Birch Creek vs Mining Case Study

Legal action by Tribes (and others) that effectively stopped new mining applications for the year, and forced BLM to consider cumulative impacts of multiple mines and set better reclamation standards

Sierra Club (and others including Birch Creek Village Council, Minto Village Council, Golovin Traditional Council, Nunam Kitlutsisti, and Cenaliulriit Coastal Management District) v. Penfold, 664 F. Supp. 1299 (D. Alaska 1987)

This case was brought up because residents, and others, observed declining water quality and fewer (almost no more!) fish in Birch Creek. At the time the community of Birch Creek was downstream from about 60 mines. Community members began to question if the BLM was doing their job to protect the environment under the National Environmental Policy Act (NEPA) and fulfill the subsistence requirements in Section 810 of the Alaska National Interest Lands Conservation Act (ANILCA). This requires that Federal Agencies evaluate the potential impacts of their actions on subsistence uses and needs.   

 

The Villages won this case because of a couple main factors: The BLM wasn’t considering CUMULATIVE impacts* of multiple mines as they are required to do by law. Birch Creek, because of it’s ‘Wild and Scenic’ designation, had excellent historic water quality data to demonstrate the impact of mining over time. A U.S. Fish and Wildlife report also concluded that mining ‘severely degrades the subsistence fishery for the residents of Birch Creek’ and ‘interferes with use of river water for drinking’ (Steese N.C.A. Resource Mgmt. Plan FEIS pg. 233).

 

The BLM was required to stop action on new mining permits until they completed an Environmental Impact Statement for the Birch Creek Watershed that took into account cumulative and subsistence impacts. BLM was also required to do the same for the Beaver Creek and Fortymile River Watersheds, and certain rivers draining into the Minto Flats.

 

The resulting EIS came out in 1988 (https://archive.org/details/birchcreekplacerunit_0/page/n9), and stated that BLM it will ‘manage mining claims of federal lands using existing water quality standards’ taking into account cumulative impacts of multiple mines. It also set better standards for reclamation aiming to improve water quality to meet the standards over time.

 

*Cumulative impacts: The impact on the environment which results from the incremental impact of the action when added to other past, present and reasonably foreseeable future actions regardless of what agency (federal or non-federal) or person undertakes such actions. Cumulative impacts can result from individually minor, but collectively significant actions taking place over a period of time.

 

See (https://law.justia.com/cases/federal/district-courts/FSupp/664/1299/1504393/) for more information.

 

Take home message:

If new mines are developing in your area it is EXTREMELY important to collect baseline water quality data, so future impacts can be measured, call YRITWC.

Know what the EPA and DEC water quality standards are and have equipment and knowledge to test waters occasionally. If water quality parameters are being exceeded call EPA, DEC, and/or YRITWC to begin enforcement actions.

If you feel a current or contemplated Federal action may ‘significantly restrict subsistence uses’ begin documenting this and call YRITWC and/or NARF to discuss further, and perhaps take action.

 

© January 15,2021 Yukon River Inter-Tribal Watershed Council