Roger William, a soft-spoken former chief of the Tsilhqot’in Nation
in Canada, and Tim Bristol, a recreational fishing activist in the
United States, have never met. They adhere to divergent cultural
customs in different countries on opposite sides of rugged,
glacier-sheathed mountains. But they share a common concern about the
persistence of clean, untainted water and how it is becoming an
ever-rarer commodity in the world.
Uniting their attention is a landmark legal case now before the US
Supreme Court. Both men say the fate of faraway Lower Slate Lake, a
tiny unremarkable tarn in the coastal Alaskan rainforest above the
Pacific Ocean, holds huge implications for lakes across the continent.
The question soon to be answered by America’s highest court is this:
Should natural lakes be used as dumping grounds for wastes generated by
Nearly four decades after Congress passed the federal Clean Water
Act to protect waterways from industrial pollution, the proposal by
Coeur d’Alene Mines Corp. to dispose of tons of effluent in Lower Slate
has sparked an international debate.
Legal scholars say it assumes a bigger profile in these tough
economic times and amid soaring gold prices, yet the issue, they say,
transcends the localized dichotomy of jobs versus environment.
Coeur’s blueprint for the underground Kensington gold mine located
in the Tongass National Forest 45 miles north of Alaska’s capital,
Juneau, was made possible by regulatory changes implemented during the
Bush administration in 2002, enabling companies to use lakes as
lower-cost tailings impoundments.
The action deepened a fracture line between environmentalists and
industry. Moreover, it casts a spotlight on two federal regulators: the
US Army Corps of Engineers, which gave Coeur the green light, and the
US Environmental Protection Agency, which is accused of violating its
Environmental attorney Tom Waldo with the firm Earthjustice says
that the impetus for the Clean Water Act was a legacy of contamination
and public health concerns caused by industrial companies,
municipalities, and agriculture historically treating waterways as
convenient, expendable repositories for waste.
He points to a benchmark ruling during the 1970s against the Reserve
Mining Co. in Minnesota, which disposed of taconite tailings, laden
with asbestos, into Lake Superior from its processing facility,
contaminating drinking water. In the US West, water quality in an
estimated 40 percent of rivers has been impaired by historic mining
sites long abandoned.
“The lesson is that it’s not a good idea to discharge mining wastes,
especially those that are hardly benign, directly into water bodies,”
Mr. Waldo explains, echoing what he said before the Supreme Court
justices in January (Coeur Alaska, Inc. v. Southeast Alaska
Conservation Council). Coeur, meanwhile, argued that entombing tailings
in Lower Slate would actually result in a smaller development footprint
over the alternative of stacking crushed earth in a remote wetland. A
decision is expected before June.
“I don’t want to get into the elements of the Supreme Court case
except to say we were fully permitted and ready to go ahead,” Coeur
spokesman Tony Embersole says. “The only thing that hadn’t been
completed was the tailings facility at the lake, then environmentalists
tied it up in litigation.”
Native Alaskans support mine jobs
Among the mine’s strongest supporters, he says, are native Alaskans,
including the Tlingit and Haida tribes, which have struggled with high
“This is … a huge economic opportunity for southeast Alaska,”
Embersole says, mentioning 225 direct mining jobs, nearly as many jobs
created as a byproduct of the mine, and millions of dollars in annual
economic activity over the estimated 15-year life of the project.
With $220 million already invested in preparing Kensington for
operation, Embersole would not say how a negative ruling from
Washington, D.C., might affect the project.
A compromise brokered by the mayor of Juneau among
environmentalists, the company, and federal regulators – and which
would have allowed the mine to stack tailings in a wetland instead of
in the lake – broke down last fall when Coeur pulled out of
“We are not blanketly opposed to mining or to creating good jobs,”
says Rob Cadmus with the Southeast Alaska Conservation Council.
“There was a win-win option on the table that would have ensured the
opening of the mine and the protection of the lake. Instead, Coeur
decided to stick with their plan to dump wastes into Slate Lake and
gamble the Supreme Court will decide in their favor.”
Coeur case may set precedent
It is this element that makes Kensington a high-stakes test case being closely watched across the continent.
Where William and Mr. Bristol are concerned, they say the Supreme
Court ruling, expected later this spring, will set a precedent rippling
all the way to Appalachian coal country and into the Canadian Maritimes.
For William, a parallel clash is playing out over a proposed mine in
his own backyard in northern British Columbia. In his native tongue,
the tarn he is trying to protect is Teztan Biny. The English
translation is “Fish Lake.”
