What Money Cannot Measure: What the Kuskokwim Means to the People Who Live There

The Kuskokwim River is not scenery. It is not a resource waiting to be monetized. For Alaska Native communities in the Yukon-Kuskokwim region — communities like those represented by Orutsararmiut Native Council, Chevak Native Village, and Native Village of Eek — the Kuskokwim and its tributaries are the organizing fact of life. The river is where food comes from. Salmon and other fish are not a dietary supplement; they are the diet. They are also the economy, the calendar, the reason families gather, and the thread that connects living people to ancestors who fished the same waters for millennia.

When the court writes, in dry legal language, that “the Kuskokwim and its tributaries are also of vital importance to local tribes for subsistence, social, economic, and spiritual purposes,” it is compressing something enormous into a subordinate clause. What it means in practice is this: if the water is poisoned, people do not just lose access to a recreational amenity. They lose the ability to feed their children. They lose ceremonies. They lose the knowledge systems embedded in seasons of fishing and harvesting that cannot be recovered from a textbook. They lose the landscape their identity is built on.

The tribes who brought these lawsuits were not asking the court to stop gold mining everywhere. They were asking for something much simpler: that before the state hands a corporation the right to drain their river and run a pipeline through their region, the state has to look at the full picture of what will be left behind. They were asking to be included in the decision about what happens to the place they have called home since before the concept of a state permit existed.

The court said no. It said the state’s constitutional duty to the public applies to public resources, and since the gold underground technically belongs to private Alaska Native corporations, the state does not have to weigh the downstream consequences of digging it out. The legal logic is tidy. The human consequence is not.

Consider what the mine’s own environmental impact statement describes as the post-mining future: a pit approximately 1.9 miles long, 1.2 miles wide, and 1,310 feet deep, filling over decades with water contaminated by heavy metals leached from mining waste. That water will eventually threaten to overflow into Crooked Creek, a tributary of the Kuskokwim watershed. To prevent this, the mine operator must pump and treat that water forever. Not for 20 years. Not for 50 years. Forever. The families who live downstream from Crooked Creek will be living next to a permanent toxic lake that requires industrial management in perpetuity to keep from poisoning their river. And the decision to create that lake was approved through a process that, by the court’s own ruling, was not required to ask whether creating it was worth it.

The betrayal here is layered. The lands being mined were selected by Alaska Native corporations under the Alaska Native Claims Settlement Act, which was the government’s way of settling Native land claims after centuries of dispossession. Those lands were meant to be an economic foundation for Alaska Native communities, not a liability to be extracted from and abandoned. The tribes bringing these lawsuits are not opposing Alaska Native land rights. They are opposing the conversion of those lands into a sacrifice zone that permanently alters the water everyone downstream depends on, without any legal requirement for the state to weigh that cost before issuing the permits that make it all possible.

The people who will pay the real price of this ruling are not the executives at Donlin Gold, LLC. They are not the investors. They are the people in the villages along the Kuskokwim who will watch the river that fed their grandparents become something they are told not to trust. That grief does not appear in a court filing. It does not have a dollar value. The legal system treated it as someone else’s problem to calculate in a different permit process.

In Their Own Words: What the Court Actually Said

These are direct quotes from Alaska Supreme Court Opinion No. 7794, decided November 14, 2025. Read them carefully. They are the legal architecture the mine is built on.

“Because these are private resources, rather than state resources, the Department was not required to consider the cumulative impacts of their development when deciding whether to allow the use of state waters and access over state lands to develop the mine.”

• This is the ruling’s central logic: the state’s duty to analyze a project’s full environmental and social costs only applies to state-owned resources. Because the gold belongs to a private corporation, the state can hand over public water and public land access without ever calculating whether enabling the mine is worth it for the public.
• This creates a legal gap wide enough to drive 556 million short tons of ore through: every major environmental consequence of the mine happens on the private land side, which the court says is none of the state’s business at the permit stage.

