Documents filed in Montanore suit

Three environmental groups have filed suit in federal court to stop progress on the Montanore Mine project. The suit, filed by Save Our Cabinets, Earthworks and Defenders of Wildlife, asked United States District Judge Donald Molloy to invalidate the 2014 U.S. Fish and Wildlife Service’s biological opinion regarding the mine and its impacts to bull trout and grizzly bear populations.

The biological opinion does not permit or authorize any activity on the project, but it is a necessary component of the U.S. Forest Service’s permitting process. The Forest Service uses the biological opinion to prepare the final environmental impact statement that is used in the Record of Decision, which enables permitting to move forward on projects on national forest land.

In the case of Montanore, the U.S. Fish and Wildlife Service issued a biological opinion in February 2009 and submitted it for public comment and agency review. In response to the comments and review, the Forest Service revised some of the mine alternatives and issued a supplemental draft environmental impact statement Oct. 7, 2011.

The Fish and Wildlife Service issued a biological opinion on the revised alternatives March 31, 2014. The biological opinion analyzed the possible impacts of the project on grizzly bears, Canada lynx, wolverines, bull trout and Kootenai River white sturgeon, among other species. The final biological opinion was submitted to the Forest Service April 7, 2014. Following agency review and public comment, the Forest Service issued a final environmental impact statement and draft Record of Decision March 27, 2015.

The suit challenges the specific conclusions reached by the U.S. Fish and Wildlife Service in the biological opinion, while relying on the data used in order to make those conclusions, specifically in relation to bull trout and grizzly bear habitat.

“The proposed Montanore Mine would transform a remote landscape in the Cabinet Mountains of northwest Montana into a large-scale industrial operation involving the mining and processing of up to 20,000 tons of ore every day for up to 20 years,” the plaintiffs claimed in the suit. “The mine project is proposed in an area of primarily national forest and federal wilderness lands that contain some of the last remaining undeveloped habitat for imperiled populations of bull trout and grizzly bears in the region.”

The plaintiff’s preliminary pretrial statement, filed Aug. 31, alleges the U.S. Fish and Wildlife Service acknowledged substantial damage to grizzly bear and bull trout populations as a result of the mine, but improperly dismissed the threats in concluding the mine will not threaten the species’ survival and recovery.

“In the challenged biological opinion, U.S. Fish and Wildlife Service acknowledged that the affected bull trout and grizzly bear populations already are in danger of extirpation,” the plaintiffs wrote in the statement. “U.S. Fish and Wildlife Service further concluded that the mine will inflict substantial damage to both species and their habitat. Ultimately, however, U.S. Fish and Wildlife Service dismissed these threats and concluded that the Montanore Mine will not jeopardize the survival or recovery of bull trout or grizzly bears nor destroy or adversely modify bull trout critical habitat. The agency claimed the mine’s concededly severe impacts on bull trout inconsequential because they will harm or destroy a subset of local bull trout populations across the Columbia River Basin. Regarding grizzly bears, U.S. Fish and Wildlife Service concludes that the substantial increase in human-caused mortality rate associated with the mine would be neutralized – and the mine in the midst of their habitat would in fact provide a net benefit to grizzly bears – because the mining company has promised to fund public education and related measures that aim to reduce conflict between humans and grizzly bears in the Cabinet Mountain region.”

The agency’s response, also filed in Judge Molloy’s court Aug. 31, refutes the allegations made by the plaintiffs and repeatedly points to the scientific analysis provided by the U.S. Fish and Wildlife Service in the biological opinion. The agency’s attorney requested a dismissal of the suit.

The biological opinion, which was transmitted to the Forest Service April 7, 2014, analyzed the proposed mine plan and its impacts on both grizzly bear and bull trout populations. Agency field supervisor Jodi Bush wrote the transmittal document, which summarized the analysis of the biological opinion.

With regard to grizzly bears, Bush said the possible negative impacts stem from a narrowing of the north-south movement corridor through the Cabinet Mountains, a higher risk of human-bear conflict resulting in increased bear mortality rates and displacement from suitable habitat as a result of construction and mining activities. She said the proposed plan adequately addressed the concerns.

“Each of these impacts is addressed through project design elements, such as controlling the times when an activity may occur, and appropriate conservation items,” Bush wrote. “Collectively, the conservation measures are reasonably expected to prevent the loss of multiple grizzly bears over the 30-year life of the mine, thus more than offsetting the loss we anticipate from the project (one grizzly bear).”

With regard to bull trout, the service concluded some damage could be sustained to smaller, localized populations, but the damage would not threaten overall species recovery in critical units. The smaller populations include Libby Creek, Bear Creek, West Fisher Creek, Rock Creek and East Fork Bull River. The impacts would stem from baseflow depletions, increased sedimentation, addition of warm water and degradation of habitat conditions that favor non-native fish populations.

Taking these impacts into consideration, however, the service concluded the Montanore project is not likely to threaten species recovery or survival.

“The service’s biological opinion is that the proposed action of construction and operation of the proposed Montanore project is not likely to jeopardize the continued existence of bull trout,” Bush wrote. “The service’s opinion is based on the conclusion that implementation of the Montanore project is not likely to appreciably reduce the reproduction, numbers or distribution of bull trout at the scale of either the Lower Clark Fork River or Kootenai River core areas, and by extension not at the Clark Fork Management Unit or Kootenai River Management Unit levels and larger scale of the Columbia River Interim Recovery Unit. Therefore, the service concludes that the proposed Montanore project will not jeopardize the bull trout at the scale of the coterminus population of bull trout.”

The plaintiff’s filing in the case provided no specific scientific evidence to counter the conclusions reached by the U.S. Fish and Wildlife Service. Attorney for the plaintiff Katherine O’Brien said a number of experts provided evidence during the public comment period and objection processes. A request for copies of that testimony was not fulfilled prior to press time.

Judge Molloy has ordered the parties to submit a case management plan to him by Sept. 15, 2015. The plan will consist of all briefs, motions, discovery items and additional proposed deadlines for the case. Judge Molloy could then rule to dismiss the case, declare summary judgment for either party or continue with additional hearings or a trial. Should he rule in the plaintiffs’ favor, the biological opinion would be set aside, forcing the U.S. Fish and Wildlife Service to redo the analysis. That would, in turn, force the Forest Service to reevaluate the environmental impact statement and Record of Decision, further delaying the final approval and permitting of the project.