Alliance v. United States Forest Serv.

703 F.Supp.2d 1152

ROCK CREEK ALLIANCE; Clark Fork Coalition; Cabinet Resource Group; Montana Wilderness Association; Earthworks; and Alliance for the Wild Rockies, Plaintiffs,

v.UNITED STATES FOREST SERVICE; U.S. Department of Agriculture; Tom Tidwell, in his official capacity as Regional Forester for the Northern Region; Paul Bradford, in his official capacity as Forest supervisor of the Kootenai National Forest; and Ed Schafer, in his official capacity as Secretary of the U.S. Department of Agriculture, Defendants,andRevett Silver Company, Defendant-Intervenor.

Rock Creek Alliance, Cabinet Resource Group, Sierra Club, Earthworks, Alliance for the Wild Rockies, Natural Resources Defense Council, Trout Unlimited, Idaho Council of Trout Unlimited, Pacific Rivers Council, and Great Old Broads for Wilderness, Plaintiffs,

v.United States Fish & Wildlife Service, Defendant,andRevett Silver Company, Defendant-Intervenor.

Nos. CV 05-107-M-DWM, CV 08-028-M-DWM.

United States District Court,

D. Montana,

Missoula Division.

May 4, 2010.

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David K.W. Wilson, Jr., Reynolds Motl and Sherwood, Helena, MT, Roger Flynn, Western Mining Action Project, Lyons, CO, Timothy J. Preso, Douglas L. Honnold, Earth Justice Legal Defense Fund, Bozeman, MT, Todd D. True, Stephen D. Mashuda, Earth Justice Legal Defense Fund, Seattle, WA, for Plaintiffs.

Erik Edward Petersen, Gregory D. Page, U.S. Department Of Justice Lauren Beth Fischer, U.S. Department of Justice-E.N.R.D. General Litigation, Washington, DC, Leif M. Johnson, Office of the U.S. Attorney, Billings, MT, Michael Richard Eitel, U.S. Department Of Justice, Paul J. Lopach, Holme Roberts & Owen, LLP, Denver, CO, for Defendants.

Alan Lynn Joscelyn, Kevin D. Feeback, Gough Shanahan Johnson & Waterman, Helena, MT, Charlotte L. Neitzel, Robert Tuchman, Holme Roberts & Owen, LLP, Denver, CO, for Defendants/Defendant-Intervenor.

OPINION

DONALD W. MOLLOY, District Judge.

I. Introduction

The Plaintiffs in these consolidated environmental record review cases are a coalition of environmental advocacy groups led by the Rock Creek Alliance. They seek review under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, of federal agency actions and the associated planning documents relating to the approval of the Revett Silver Company's proposed mining operation near Rock Creek and the Clark Fork River in the Cabinet Mountain Wilderness on the Kootenai National Forest. The lead case, CV 05-107-M-DWM, names the United States Forest Service as the principal Defendant and advances claims under the Endangered Species Act (“ESA”) (Counts I and II ¹), the National Environmental Policy Act (“NEPA”) (Count III), the Clean Water Act and the Forest Service Organic Administration Act of 1897 (the “Organic Act”) (Count IV), and the National Forest Management Act (“NFMA”) (Count VI).² The planning documents challenged under the lead case are the 2001 Final Environmental Impact Statement, the 2003 Record of Decision, the Plan of Operations, the 2007 Determination Letter from Forest Supervisor Paul Bradford to Revett, and the three Supplemental Information Reports issued by the Forest Service in 2007. Revett is a permissive intervenor in the lead case. See Doc. No. 25.

The companion case, CV 08-28-M-DWM, also features the Rock Creek Alliance as the lead Plaintiff. The companion case alleges only ESA Section 7 claims and names the Fish and Wildlife Service as the Defendant. While there are ESA claims alleged in the lead case, it is through the companion case that the Plaintiffs launch their challenge to the Fish and Wildlife Service's “no jeopardy” findings with regard to ESA-listed grizzly bears and bull trout. Count I of the Complaint in the companion case alleges an ESA Section 7 claim relating to grizzly bears, while Count II alleges a similar claim relating to bull trout. The planning documents challenged in the companion case are the 2006 Biological Opinion and 2007 Supplement issued by the Fish and Wildlife Service. Revett was allowed to intervene as a matter of right in the companion case. See Doc. No. 16 in CV 08-28-M-DWM.

In both cases, the Plaintiffs ask the Court to declare that the agencies have violated the relevant statutes and to enjoin them from authorizing any activity relating to the mine until they have complied with all applicable statutes and regulations. Plaintiffs also seek an award of reasonable fees, costs, and expenses, including attorney's fees. The cases are ripe for resolution on all parties' cross motions for summary judgment.³

The Court heard oral argument on the pending summary judgment motions at a hearing on March 17, 2010, and issued a dispositive Order on March 29, 2010, 2010 WL 1287604. This opinion sets forth the Court's reasoning.

