Cabinets v. U.S. Fish & Wildlife Serv.

255 F.Supp.3d 1035

SAVE OUR CABINETS,Earthworks and Defenders of Wildlife, Plaintiffs,

v. UNITED STATES FISH AND WILDLIFE SERVICE, Christopher S. Savage, Kootenai National Forest Supervisor, and United States Forest Service, Defendants,andMontanore Minerals Corporation, Defendant–Intervenor.

CV 15-69-M-DWM.

United States District Court, D. Montana, Missoula Division.

Signed May 30, 2017

Katherine K. O'Brien, Timothy J. Preso, Earthjustice Legal Defense Fund, Bozeman, MT, for Plaintiffs.

Mark Steger Smith, Office of the U.S. Attorney, Billings, MT, Robert P. Williams, Environment and Natural Resources Divisions Wildlife & Marine Resources Section, U.S. Dept. of Justice, Nicole Marie Smith, U.S. Department of Justice–E.N.R.D. General Litigation, Washington, DC, Michael Richard Eitel, U.S. Department of Justice, Denver, CO, for Defendants.

Mark L. Stermitz, Daniela E. Pavuk, Crowley Fleck PLLP, Billings, MT, Robert Tuchman, Holme Roberts & Owen, LLP, Denver, CO, for Defendant–Intervenor.

OPINION and ORDER

Donald W. Molloy, United States District Court Judge

Plaintiffs Save Our Cabinets, Earthworks, and Defenders of the Wildlife (collectively "Plaintiffs") seek declaratory and injunctive relief under the Endangered Species Act ("ESA"), challenging determinations made by the United States Fish and Wildlife Service ("Fish and Wildlife Service") and the United States Forest Service ("Forest Service") (collectively "Federal Defendants") related to the Montanore Mine Project (the "Project" or "Mine") in northwestern Montana. Plaintiffs argue that Federal Defendants violated the ESA when they concluded that the Project will not jeopardize bull trout or grizzly bears or destroy or adversely modify bull trout critical habitat. Montanore Minerals Corp. ("Montanore"), the owner and operator of the proposed mine, intervened as a matter of right. See Fed. R. Civ. P. 24(a)(2). This case was considered at the same time as two other cases challenging agency action in connection with the Montanore Mine. See Save Our Cabinets v. U.S. Dep't of Agric., No. CV 16–53–M–DWM, and Libby Placer Mining Co. v. U.S. Forest Serv., No. CV 16–56–M–DWM. Although not consolidated, argument was heard on this case in conjunction with the consolidated cases on March 30, 2017.

For the reasons set forth below, the Forest Service motion for summary judgment on Count II is granted. On all other claims Plaintiffs prevail. The Project will be remanded to the agencies for consideration in light of this Order and Opinion.

BACKGROUND

I. The Montanore Mine Project

Montanore proposes to construct an underground copper and silver mine in the Cabinet Mountains Wilderness area ("the Wilderness") in the Kootenai National Forest, approximately 18 miles south of Libby, Montana. ConsDoc:867, 880.¹ Although the ore body is beneath the Wilderness, all access and surface facilities would be located outside the Wilderness. ConsDoc:880. In addition to surface facilities, including access and ventilation sites (adits), the Project would require constructing approximately 13.7 miles of electric transmission line, waste rock storage facilities, a wastewater treatment plant, wastewater holding and seepage collection ponds, pipelines for transporting water and mine tailings, and tailing storage facilities; paving and widening of approximately 13 miles of roads; and clearing of trees and vegetation. ConsDoc:867–80. The operating permit area is 2,153 acres and the disturbance area 1,565 acres. ConsDoc:867.

The Mine is to be constructed using the "room-and-pillar" method, whereby pillars of ore are left intact to support the rock ceiling. FS6–10.1:10647. As proposed, the Project would initially consist of 12,500 tons/day underground mining operation that would expand to 20,000 tons/day. ConsDoc:565. The Mine is set to operate 24 hours per day, seven days a week, for 350 days out of the year. Id.It is expected to employ 450 people at full production and approximately 430 new residents could arrive in Lincoln County if the mine comports with state and federal laws. Id.

The Project involves the development of five major mining facilities: (1) a Poorman Tailing Impoundment Site north of Poorman Creek for tailings disposal, (2) the Libby Plant Site located between Libby and Ramsey creeks, (3) the existing Libby adit, (4) two additional adits in upper Libby Creek, and (5) a new 13.7 mile electric transmission line. SeeConsDoc:564 (Figure 2), 563. Of the 13.7 miles of transmission line, ConsDoc:565, 9.1 miles are on National Forest System lands, FS6–10.1:10529. Construction of the line is estimated to take a maximum of 200 feet of clearing, and a helicopter would be used for timber removal, to place 16 structures in the upper Miller Creek and Howard Creek drainages adjacent to grizzly bear core habitat, and to string line and ground wire. ConsDoc:565.

