Group files petition to delay Rock Creek

Earthjustice filed a petition March 17 with the U.S. Fish and Wildlife Service’s field supervisor, Jodi Bush, urging the agency to withdraw the biological opinion with regard to bull trout and grizzly bears issued on Revett Minerals Inc.’s Rock Creek Mine project.

The biological opinion was issued on Oct. 11, 2006.

The Fish and Wildlife Service “has received new information documenting adverse effects to threatened bull trout that were not considered in the 2006 (biological opinion), as well as new information indicating that conflict-reduction strategies will be inadequate to offset the mine’s mortality risk to grizzly bears. This new information triggers (Fish and Wildlife Service’s) duty to reinstate Endangered Species Act consultation with the Forest Service,” the petition stated.

Earthjustice filed the petition on behalf of The Rock Creek Alliance, Earthworks and Idaho Council of Trout Unlimited.

Revett President and Chief Executive Officer John Shanahan doesn’t believe the petition will result in delays to the permitting of Revett’s Rock Creek Mine project. He is, however, frustrated with the group’s approach.

“All of this is not new,” he said. “The Ninth Circuit Court upheld the biological opinion in November 2011. That ruling was very clear. The existence of the Rock Creek project is not going to hamper the recovery of the endangered species. It will, in fact, assist in the recovery.”

Earthjustice associate attorney Katherine O’Brien said there are two sets of new information with important ramifications for the endangered bull trout population and one involving grizzly bears.

First, she cited the 2011 Montanore Mine project environmental impact statement, which indicated a reduced stream flow of .03 cubic feet per second at the top of Rock Creek. That reduction in flow, she said, could impact the spawning migration of bull trout.

Quinn Carver, resource officer for the United States Forest Service, said the flow rate of .03 cubic feet per second is roughly equivalent to the amount of flow needed to fill a standard bathtub in three minutes. Last week the Libby Dam discharged an average of 4,000 cubic feet of water per second into the Kootenai River.

“It’s a small amount of water,” Carver said.

O’Brien said the issue with the flow was magnified by the inability of bull trout populations to pass over the Noxon Rapids and Cabinet Gorge dams. Migration between the two distinct bull trout populations would strengthen the species, making the flow reduction a moot issue.

The 2006 biological opinion, she said, was predicated upon the idea that migration between those populations would be enhanced, which has not happened.

“The no-jeopardy determination in the 2006 BiOp rests in part on the assumption that fish passage would be restored across the Cabinet Gorge and Noxon Rapids Dams … However, FWS has since determined that the Avista program has not developed as expected and, as a result, reliable fish passage has not been restored as contemplated in the 2006 BiOp,” according to the petition.

The final claim in the petition centers around the alleged failure of conflict-reduction measures implemented to decrease the risk of human-caused grizzly bear mortality.

The petition claims “the results of conflict-reduction efforts in the Cabinet-Yaak Ecosystem since 2006 reveal that these measures, while positive, are incapable of offsetting the substantial increase in human-caused mortality risk associated with the Rock Creek Mine.”

Earthjustice claims human-bear conflict will undoubtedly increase with the addition of 700 people to the area as the mine moves to full production.

Shanahan rejected the premise of the claim, citing Revett’s history and the economy of Lincoln County as reasons the population will increase only slightly, if at all.

“When we reopened the Troy Mine in 2005, we brought in about a half-dozen people,” he said. “The other 200 to 250 people working the mine were all hired and trained locally. We’re going to do the same with Rock Creek. With all of the unemployment in the area, there are plenty of people to hire for the project.”

Shanahan criticized the petition and the organizations behind it while praising the work of the local professional biologists who wrote the biological opinion eight years ago.

“The work that has been done by both the state and federal biologists in the area has been outstanding. They’ve worked so hard to educate and bring the community together and yet it’s not good enough for groups of this nature,” he said.

“The petition dismisses the incredible amount of good work that has been done by wildlife experts, the agencies, the people of Lincoln and Sanders counties and local conservation groups,” he added.

If the agency decides to withdraw the biological opinion, substantial delays in the permitting process could result. Shanahan said the initial opinion required about two years to produce. Based upon objections received, it was remanded shortly thereafter, which required an additional two years to finalize.

Once the opinion was filed, it was challenged in federal court. The biological opinion was upheld by the Ninth Circuit in November 2011. That, Shanahan said, should have been the end of it.

“If they disagreed with the Ninth Circuit’s ruling, they should have appealed it to the Supreme Court, but they didn’t,” he said. “It’s ironic that out-of-the-area groups who have a totally different agenda and who don’t understand the work being done are using this as a tool for frivolous petitioning with the threat of further litigation,” he said.

Shanahan said he is not concerned with the petition, noting the professionalism of the Fish and Wildlife Service. “The United States Fish and Wildlife Service will make a decision with all of the facts, not just cherry-picked data,” he said.

The field supervisor for the Fish and Wildlife Service, Jodi Bush, was out of the office and unavailable for comment. Messages left at the Denver office of the agency were unreturned as of press time.

Shanahan expects the next phase of Rock Creek permitting, the Supplemental Environmental Impact Statement, to be completed by May or June and for the project to move forward as scheduled.

At full production, the Rock Creek Mine is expected to employ 350 people.