Vancouver-based Taseko Mines Limited wants to use Fish Lake as a
dumping ground for toxic wastes from its Prosperity Mine, a proposed
multibillion-dollar open-pit gold and copper operation that would
create 500 full-time jobs, 1,280 indirect jobs, and generate $200
million annually over two decades.
Mr. William recently was lead plaintiff in a case brought before the
British Columbia Supreme Court that reaffirmed hunting and fishing
rights for native tribes in the area where the mine is proposed.
“My people find it kind of ironic that the British Columbian
government has been forced to recognize our historic claim and right to
harvest fish, while at the same time it is considering granting
permission to a mining company to destroy the lake where the fish
live,” William says.
Taseko acknowledges that its activities will exact an ecological
toll on Fish Lake. In exchange, the company says it will build an
artificial body of water nearby and stock it with fish.
“The logic of it is insulting,” William responds. “Who is opposed to
jobs? Not me. But as archaeologists have confirmed, our people have
lived off the fish in Teztan Biny for thousands of years. The mining
company wants us to sacrifice our heritage for an economic opportunity
that will last 25 years and then leave us to deal with a ruined lake
and worries about pollution for generations.”
Geographically speaking, mining companies aspiring to use lakes and
rivers as dumping zones is a phenomenon happening coast to coast, says
Ramsey Hart with MiningWatch Canada. He ticks off the names of projects
already in operation and others proposed in Labrador, Newfoundland, the
Arctic north, and British Columbia. Many of them, he says, pit powerful
mining companies against native tribes that allegedly were not
consulted by provincial governments granting ore-diggers access to
their aboriginal land, another fulcrum for growing conflict.
“Prosperity Mine is the poster child for controversy over mine
wastes in lakes,” Hart says, “but, to some degree, regulators in Canada
will be taking a cue from how the Kensington case is decided. I’m not
so naive to think it will cause our provincial and federal governments
to change their ways, but the message coming from the US will be
Conflict over definitions, toxicity
The law firm Ecojustice Canada filed an amicus brief with the US
Supreme Court detailing impacts on lakes harmed by companies north of
the US border.
Gov. Sarah Palin (R) of Alaska stands firmly behind Coeur’s proposal
at Kensington. Coeur and the Army Corps of Engineers characterize the
postmining material that would line the bottom of Lower Slate Lake as
“fill” that is no more threatening than laying beach sand.
Waldo, the environmental attorney, says that’s misleading. “They
would be taking pulverized rock from the mine, adding chemicals to help
skim off the gold, then piping the leftover slurry waste over three
miles to the lake at the rate of 200,000 gallons a day,” Waldo says.
“This stuff won’t be harmless. It’ll have a pH level equal to ammonia,
which is toxic to aquatic life.”
Steve Borell of the Alaska Miners Association claims
environmentalists are callous toward people who want to make a living
on natural resources.
“Their purpose is to stop any and all industrial activity,” he says.
“They make Lower Slate seem like some incredible jewel. It’s just a
dumb little lake that hardly has any value.”
Lower Slate is not a destination for anglers or hikers, nor is it a
direct water source for humans, but it is home to an estimated 1,000
Dolly Varden char. The company acknowledges that the lake’s aquatic
life, including many of those fish, will perish, though it says the
lake can be restocked with new fish afterward and insists Lower Slate
will end up being healthier than before.
Ruling may affect other mine projects
The US Supreme Court’s impending ruling on the impounding of mine
wastes in Lower Slate Lake may set a precedent for similar situations.
• Ecojustice Canada will go before the Supreme Court of Canada to
challenge the legality of the Red Chris Mine in British Columbia. Red
Chris, owned by Imperial Metals Corp. of Vancouver, has proposed
building a massive open-pit gold and silver operation in the middle of
the Stikine River basin.
The project is estimated to generate nearly half a billion tons of
tailings and waste rock that could create acid mine drainage and pose a
threat to fish and wildlife deemed important to aboriginal subsistence.
It has sparked protests and civil disobedience among First Nations
• The US Supreme Court ruling could also influence the direction of
the largest proposed gold, copper, and molybdenum venture in the world,
the Pebble Mine, being pursued on the remote Alaska Peninsula.
To extract an estimated $350 billion in minerals, Northern Dynasty
Mines Inc. and its British partners, Rio Tinto and Anglo American,
would open two mines: A giant open pit, and probably a network of
underground tunnels, would be carved into a labyrinth of headwaters
draining into Bristol Bay on the ocean and in the vicinity of lakes
Clark and Iliamna.
Bristol Bay, Alaska, is at the epicenter of the largest healthy
salmon runs left in the world and a legendary sport trout fishery. Gov.
Sarah Palin (R) of Alaska (who supports the Kensington mine proposal)
has not yet expressed publicly whether she supports the Pebble Mine
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