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Judge blocks mine development

| April 6, 2005 12:00 AM

By STEVE KADEL Western News Reporter

A Missoula judge has blocked development of Rock Creek copper and silver mine under the Cabinet Mountains Wilderness Area because the project would harm grizzly bears and bull trout, both of which are protected under the federal Endangered Species Act.

U.S. District Court Judge Donald Molloy's ruling, issued March 28, overturns previous approval from the U.S. Fish and Wildlife Service and the Montana Department of Environmental Quality.

Earthjustice legal firm of Bozeman filed a lawsuit in 2001 challenging those agencies' findings on behalf of several environmental groups, including the Cabinet Resource Group.

"We always felt very confident the biological opinion has fundamental flaws," Earthjustice attorney Tim Preso said. "I was quite confident there were serious flaws with it."

Revett Minerals Inc. spokesman Bill Orchow said Friday that company officials hadn't anticipated such a ruling by Molloy.

"It came as a surprise," Orchow said.

No decision has been made whether to appeal the ruling to a higher court or conduct additional studies in hopes of reviving the mine, he said.

Revett acquired Rock Creek in 1999 from Asarco Inc., which had begun the process of acquiring permits for drilling. The final environmental impact statement was issued jointly in 2001 by Fish and Wildlife and the state.

Revett planned to begin operations this spring, with workers for the Rock Creek project trained at the company's Troy mine, which began production in December 2004 and now has 140 employees.

Plans called for 10,000 tons of copper and silver ore to be removed each day, seven days a week, for at least 20 years. However, the Rock Creek proposal was always a lightning rod of protest from those who feared the loss of 7,000 acres of grizzly habitat would be devastating for the estimated 15 or fewer grizzly bears surviving in the Cabinets.

Many residents in northwest Montana also said that dumping millions of gallons of waste water daily into the Clark Fork River would destroy bull trout populations in that Clark Fork tributary.

Molloy's ruling supports both of those claims.

As for bears, the judge agreed with the plaintiffs that the Forest Service "has improperly concluded that the grizzly bear population can absorb any additional mortality (and) that the habitat mitigation measures will alleviate these losses."

Molloy wrote that the Forest Service apparently is not even sure what the effects of bear displacement will be.

Also, the Forest Service concludes that the mine is likely to displace one or two bears, and possibly impair feeding and breeding. But Molloy noted the agency doesn't cite any scientific information regarding disturbance or displacement of grizzlies.

"Two bears could be, by FWS' analysis, two of three to five females in the Cabinets, i.e., 40 to 60 percent of females."

Fish and Wildlife's determination that Rock Creek mine would not jeopardize the Cabinet-Yaak grizzly bear population "is arbitrary and capricious," the judge wrote.

As for effects on fish, Molloy ruled that the agency "appears not to have thoroughly considered the state of the bull trout throughout DPS (distinct population segment). FWS fails to consider the status of the species throughout the DPS and fails to explain satisfactorily why so many projects, all stating the hazard of the loss of subpopulations, have been approved despite the very risk of lost subpopulations.

"FWS has failed its procedural obligation here to consider cumulative effects."

Molloy's ruling sets aside Fish and Wildlife's 2003 biological opinion and remands it to the agency for consideration. Further, Fish and Wildlife is "enjoined from authorizing any take of grizzly bears and bull trout pending compliance with the Endangered Species Act and this order," Molloy wrote.

Despite that, Mines Management's Eric Klepfer voiced optimism that the company will eventually prevail. "There's going to be a delay, for sure," he said.

Earthjustice's Preso remained just as steadfast.

"We stand ready to continue to defend this ruling if they take it to appeal," he said.