stage.



PLP believes discovery is necessary to gather more facts that will support its claims. “EPA was not open and fair minded (in its process). We think discovery will further bolster and support that.”EPA contends that discovery is a “fishing expedition.”
Bristol Bay Watershed AssessmentThis is not a completed document. It’s a document the EPA continues to rely on as it moves forward with the 404(c) process. PLP says a common-sense remedy the court could apply would be an injunction preventing EPA from relying on this document, characterized by PLP counsel as “fruit of that poisonous tree.”This is a completed scientific document, separate from the 404(c) proceedings. Case law is consistent: when you have a final scientific document, you cannot issue a broad-based injunction against the use of that document in subsequent proceedings.
Related stories
Dismissal arguments heard in Pebble-EPA case (Alaska Journal of Commerce, May 28, 2015)