January 31, 2018
Tim La Marr, Central Yukon Field Manager
Ambler Road Scoping Comments
Anchorage, Alaska 99513
Re: Notice of Intent to Prepare an Environmental Impact Statement for the Proposed Ambler Road Project
Dear Mr. La Marr:
I am writing to you on behalf of over 1,400 members of the Coalition to Protect America’s National Parks (Coalition), a non-profit organization composed entirely of retired, former, or current employees of the National Park Service (NPS). The Coalition studies, educates, speaks, and acts for the preservation of America’s National Park System. As a group, we collectively represent more than 35,000 years of experience managing and protecting America’s most precious and important natural and historic places. We count among our membership former employees of Gates of the Arctic National Park and Preserve (GAAR).
We are writing in regard to the Alaska Industrial Development and Export Authority (AIDEA) consolidated SF-299 Right-of-Way (ROW) application to the NPS, Bureau of Land Management (BLM), U.S. Coast Guard, and U.S. Army Corps of Engineers for the Ambler Mining District Industrial Access Project.
As described in the Federal Register Notice for the project, BLM is preparing “an Environmental Impact Statement (EIS) for Federal authorizations to construct and operate an approximately 211-mile long industrial access road in the southern Brooks Range foothills of Alaska, originating at the Dalton Highway in the vicinity of Prospect Creek and terminating at the Ambler Mining District, which would not be open for public access (emphasis added).”
The permit application, if approved, would enable access to deep pit mining in the headwaters of the Kobuk River in the Ambler Mineral Belt, a district located at the edge of the boundaries of four units of the National Park System. The proposal, if approved, would authorize construction of a gravel road – the type of access that most threatens the distinctive subsistence way of life and wilderness values in this country. This “road” would be constructed and operated in three phases: First, a “pioneer” gravel path; then a one-lane gravel road; and, at some point, as a two-lane facility located directly on the boundary of the Gates of the Arctic Wilderness, considered by many as the most fully realized and remote designated wilderness in the National Park System.
The applicable law authorizing the Secretary of the Interior to issue a permit for such a ROW is the Alaska National Interest Lands Conservation Act (ANILCA), specifically §201(4), Establishment of Gates of the Arctic National Park and Preserve, and TITLE XI, Transportation and Utility Systems In and Across, and Access Into Conservation System Units. In short, the provisions in the Act are clear that – other than providing a very limited permission for mining access across the Gates of the Arctic National Preserve and the Kobuk National Wild River for surface access between “the Ambler Mining District” and “the Alaska Pipeline Haul Road” – no other applicable laws or policies may be relaxed when evaluating its issuance.
Our comments below seek to address the adequacy of the application, description of the environment, identification of alternatives, scope of the review, and proposed terms and conditions.
1) The ROW application is incomplete: The ROW application does NOT provide sufficient information to be the basis of environmental analysis or scoping. Obvious gaps in information raise doubts about the applicant’s ability to finance, design, build and operate the transportation system proposed. For example, AIDEA states that the companies mining in the Ambler Mining District, not the State of Alaska, would pay for the Ambler Road. AIDEA also stated they have no lenders at this time.
As context, the world copper market is notoriously erratic, and the costs of building and maintaining any suitable mode of transport in the Arctic, of developing the mine, of concentrating the ore, and of completely mitigating the massive subsistence and environmental impacts of such an operation will be enormous. The consultants’ reports made public at this time give the impression that this operation may not be economically viable, because at no time do the consultants calculate all the costs that the existing law and this operation will require.
Before proceeding further with the EIS process, BLM should require the applicant to demonstrate an economically feasible project with bonding, viable loans and collateral for repayment, i.e. credit worthiness. BLM should require the applicant to show the ability and capacity to design, build and operate the transportation system proposed. Concrete and convincing evidence needs to be provided from the mining companies that show that their proposed mining operations in the District will produce the revenue to pay for the full financing and costs of the proposed Ambler Road – costs for engineering, permitting, construction, insurance, bonding, operation, as well as the commitment for removal and complete reclamation. In brief, if BLM continues the EIS process without requiring adequate documentation of the feasibility of the proposed action, the entire public process will have been a waste of state money, federal staff time, and the public’s time.