II. Background

A. The Rock Creek Mine Project

The Rock Creek Mine Project is a proposed underground copper and silver mine located near Noxon, Montana, on 1,560 acres consisting of 749 acres of private land and 811 acres of national forest lands within the Rock Creek drainage. 05-107 AR 91A-2 at 2-3.⁴ The projected “potential area of disturbance” covers 482 acres, including 140 acres of national forest lands. Id. at 3. The project will involve construction of a preliminary evaluation adit, followed by an underground copper and silver mine, a mill/concentrator complex, water lines, waste lines, power lines, a tailings paste plant and storage facility, a wastewater treatment facility, and a railroad loadout facility. Id. at 7-9. The planned mine is to be constructed using the “room-and-pillar” method, whereby pillars of ore will be left intact to support the rock ceiling above a mined room. Id. at 9. The planned life span of the mine, from evaluation to reclamation, is 30 to 37 years. Id. at 3. The stated purpose and need for the project is to “construct, operate, and reclaim all facilities necessary to mine, remove and transport economically mineable minerals from the Rock Creek deposit.” Id. at 1.

Revett owns 99 patented lode mining claims covering 1,686 acres within and 123 acres adjacent to the Cabinet Mountain Wilderness. 05-107 AR 91A-2 at 2. Revett also holds 189 unpatented lode mining and mill site claims and/or tunnel site claims and owns 754 acres of private land within the project area. Id. at 10. These claims were acquired by Revett (formerly Sterling Mining Company) from ASARCO, which had earlier acquired the property rights from original holder Bear Creek Mining Company. 05-107 AR 88-2 at 1-3. The ore reserves that Revett has proposed to mine under the Rock Creek Project are contained in the company's 99 patented claims. 05-107 AR 91A-2 at 10.

The mine project has been approved to take place in two phases. Phase I consists of the construction of an evaluation adit; Phase II would involve construction of the mine and related facilities, and later reclamation. 05-107 AR 91A-2 at 6-7. The planned evaluation adit is a 6,700 foot-long shaft measuring 20 feet high by 16 to 18 feet wide and requiring 18 to 24 months to complete. 05-107 AR 130-27 at 2-4, 2-9. The purpose of the evaluation adit is to gather information about the orebody as well as data on ground water quality and water flow, geochemical data, and rock mechanics data. 05-107 AR 91A-2 at 7. During Phase I, support facilities would be constructed both at the adit site and several miles off-site on Revett-owned land. Facilities proposed for the adit site include a temporary steel shop building, two propane generators, and an above-ground propane tank. 05-107 AR 88-2 at 2-98. Construction on Revett's land would include office trailers, a garage and warehouse, a water treatment facility, lined ponds, an employee parking lot, and a 500-gallon above-ground fuel tank. 05-107 AR 130-27 at 2-4, 2-7, 05-107 AR 88-2 at 2-95 to 2-100. The adit would be accessed by existing roads and employ a maximum of 45 workers. 05-107 AR 130-27 at 2-4. The evaluation adit is expected to disturb 8.3 acres of land. 05-107 AR 88-2 at 2-98.

Phase II, the construction and operation of the mine, may not begin until after the evaluation adit is complete and Revett has submitted relevant empirical data to the Forest Service and updated its Plan of Operations accordingly. 05-107 AR 91A-2 at 8. Before going forward with Phase II, Revett must submit and receive agency approval of modified and/or updated reclamation and monitoring provisions for its Plan of Operations. Id. The company must also submit a reclamation performance bond and final design and mitigation plans to be implemented during mine construction. Id. The Record of Decision calls for the responsible agencies to conduct a technical panel review of the information obtained during the evaluation adit to determine if the data is consistent with conclusions reached in the Final Environmental Impact Statement, and to order any additional studies that the agencies deem necessary. Id. Revett must also implement reasonable and prudent mitigation and conservation measures and adhere to terms and conditions contained in the 2006 Biological Opinion and 2007 Supplement, and must implement all mitigation and modifications outlined in Alternative V of the Final Environmental Impact Statement and the Record of Decision. Id.

Revett's myriad obligations to take future action based on the information obtained from the evaluation adit substantiate that the Forest Service's 2003 Record of Decision is not the final step in agency approval of Phase II. The Record of Decision states:

The agencies have determined the information collected to date is adequate and do not expect any new circumstances or different results from future monitoring data. If agencies' review of the evaluation adit information leads them to determine there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts, the agencies will

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