J. P. Tangen

After four years of intensive work and an appeal, a placer mining company finally secures a keystone permit from the Army Corps.

I am not in the custom of speaking about matters that I have worked on; however, in this case, I thought it desirable to make note of a recent development with regard to placer mining in Alaska's coastal wetlands.

IPOP, LLC, sought permission to mine on State of Alaska mining claims in Bonanza Channel, approximately 25 miles east of Nome. The area is sparsely populated, and the waters are tidally influenced.

A permit was sought under Section 404 of the Clean Water Act from the Army Corps of Engineers. The District Office undertook an extensive investigation of the proposed project, including required consultation with tribal entities in the region, evaluation of the potential impact on residential and migratory wildlife, examination of water pollution risks, and consideration of comments from the public and interested State and federal agencies.

The original application to the District Office was received on March 16, 2018, but no decision was made until September 8, 2022, at which time the District Engineer, declared that the project was "not in the public interest."

This determination forced the applicant to appeal to the Division. On appeal the District Engineer's decision was reversed, opening the path for IPOP to seek such other permits from State agencies as may be required.

As a practical matter, the decision on appeal laid bare the propensity of the District Office to abuse its authority by seeking to kill the project with a thousand cuts.

Furthermore, there was no justification in the record for the adverse decision at the District level. Finally, the four-year delay cost the applicant dearly.

A second point, and far more important to Alaskans, is that Alaska has 170 million acres of coastal wetlands – far more than in the rest of the country. A substantial portion of those wetlands are prospective for gold and other minerals.

We all know that wetlands, especially coastal wetlands, are important to the State. Alaska's mining industry is super-sensitive to environmental factors due in no small part to the heavy burden placed on the industry by federal and State regulatory agencies.

Pollution due to dredge and fill operations are especially noteworthy and subject to reasonable control by the Army Corps of Engineers.

Habitat is likewise entitled to the highest form of protection under federal and State law.

But regulation should not and cannot be a justification for blocking resource development.

Nome is well-known for its gold rush. Even today, 125 years later, gold mining in the Nome area, both upland and offshore, is an on-going enterprise.

Throwing a regulatory roadblock in front of this mining operation, based on this single agency's "public interest" determination is yet another illustration of the administrative state gone wild.

In this case, where the proposed operation was designed from the outset in a hundred ways to be environmentally friendly, the District Engineer lost sight of what should be the Corps' mission – finding the way to say "yes".

The appellate decision rightfully points out that the IPOP project must take extraordinary care to ensure that its operation has clear requirements for the safeguarding of trash and other waste materials.

There likewise must be constant monitoring of the vicinity for protected terrestrial and marine animals, notably with the commitment to stop operations if the animals approach too close.

Turbidity will be restricted by a floating curtain around the immediate area of operations consistent with the requirements of the Clean Water Act.

And, of course, the operations will be on State of Alaska mining claims and, therefore, subject to the independent regulatory requirements of the Departments of Natural Resources, Environmental Conservation and Fish and Game.

The coastal wetlands of Alaska are Alaska land. When the State entered the Union, it did so on an "equal footing" with the rest of America. That means the State, by virtue of statehood alone, owns the submerged land for at least three miles off its shore.

The Alaska Land Act specifically contemplates that upland mining claims may be located on a wetland if at least a witness post for one corner of the claim is on dry land.

There are other placer mining operations around the State that may benefit from the IPOP decision. Many of Alaska's rivers carry gold downstream to the sea. Where a river meets the ocean, there is likely to be gold; and there is also likely to be coastal wetlands.

If the country or the State is willing to countenance the District Office of the Corps making arbitrary "public interest" decisions, Alaska and the nation will continue to be robbed of the benefit of this wealth.

With the Corps' appellate decision in hand, now it can only be hoped that issuance of any remaining permits will quickly ensue.

The State needs the jobs. The miners need the revenue. And the world needs Alaska's gold.

One can only be mindful of the endless trauma the Pebble Project continues to endure to see the imbecility of the absentee landlords' commitment to derailing Alaska mining projects big and small.