There are numerous other data gaps in the application, such as the extent and level of the proposed use of the road. How many ore trucks per day or hour would be traveling the road during the height of migration? What are the existing ‘best available technology’ standards for conducting and rendering open pit copper mining without destroying the subsistence sheefish (Stenodus leucichthys)  and salmon fishery? What is the nature, scope, scale and impact of operations on the road necessary to support the thousands of employees involved in mining operations?
The project cost estimates are not adequate, because they fail to estimate the realistic compliance needs to meet the standards of the prevailing law, including what should be unavoidable mitigation under §810 of ANILCA.
None of the mineral studies made public indicate whether, for example, the revenue the mining companies would make from the ore will be sufficient to pay for a vast roadway maintenance and restoration challenge and pay the costs of preventing waste and drainage from toxic ore pits from destroying the wilderness species in the Kobuk River. As a result, there is no way to assess the risk to Alaskan and federal taxpayers to ultimately pay the costs of healing a damaged region if copper prices collapse.
The proposal claims none of the people with jobs in the mines or on the road would hunt or take the animals the local people use. While we strongly support this provision, there is no mechanism described for how this would be enforced, especially when the BLM and the NPS and other land managers would have to work through AIDEA to take care of problems that would likely occur.
These and other data-gaps must be addressed adequately by the applicant for BLM to effectively analyze project impacts or to make an informed decision to ultimately issue a ROW permit with appropriate terms and conditions. Lacking such information, it is impossible to identify alternatives or propose mitigation when the project outlines are so incomplete.
2) AIDEA is NOT the appropriate holder of the ROW: As proposed, BLM and the NPS would be out-sourcing their management responsibilities to AIDEA, a state financing corporation. AIDEA is fundamentally a public financing corporation with multiple programs and commitments. Its financial reserves may at any time be demanded by and for other state priorities. While involved in financing other notable projects, AIDEA has no first-hand experience actually constructing or managing an operation of this scale. For example, the Alyeska pipeline was managed by a consortium of oil and pipeline companies. Those companies had a long history of experience and expertise, and were knowledgeable of what existing technologies or practices would work in Alaska.They also knew what they did not know, and knew how to design new practices properly and safely.
The situation involving the Red Dog Mine illustrates our concerns about AIDEA being the permittee for the Ambler Industrial Road proposal. Despite the comparative simplicity of the Red Dog project, the U.S. Environmental Protection Agency (EPA) recently was forced to intervene in Red Dog mining operations to prevent continued, excessive polluting of Alaskan waters by Red Dog operators. In this case, AIDEA did not act well enough or soon enough to protect Alaska’s fragile northern waters. We have concerns about their capability, as the applicant, to oversee the massive proposed Ambler Road project, including ensuring compliance with all applicable requirements such as terms and conditions of a ROW permit.
To assure proper accountability and future compliance with the permit for the Ambler Road project, the applicant(s) should be changed from AIDEA to the mining and transportation company(s) that will actually do the work and operate the road. Only in that way can the project viability – and the claimed level of protection and compliance – be assured.
The mineral companies that would mine and transport the ore have already been identified. The ROW permit can and should be assigned to the mineral company(s), restricted to mineral purposes only; or, as was the case with Alyeska, permitted to a consortium of mineral companies.This approach would be most consistent with the intent of the ANILCA § 201(4)(b) and (c), envisioning the operator as the applicant.
3) The proper applicant should provide evidence of feasibly, sustainably, and existing wherewithal to bear all maintenance and restoration costs: No ROW should be issued if the mining companies/users have not demonstrated in advance the capability – through bonding, or loan guarantees by banks or other such sureties or conventional guarantees of good practice – of paying for design, development, permitting, maintenance, remediation and complete restoration.
No U.S. Army Corp of Engineers Section 404 Wetlands Permit or BLM or NPS ROW permit should be issued without this evidence. Any failure of performance would create enormous liabilities for the federal agencies. If an unsustainable or undercapitalized effort of this magnitude and risk fails, taxpayers will be on the hook for environmental remediation costs. In short, BLM cannot gamble that the mining operators or financiers are following all the roadway rules. BLM must certify the financial foundation and environmental capacity of the mining and roadway operators in advance.
4) The Project Fails to Consider a Range of Reasonable Management Alternatives: Given the information gaps in the ROW application (see Comment # 1 above), it will be difficult for BLM to prepare a proper analysis of the potential environmental impacts of the project. Such an analysis should include a “range of reasonable alternatives” as required by the Council on Environment Quality regulations for implementing the National Environmental Policy Act (NEPA). Specifically, 40 CFR Section 1502.14 of those regulations requires the environmental analysis to:
(a) Rigorously explore and objectively evaluate all reasonable alternatives
(b) Devote substantial treatment to each alternative considered in detail including the proposed action so that reviewers may evaluate their comparative merits.