“When active dewatering of the pit stops, the pit will fill with precipitation, runoff, and groundwater, and the entire pit from both mines areas will later receive water from the tailings storage facility over a 52-year period. Eventually, if left uncontrolled, the water level of the pit lake will rise high enough that water will spill over into the adjacent Crooked Creek watershed. Pumping will be required in perpetuity to ensure the lake’s water levels do not overtop its banks. This is because the water will have high levels of heavy metals due to contact with mining waste, and will have to be treated in perpetuity to protect downstream lands, waters, fish and wildlife, and people.”

• This is not an environmental activist’s worst-case scenario. This is the court’s own summary of Donlin’s own environmental impact statement. The mine will leave behind a contaminated lake requiring industrial management forever.
• “In perpetuity” appears twice. This is an admission that the environmental obligation created by this mine has no end date. Whoever lives downstream from Crooked Creek in 100 years is inheriting this problem.
• The court is aware of this and still rules that the state was not required to factor it into the permit decision. The pit lake’s fate is relegated to a separate reclamation permit process that was not challenged in this appeal.

“The proposed mine site sits on lands owned primarily by two Alaska Native Corporations… These lands are part of the Kuskokwim River watershed, which is of great cultural importance to Alaska Native communities that have resided in the Yukon-Kuskokwim region for millennia.”

• The court acknowledges the cultural and historical weight of this land in the same opinion where it rules that weight cannot be factored into the permit analysis. The acknowledgment and the ruling exist in the same document without apparent tension.
• The tribes asking for a full cumulative impacts review are the descendants of the communities the court just described as having lived there for millennia. They are not outside parties raising theoretical concerns.

“Requiring the Department to use its discretion to determine whether development of the Donlin mine provides the maximum benefit to Alaskans would be especially dubious given the history of the lands that would be mined. These lands were chosen by ANCSA corporations as compensation for the loss of Alaska Natives’ aboriginal title to their ancestral territories.”

• The court uses the ANCSA land-rights framework to argue against requiring a full public interest review. The logic: since these lands were compensation to Native peoples, subjecting development to a full public interest test would inappropriately constrain Native corporations’ use of their own assets.
• This reasoning sidesteps the fact that the tribes bringing the lawsuit are not the same Alaska Native corporations that own the land. The corporations (Calista and the Kuskokwim Corporation) are the developer’s partners. The tribes are the downstream communities who will live with the consequences.

“Neither the statute governing rights-of-way for pipelines nor the statute governing water appropriations required the Department to consider the downstream effects of mining activity made possible by the permitted activities. Those downstream effects are evaluated and regulated under other statutory frameworks, such as those for reclamation of lands used for mining and for discharge of pollutants into state waters.”

• The court’s answer to the cumulative impacts problem is: other permit processes handle it. The reclamation permit handles the pit lake. The pollution discharge permit handles contaminated water. Each process handles its narrow slice.
• What the court does not address: whether any single permitting process is ever required to look at the full picture of what the mine does. The design of the system distributes responsibility so thoroughly that no one agency, at any permit stage, is required to ask whether the whole operation is worth it.
• ONC challenged this exact fragmentation. The court ruled that fragmentation is acceptable because the legislature designed it that way and article VIII of the Alaska Constitution does not compel integration when the core resource being developed is private.

The Full Damage: What This Ruling Enables

Environmental Degradation

The environmental consequences described in the court record are not hypothetical. They are planned and documented by the mine’s own environmental impact statement.

