State would have set aside 112,445 acres to help Pebble under mitigation plan

The Pebble mine promoters collaborated with the Dunleavy administration on a plan under which the state would have agreed to preserve 112,445 acres of state land near the proposed mine site for at least 99 years as “compensatory mitigation.”

The U.S. Army Corps of Engineers rejected the Pebble permit Wednesday, saying its mitigation plan “lacked sufficient detail, among other things. The value of Northern Dynasty stock dropped by about 50 percent shortly after the announcement.

Pebble had kept its proposed mitigation plan secret, but the Corps released it along with an analysis of its shortcomings. The mine promoters did not explain the logic of how setting aside land that they do not own for 99 years would be “compensatory mitigation” for the mine.

What’s most striking is that Pebble felt secure enough to make all sorts of promises about future actions by the state apparently based on secret assurances about what it can expect from the Dunleavy administration.

The mine promoters wrote their report as if the decision to preserve the land had already been made by Gov. Mike Dunleavy: “The Koktuli Conservation Area will preserve 112,445 acres within the Koktuli River watershed and remove the threat of development from the protected areas,” Pebble said.

Pebble did not reveal the exact legal mechanism under which the Dunleavy administration would preserve the land or if a handshake agreement had been reached, but at state meetings in August, administration officials said it could be arranged between two state departments under an “Interagency Land Management Assignment” or the state could make deed restrictions or take other steps.

In its report to the Corps, Pebble hinted that there was no doubt that the Dunleavy administration had already signed off on its plan.

“The preservation of the Koktuli Conservation Area will allow the long-term protection of a large and contiguous ecosystem that contains highly valuable aquatic and upland habitats, including a riparian corridor along 70 miles of the Koktuli River,” Pebble said in the mitigation plan released Wednesday by the Corps of Engineers.

“Given the largely undisturbed nature of the Koktuli River watershed, as well as adjacent watersheds, preservation of the Koktuli Conservation Area was identified as the only appropriate and practicable option for consistency with the watershed approach,” Pebble said.

The documents released Wednesday largely confirm what former Pebble CEO Tom Collier said on the Pebble Tapes about working out a deal with Gov. Mike Dunleavy in which he would agree to preserve state lands near the mine site to help Pebble. What Collier didn’t predict was that the Trump administration would reject the plan.

The documents also confirm what happened at state meetings in August about how the Dunleavy administration was in talks about means by which a land preservation order could take place.

On Aug. 4, state officials and Pebble officials met to try to develop “A plan with conceptual detail that PLP (Pebble Limited Partnership) and DNR (Department of Natural Resources) agree with for meeting mitigation requirements set by USACE (US Army Corps of Engineers.)”

Pebble has mining claims on about one-third of the 112,445 acres, which it would have given up as part of the deal. The Compensatory Mitigation Plan rejected by the corps said that a “deed restriction” and covenants would be placed on the land for 99 years.

“A deed restriction will be recorded in the appropriate recording district to limit uses in accordance with the CMP,” Pebble said. The deed declaration would have to be made by the state, not the mine, but the promoters did not spell that out or cite any signed agreement of the state decision.

“The declaration will be finalized and recorded prior to project construction and will remain in effect for at least 99 years,” the mine promoters said.

The company did not say how it had acquired assurances from the state about the preservation plan or the deed restriction. But the Dunleavy administration has been working privately with Pebble for years and the mine was operating under the reasonable assumption that an agreement was at hand.

The Corps faulted Pebble because it did not explain why it failed to offer a perpetual conservation easement, instead of a 99-year deal, and Pebble did not provide the legal document with the state guarantee.

“No supporting real estate information was submitted; therefore, could not review title insurance, reserved rights, right-of-way etc.,” the Corps said.

The mine promoters apparently assumed that they would work all the details out later with Dunleavy, comfortable that he would approve.

Dunleavy has claimed in public comments to be neutral on the mine, but in private he has acted as if his administration is a division of the company. It is hardly surprising that he would have made unofficial assurances to Pebble about the future of the 112,445 acres without telling Alaskans of his decision.

On Sept. 21, the state Department of Natural Resources released this statement that concealed the collaboration and cooperation between the Dunleavy administration and the Pebble mine.

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