(c) Include reasonable alternatives not within the jurisdiction of the lead agency.
(d) Include the alternative of no action.
(e) Identify the agency’s preferred alternative or alternatives, if one or more exists, in the draft statement and identify such alternative in the final statement unless another law prohibits the expression of such a preference.
(f) Include appropriate mitigation measures not already included in the proposed action or alternatives.
In preparing a draft EIS (DEIS), BLM should consider management alternatives that include alternative modes of travel (including rail), as well as alternative route locations. Mitigation measures should be considered that include temporal and spatial restrictions on road use that would avoid or minimize adverse impacts of road traffic during caribou herd migrations.
BLM should consider more than one route and take-off point on the Dalton Highway. Additional crossings of the Gates of the Arctic National Preserve to the two under consideration should be identified and considered. The proposed northern route would unacceptably undermine the wilderness purposes and values of the National Park by locating the route immediately adjacent to the wilderness boundary and Walker Lake, one of the largest wilderness lakes in the National Park System. A road constructed in this location would compromise opportunities for wilderness recreation and lead to the loss of wild and undeveloped character, the loss of solitude, and the loss of scenic and environmental integrity.
The outflow area directly south of Walker Lake is a popular put-in place to prepare for wilderness float trips down the Kobuk River. These trips are promoted around the world as the area is renowned for its scenic beauty and solitude. The potentially significant impact of wilderness visitors confronting heavy ore truck traffic during this experience must be fully assessed in the DEIS.
The DEIS must identify and evaluate access to the Ambler Mining District by other, less impactful modes of transportation – railroad, aircraft, barge, boat, etc. For example, the DEIS should consider a railroad alternative that ties into the existing infrastructure in Fairbanks compared to one that transports ore to a trucking transfer station on the Dalton Highway. Though initially much more expensive, haul costs of heavy mining equipment and ore would be far less expensive over the long term.
BLM should evaluate the use and associated impacts of the Kobuk Wild River as a route to transport ore out of the area. And also evaluate a route from Nome or Kotzebue Sound rather than from the east. AIDEA in that case DOES have useful experience with water transport.
Consider a more southerly route that ties directly into the NPS southerly alternative in the Gates of the Arctic National Preserve. A better route exists there in consideration of soils, asbestos and rock material. River crossings may be fewer, but more manageable and controllable. A more southerly route could also avoid areas with naturally occurring asbestos.
Consider the effect of the proposed gravel road crossing numerous streams. These streams constantly change banks and riverbeds. A gravel roadway can be like a dam when these rivers and streams change routes and overtop their banks as they do. The scale of this challenge will far exceed anything experienced at Red Dog or even the Alaska Pipeline because those routes largely parallel rivers and watersheds, while this one as proposed will cross numerous tributaries of the Koyukuk River, the John River, the Alatna River, and the Kobuk River.
Consider the impacts of rapid global warming taking place in northern Alaska on the design, construction, maintenance, and eventual restoration of the roadway.
As proposed, the proposed roadway presents challenging slopes, often as steep as 9% grade. Assess the difficulty of maintaining such a gravel roadway as proposed, the secondary impacts through erosion and degradation likely from such a design, and the challenge of the removal and complete restoration of such a roadway. Assess the additional fuel requirements of heavy trucks climbing up and down so many extreme slopes, and the secondary impact on air quality.
Consider what additional damage to the Dalton Highway would result from the volume of heavy ore trucks necessary to make the gigantic costs of mining the Ambler belt economical.
The State of Alaska has claimed that historic roadways exist from the Kobuk River south, entirely avoiding the National Preserve, and from Hughes to Tanana. This is one of several southerly routes that should be considered in order to avoid massive impacts on migrating caribou. Such a route may have other advantages as well.
Last, the proposed ROW would go to one mine in the Ambler Mining District. What further impacts would occur when other roadways, feeder roads, social trails, to other mines are made? What further reviews and permitting would take place? In order to avoid “segmenting the project,” the DEIS should identify and analyze reasonably likely scenarios for future expansion of the road network.