The Project consists of four phases: Evaluation, Construction, Operation, and Closure. Id.In general, the Evaluation Phase is expected to last two years, Construction three to four years, Operations 16 to 20 years, and Closure/Reclamation up to 20 years. ConsDoc:566. The Evaluation Phase involves advancing the existing Libby adit and re-initiating evaluation drilling that started in 1989. Id.The Construction Phase consists of developing the infrastructure necessary to initiate full mining activities, including the construction for the mine adits and facilities, the transportation system, and the transmission line. ConsDoc:570. All activities for the construction of the transmission line on federal lands are scheduled between June 16 and October 14, outside the spring and denning periods for grizzly bears. Id.The Operations Phase would consist of the actual mining and milling operations. ConsDoc:573. Following that, the Closure and Reclamation Phase is designed to establish a post-mining environment compatible with the Kootenai Forest Plan land use direction. ConsDoc:575. Closure consists of two phases, an initial phase removing most of the facilities and transmission line, and a second phase consisting of reclamation, water treatment, and monitoring. ConsDoc:565.

II. Federal Agency Planning and Review

Discovery of mineral deposits for the Montanore Project dates back to the early 1980s. ConsDoc:865. The permitting process began in 1989 under Noranda Minerals Corporation ("Noranda"). Id.Noranda obtained an exploration license from the Montana Department of State Lands and other associated permits for construction of an exploration adit from private land in upper Libby Creek. ConsDoc:865–66. After construction of about 14,000 feet of the Libby adit, Noranda ceased construction in 1991 in response to elevated nitrate concentration in surface water as well as low metal prices. ConsDoc:866. By the time Noranda conveyed its interests to Newhi, Montanore's predecessor, in 2002, many of Noranda's permits terminated or expired and Noranda notified the Forest Service that it was relinquishing the authorization to operate and construct the Project. Id.Sometime around 2006, Montanore re-opened the Libby Adit and re-initiated the evaluation drilling program that Noranda began in 1989. Id.The Forest Service initiated an environmental analysis that included public scoping for the proposed road use and evaluation drilling at the Libby Adit site. Id.But, in 2008, the agency decided the best approach for disclosing the environmental effects of the Libby Adit was to consider this activity as the initial phase for the Montanore Project. Id.

The lead agencies for the Project are the Forest Service and Montana Department of Environmental Quality ("DEQ"). ConsDoc:563. Forest Service authorization is required to develop the Mine because its surface facilities and access roads will be located on National Forest System land. SeeFS6–10.1:10522. Because the Project "may affect" bull trout and grizzly bear populations protected under the ESA, the Forest Service initiated Section 7 consultation with the Fish and Wildlife Service in 2011. SeeConsDoc:864. On March 31, 2014, the Fish and Wildlife Service issued its biological opinions for the Project, finding that it is not likely to jeopardize grizzly bears or bull trout and it is not likely to destroy or adversely modify bull trout critical habitat.² SeeConsDoc:857–1094 ("Aquatic Opinion"); ConsDoc:554–856 ("Terrestrial Opinion"). On February 12, 2016, the Forest Service issued a Record of Decision approving the Project. FS6–10.1.

Plaintiffs bring this action under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, and the ESA's citizen suit provision, 16 U.S.C. § 1540(g). See Ariz. Cattle Growers' Ass'n v. Salazar, 606 F.3d 1160, 1163 (9th Cir. 2010). They challenge the March 2014 Biological Opinions and the 2016 Record of Decision. They argue that the Fish and Wildlife Service violated the ESA when it concluded that the Project will not jeopardize bull trout (Count I), or grizzly bears (Count IV), or destroy or adversely modify bull trout critical habitat (Count II). They allege the agency also violated the ESA in its use of a surrogate in the bull trout incidental take statement (Count III). Finally, they argue the Forest Service violated the ESA when it relied on the flawed biological opinions (Counts V, VI). Except for Count II, Plaintiffs have the stronger legal position on all the remaining counts.

SUMMARY CONCLUSION

The Project is anticipated to have serious negative impacts on local populations of bull trout and an already declining grizzly bear population. Although the 2014 Biological Opinions do not attempt to mask these serious localized effects, the Fish and Wildlife Service acted arbitrarily and capriciously in reaching its no jeopardy conclusions. The Forest Service's approval of the 2016 Record of Decision based on those flawed Biological Opinions violated the ESA.

ANALYSIS

I. Legal Standards

A. APA

Under the APA, a "reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions...