Montanore mine loses on both clean water, endangered species challenges

Montanore mine loses on both clean water, endangered species challenges

Source: Missoulian
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ROB CHANEY rchaney@missoulian.com

The U.S. Forest Service’s “approve now, study later” approach to the Montanore copper and silver mine near Libby violates numerous laws, according to a federal judge in Missoula.

The project would also jeopardize federally protected grizzly bears and bull trout in the Cabinet Mountains Wilderness, Judge Donald Molloy wrote in decisions released on Tuesday.

“The Forest Service’s approval of the project despite noncompliance with Montana’s nondegredation standards is arbitrary and capricious in violation of the Clean Water Act, the Organic Act and NFMA (National Forest Management Act),” Molloy wrote. “Additionally, the agencies violated NEPA (the National Environmental Policy Act) by failing to discuss mitigation with regard to the Poorman site.”

In a separate opinion, Molloy found the U.S. Fish and Wildlife Service failed to properly assess the mine’s impact on bull trout and grizzlies, in violation of the Endangered Species Act. He wrote the mine’s potential to drain large amounts of groundwater out of wilderness streams would cause unacceptable damage to trout spawning areas, while the arrival of hundreds of miners would result in too many bears getting killed in an already tiny population.

“Given the number of environmental laws this project violates, the chance of a successful appeal is weak,” said Bonnie Gestring, Northwest program director for EarthWorks, one of the environmental groups suing the agencies and the mine company. Montanore officials did not respond to requests for comment.

The Montanore Project would tunnel for copper and silver in the mountains between Libby and the Cabinet Mountains Wilderness. While the ore body it pursues lies under the wilderness area, all of its above-ground operations were located outside the boundary.

Noranda Minerals Corp. made the original discovery and sought a permit to mine in 1989. It dug an adit 14,000 feet long in the upper Libby Creek area, but ceased operations after surface waters started showing increased nitrate levels and metal prices crashed.

A successor to Montanore acquired the claim in 2002, by which time most of Noranda’s permits had expired or been terminated. Montanore reopened the Libby adit in 2006 and started a new permitting process. That included requiring the Forest Service to consult with the U.S. Fish and Wildlife Service over the mine’s possible impacts to bull trout and grizzly bears — two species considered threatened under the Endangered Species Act.

FWS issued a biological opinion in 2014 saying the project wouldn’t jeopardize grizzlies or bull trout, and the Forest Service released a record of decision (ROD) in 2016.

The project anticipated it would take about five years to evaluate and construct the mining facility, followed by 16 to 20 years of operation and up to 20 more years of closure and post-closure work. Miners expected to remove 12,500 tons of material at the start and increase to 20,000 tons daily at peak operation.

The project estimated it would employ 450 people at full production. Montana’s Department of Environmental Quality refused to give Montanore a full permit in 2016, citing the company’s models showing it would degrade water quality below state and federal standards. However, the Forest Service granted a permit for the full project.

Molloy knocked the Forest Service for attempting to make its decision apply to the entire lifespan of the mine even though it anticipated more environmental analysis would be needed before it could proceed beyond the evaluation stage.

The judge wrote that kind of “adaptive management” approach, where problems get fixed as they come up, won’t work when the agency also has claimed it already had enough information to permit the whole project.

“(Montanore) argues that such a conclusion results in an ‘illogical paradox’ which recognizes that exploratory drilling is necessary to determine full-scale mining effects but that exploratory drilling cannot occur until the full-scale effects are known,” Molloy wrote. “But that again ignores the fact that the Forest Service determined it had enough information to proceed with the ROD … To say that noncompliance does not matter in the face of ‘adaptive management’ is contrary to the evidence before the agency.”

In the Endangered Species Act decision, Montanore argued that Libby Creek was one of six tributaries that spawning bull trout used to feed into the Clark Fork River. The company and the Fish and Wildlife Service also cited a previous case involving the nearby Rock Creek Mine where a similar project didn’t seriously affect bull trout.

Molloy replied that “while Rock Creek II was a pinprick, the Montanore Project is a deep cut.” He cited the agency’s own evaluation of that fish population’s importance to find the decision arbitrary and capricious.

Regarding grizzly bears, Montanore’s project proposed creating 7,030 acres of secure grizzly habitat, improving linkage zones, reducing motorized routes, and funding grizzly bear education and personnel programs.

But Molloy said FWS did a sloppy job predicting how many bears might die because of the mine operation, which made it impossible to judge the value of the mitigation efforts. An estimated 42 grizzlies live in the Cabinet-Yaak Recovery Zone, including 21 in the vicinity of the mine.

The ESA case pitted Save Our Cabinets, Earthworks and Defenders of Wildlife against FWS, the Forest Service and the Kootenai National Forest. The water case involved the Clark Fork Coalition along with Save Our Cabinets and Earthworks, as well as an independent property owner called Libby Placer Mining Co. against the Forest Service and Department of Agriculture and Montanore.