5) The DEIS should address the cumulative, comprehensive impacts of the road and development enabled by the industrial haul road: As the saying goes, “If you build it, they will come.” Once the road is built, there will inevitably be pressures to open it up for other uses (other than mining access) that are not authorized under the applicable provision in ANILCA. Even if restricted only to mining access, as it should be, construction of the road will have a ripple effect of impacts on the region. For example, the project description assumes that more jobs will be created than the entire combined population of all the nearby villages. The social effects must be evaluated of such a population surge from outsiders without the sensitivity to local ecosystems or way of life. The likely alternative economic and social impacts to the local subsistence way of life should be evaluated. The subsistence culture could be irreparably harmed or extinguished. Any benefits from copper-lead-zinc-gold-silver mining could be of limited term. Potential impacts to local communities after mining ends should be fully assessed.
6) Justification for approving the ROW permit differ by Agency and should be explained in the DEIS: While NPS is governed by Section 204 of ANILCA for the Gates of the Arctic National Preserve portion of the proposed road, BLM is not. BLM, in fact, has discretion to approve or not approve a ROW permit for the Ambler Road; and BLM does NOT need to approve this ROW if it is not economically feasible or for other reasons. We hope that BLM’s eventual decision to approve or not approve the permit for the portion of the road that would cross BLM lands will be based on proper application of BLM statutes and policies, including the Federal Land Policy and Management Act (FLPMA) and not based on the mistaken belief that BLM is somehow REQUIRED under ANILCA to allow the road, which it is not.
7) A Section 106 analysis and consultation is required: The proposal lacks a description of necessary compliance with National Historic Preservation Act (NHPA) and State cultural resource preservation requirements. Compliance in this case means comprehensive survey, government to government consultation, evaluation of every site for National Register eligibility, identification of cultural landscapes, long-term preservation plans, site data recovery where rerouting not feasible. Given the scope of the project and lack of much prior work, this compliance will require a substantial amount of attention.
8) A Section 810 subsistence analysis is required: A thorough subsistence analysis must be also prepared as required by Section 810 of ANILCA. Unlike Native Alaskans in coastal areas, in the deltas, or along the major rivers of Alaska, the peoples sustained by the Western Arctic Herd Caribou have developed an inland subsistence system. Those potentially impacted by the proposed road include both the Nunamiut or mountain people stretching across the central Brooks Range and down the John River Valley; and the Kuuvanmiut and woodland peoples of the Kobuk and Alatna and the Koyukon Athabascan people, who include Allakaket and Evansville. The vulnerability of these people is the species most likely to be damaged by the ore haul road and the mining, sheefish in the Kobuk, and the barren-ground caribou of the Arctic Herd.
9) Suggested Terms and Condition for ROW Permit: We recommend the terms and conditions below be included in any ROW permit that may be approved in order to minimize adverse impacts on the local rural way or life and on the natural resources and parklands in the vicinity. For all the recommendations below, consider in the DEIS the alternative impacts of including or excluding these recommendations, mitigations and ameliorations:
- Provide only a permit for a Right-Of-Way, no interest in lands. That is the intention of the law, and the only way to manage to avoid damage as Congress provides.
- Provide that the ROW is non-transferrable. Transferability will undermine accountability and compliance, and encourage deceptive ways to shut down operations in order to avoid compliance. It may be impossible to hold everyone accountable in the chain of holding the ROW. If a ROW with an interest in lands is created for BLM administered lands, this will exacerbate these problems, while the ROW by permit that the Congress provides for the Kobuk portion of the Gates of the Arctic National Preserve in ANILCA § 201(4)(b) will allow much easier management of conditions for all parties. If a ROW for BLM lands as an interest-in-land is considered, fully evaluate in the DEIS the potential impacts on the resources or local residents from a less responsive communication and management system.
- Require an annual performance plan and report among the terms and conditions, to assure compliance.
- Terms and condition of the ROW permit will need to include a requirement for no use of the roadway, especially by ore trucks, during the caribou and wolf migrations, twice yearly.
- Provide further that this provision is to be included in an Annual Operations Plan, or Annual Performance Plan, governing full compliance. If the terms of the Operation Plan are violated, provide a system of warnings, suspension of operation, and ultimately for repeat and uncorrected violations, termination of the ROW permit.
- The BLM should require that a ROW permit be issued for a specific term commensurate with the anticipated period of viable mining operations.