• The mine pit will be 1.9 miles long, 1.2 miles wide, and 1,310 feet deep. That is not a hole in the ground. That is a permanent alteration of the landscape of the Kuskokwim River watershed, one of Alaska’s most ecologically significant river systems.
• Surface waters will be impounded and diverted. Groundwaters will be pumped continuously for the 27-year life of the mine to dewater the pit. The 12 water rights permits authorize this systematic removal of water from the watershed during the entire operational period.
• The mine’s tailings storage facility, located south of the mine, will hold the byproduct waste from processing 556 million short tons of ore. A tailings dam failure in a watershed like the Kuskokwim would be a catastrophic, irreversible contamination event for the entire downstream river system.
• After mining ends, the pit fills over a 52-year period with water from the tailings storage facility. This water will contain high concentrations of heavy metals from contact with mining waste. Without permanent mechanical intervention, this lake overflows into Crooked Creek and then into the Kuskokwim system.
• The pipeline alone crosses nearly 600 streams between Cook Inlet and the mine site. Each crossing is a point of potential spill risk during both construction and the pipeline’s operational life. The pipeline runs 315 miles through some of the most remote and difficult terrain in Alaska, including sections near active faults that cannot be buried.
• The ruling means no single state permitting process was required to weigh all of these impacts together as a unified cost when deciding whether to grant the state resources that make the mine possible. Impacts are distributed across separate statutory frameworks, and the court has confirmed that is legally acceptable.

Public Health

The health risks from this mine are downstream, long-term, and borne almost entirely by communities that have no economic stake in the gold being extracted.

• Contaminated pit lake water contains heavy metals. If pumping and treatment fail at any point in perpetuity, those metals enter Crooked Creek and eventually the Kuskokwim River. The communities along the Kuskokwim rely on that river for drinking water and subsistence food. Heavy metal contamination of salmon and other fish is a direct public health threat with documented neurological and developmental consequences, particularly for children.
• Contact water, defined in the EIS as “surface water or groundwater that has contacted mining infrastructure,” must be managed across the site during the mine’s operational life. Failures in the seepage recovery system or the contact dams could release contaminated water into the watershed during active mining, not just after it closes.
• Increased barge traffic on the Kuskokwim during the construction and operational phases brings fuel spill risk to a river already essential for subsistence fishing. The mine plan calls for a new port, expanded barge facilities in Bethel, and fuel terminals in Dutch Harbor, all of which increase the volume of hazardous materials moving through the watershed.
• The Water Use Act requires the Department to consider “the effect on public health” when issuing water rights permits. The court found that this factor refers to the effect of removing water from the source, such as reduced flows affecting drinking water availability, not the downstream health consequences of the mining the water enables. Health consequences from the pit lake are assigned to the reclamation permit process and the pollution discharge permit process, neither of which was challenged in this appeal.

Economic Inequality

The economic structure of this mine concentrates the profits and disperses the costs in a pattern that follows existing lines of power and dispossession.

• The mine is projected to produce 30 million ounces of gold over its 27-year operational life. The economic beneficiaries of that production are Donlin Gold, LLC and its investors, along with Calista Corporation as mineral rights holder. None of the downstream tribal communities that brought these lawsuits have an economic stake in the gold production.
• The cost of treating the contaminated pit lake water falls on whoever operates the mine after closure and, if that obligation is not met, on the public. The reclamation bond requirement is intended to cover closure costs, but bonds are set based on estimated closure costs, and the definition of “in perpetuity” means the actual cost has no ceiling and no end.
• The tribes who fought these permits spent over a decade in legal proceedings, through agency appeals, superior court battles, and a Supreme Court appeal. They had representation from Earthjustice, a nonprofit legal organization. Donlin Gold was represented by Perkins Coie LLP. The State of Alaska brought its own legal team. The resource disparity between the parties in this litigation mirrors the resource disparity in the underlying economic relationship.
• The pipeline right-of-way lease allows Donlin to build a 315-mile natural gas pipeline across state land at the cost of a lease, not the market cost of acquiring 207 miles of state land. The pipeline is also structured as a contract carrier, meaning Donlin can sell gas transport to other users. The state’s land enables a private for-profit infrastructure asset.
• The ruling sets a precedent: any extraction project on private land that happens to need state water rights or a right-of-way across state land can proceed without the state performing a cumulative impacts analysis on the full project. This precedent applies statewide. It shapes the economics of every future mining permit application in Alaska.

