The Ninth Circuit Court of Appeals has upheld an order of the U.S. Environmental Protection Agency’s (EPA’s) Environmental Appeal Board (EAB) dismissing challenges filed by the Native Village of Kivalina IR A Council and other Native American and environmental groups to a water discharge permit for operation of an Alaska open pit lead and zinc mine known as Red Dog Mine. Native Vill. of Kivalina IRA Council v. EPA, No. 11-70776 (9th Cir. 8/9/12).

Kivalina initially filed the appeal challenging discharge effluent limitations included in the permit and other issues. After Kivalina filed its appeal before the EAB, EPA withdrew the challenged effluent limits. EAB and the Ninth Circuit held that EPA’s withdrawal of the limits rendered those aspects of the Kivalina appeal moot. Kivalina pursued the remaining challenges, which asserted that, in the final permit, EPA improperly reduced monitoring frequency, removed biomonitoring provisions and failed to require third-party monitoring.  

Each of the claimed permit issues was raised in public comments on the draft environmental impact statement (EIS ), and EPA provided a response to each of those comments in the final EIS . According to the Ninth Circuit, the challenger’s petition simply reiterated the comments’ substance without explaining how EPA’s responses were irrelevant, erroneous, insufficient, or an abuse of discretion, as required by EPA’s permit appeal rules. Thus, the court held that the portions of the petition not rendered moot by EPA’s changes from a draft to the final permit were insufficiently described to support an EAB appeal.