- Limit the terms of the ROW permit to access directly related to mining of the Ambler mineral belt only. For the National Preserve, Congress already provided in ANILCA § 201(4)(b) for the ROW permit to be restricted to mineral access to the Ambler belt only.
- Provide that all management and compliance cost of the government agents be entirely born and guaranteed by the ROW permit holder.
- Prior to issuing the ROW permit, develop and approve a bonding and escrow system to assure that all costs are guaranteed.
- Provide a complete program in advance of issuing the ROW permit for full compliance with 1107, particularly for subsection (a)(2) the requires the “restoration, revegetation, and curtailment of erosion of the surface of the land.” Restoration in Arctic Alaska is difficult, and requires planning, resources, and professionalism. To verify that this program can in fact lead to the complete removal, restoration, and revegetation of the ROW, the program needs to be peer-reviewed and certified by an independent group. The escrow and bonding program, called for above, shall include in advance all costs necessary to implement this plan to be fully compliant with §1107.
- BLM needs to develop a plan that clearly requires restoration and includes the standards of what constitutes sufficient dismantlement, restoration and reclamation of the road corridor before approving the ROW. There would need to be a cost estimate provided by ROW applicant/roadway operator, and approved by the NPS and BLM.
- A Restoration Fund in Escrow needs to be Required and Created. The costs for restoration must be included in the tolls and retained in escrow. The ROW permit holder should be required to maintain those funds in an altogether separate escrow account so money would be available at the time restoration occurs.
- The applicant is proposing a phased development of road access, beginning with minimal road construction (a “pioneer road”), then an improved one lane road and lastly a two-lane road. It should be a built-in assumption of the terms and conditions for any issued ROW that the proposed two- lane road will ultimately be built, and the terms and conditions of the ROW must require the holder to do comprehensive mitigation from the start of construction. Anything short of these provisions is an invitation to the mine operator(s) to develop non-compliant access, cherry pick and remove the ore, declare bankruptcy, and leave either Alaskan and/or U.S. taxpayers to deal with cost of remediation and reclamation.
- Provide that if the mode of transportation authorized is not built within a set period of years of issuance of any ROW permit, the permit shall be reviewed and either terminated or, only provided subject to updated terms and conditions, and a further environmental analysis, revised to reflect all new information or technologies.
- Prior to issuing the permit, develop, review and approve a joint operation plan in coordination with the National Park Service, coordinating work and responsibility so that all terms and conditions, mitigations and ameliorations in this process are fully complied with.
- Provide that no public access from the Dalton Highway is permitted. Include as a condition of the permit, provision that no miners or operator’s employees will compete for subsistence hunting and fishing whatsoever with the local people.
- Provide for company disciplinary review for any employee violating these standards, and include in the company’s disciplinary review committees trained representatives of the local rural residents so that complete transparency while adhering to necessary confidentiality are maintained.
- Provide that no access be permitted during periods of caribou and wolf migrations through and across the proposed industrial roadway. This triggering mechanism for closures, upon notice by NPS or U.S. Fish and Wildlife Service authorities, should be incorporated into the Annual Performance Plan.
- If road is not built within a specified timeframe, retain the right to review and revise terms and conditions with any new data and to terminate the ROW permit.
- Law enforcement authority needs to be stated for the proposed ROW.
- Estimate the costs to State and federal governments for these basic services.
- Determine how emergencies, including spills and fire, will be handled and who will provide and be responsible for the costs of these services.
- Evaluate what additional power sources will be required and the impacts of transporting fuel or building an electric grid or natural gas pipeline, mining coal, etc. Further mitigation could be required once power source is identified.
- Terms and conditions should provide that no access is permitted during periods of caribou and wolf migrations through and across the proposed industrial roadway. This triggering mechanism should be incorporated into the Annual Performance Plan.
- Do not allow the sale, extraction or use of gravel from federal lands. My understanding of the DeLong Mountain Transportation System is that NANA sold gravel, from pits inside the legislative boundaries of Cape Krusenstern National Monument. The ROW holder should not be able to get paid for gravel it got rights for as part of the ROW they were granted. Terms should be clear the ROW will not convey surface or subsurface materials on federal lands.
In closing, we appreciate the opportunity to comment on this important issue.
Philip A. Francis, Jr., Chair
Coalition to Protect America’s National Parks
 Kobuk Valley National Park; Gates of the Arctic National Preserve; Noatak National Preserve; Gates of the Arctic National Park