The Scale of What Is At Stake

Who Is Accountable and What You Can Do

The Alaska Supreme Court has spoken. The legal avenue used in this case is closed. The question is who holds power over what happens next, and how to reach them.

Decision-Makers on Record

• John Boyle, Commissioner of the Alaska Department of Natural Resources. His office approved both the water rights permits and the pipeline right-of-way lease. The permitting decisions made under his authority are what the tribes challenged. His office continues to oversee ongoing permitting for the Donlin project.
• Treg Taylor, Attorney General of the State of Alaska. His office defended the Department’s permitting decisions at every level of this litigation.
• Donlin Gold, LLC leadership and its parent company investors. Donlin Gold is a joint venture; its backers have the capital and the economic interest in seeing the mine built.
• Calista Corporation leadership. As the mineral rights holder and an active appellee in this case, Calista is a direct partner in the mine development and a necessary party to any negotiated resolution.
• The Alaska State Legislature. The court explicitly noted that the legislature has the power to change the statutory frameworks at issue. The legislature could amend ROWLA, the Water Use Act, or the Reclamation statutes to require integrated cumulative impacts review. It has not done so.

Regulatory Watchlist

• U.S. Army Corps of Engineers: The lead federal agency for the Donlin mine’s Environmental Impact Statement under NEPA. Federal permits including Section 404 dredge-and-fill permits are still required. Federal agencies remain the primary avenue for cumulative impacts analysis that the Alaska state process has now been confirmed to exclude.
• U.S. Environmental Protection Agency (EPA): The EPA oversees the NPDES program and has the authority to review and object to state-issued APDES discharge permits. EPA’s existing role in the Donlin permitting record includes the 2008 authorization of Alaska’s NPDES delegation.
• Alaska Department of Environmental Conservation (DEC): Issues APDES discharge permits, Clean Water Act Section 401 certifications, and general stormwater permits for the Donlin project. These permits are separate from those challenged in this case and remain in process.
• Alaska Department of Fish and Game (ADF&G): Issues fish habitat permits for activities affecting anadromous fish streams. The Kuskokwim is salmon habitat. Fish habitat permits for the mine have not been resolved and represent an active permitting lever.
• Bureau of Indian Affairs (BIA) / Department of the Interior: Federal trust responsibility to Alaska Native communities is a legal framework that operates independently of state permitting. Tribal consultation requirements under federal law may provide additional grounds for challenge on federal permits.

Direct Action and Mutual Aid

• Support Earthjustice Alaska. They represented the tribal appellants pro bono through a decade of litigation. Future federal permit challenges for Donlin will require the same legal resources. Earthjustice can be found at earthjustice.org.
• Support the tribal organizations directly. Orutsararmiut Native Council, Chevak Native Village, Native Village of Eek, Native Village of Kwigillingok, and Cook Inletkeeper are the organizations that fought this case. They need resources to continue advocacy, monitoring, and community legal defense work.
• Demand federal cumulative impacts review. Contact your U.S. Senators and Representative to demand that the Army Corps of Engineers perform a rigorous, integrated cumulative impacts analysis of the full Donlin mine proposal before issuing any federal permits. The state has declined to do it. The federal process is where this fight moves next.
• Engage the Alaska Legislature. The court ruled that the legislature has the power to require cumulative impacts review and has chosen not to. Legislative pressure to amend ROWLA and the Water Use Act to require integrated review of private projects using state resources is the statutory fix the court left open.
• Organize locally around water rights. This ruling is not limited to Donlin. It establishes that any private project on private land that uses state water or crosses state land is exempt from whole-project environmental review under the Alaska constitution. Every watershed community in Alaska has a stake in challenging this precedent at the legislative and federal levels.