Save Our Cabinets et al v. United States Department of Agriculture et al
OPINION and ORDER. IT IS ORDERED that the parties' motions for summary judgment (Docs. 35, 39, 48, 52) are GRANTED in PART and DENIED in PART. Plaintiffs' motions (Docs. 35 in 9:16-cv-00053-DWM, 32 in 9:16-cv-00056-DWM; 39 in 9:16-cv-00053- DWM, 36 in 9:16-cv-00056-DWM) are GRANTED as to their claims related to Montana's non-degradation standards under the Clean Water Act and Organic Act, their NFMA claim related to FW-DC-WTR-02 and the Inland Native Fish Strategy, and their NEPA c laim related to mitigation of the Poorman site. The defendants motions (48 in 9:16-cv-00053-DWM, 45 in 9:16-cv-00056-DWM; 52 in 9:16-cv-00053-DWM, 49 in 9:16-cv-00056-DWM) are GRANTED in all other respects. The matter is remanded for further review consistent with this opinion. Signed by Judge Donald W. Molloy on 5/30/2017. (NOS)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MAY 30 2017
Clet'k. u.s Courts
District Of Montana
SAVE OUR CABINETS,
EARTHWORKS, and CLARK FORK
(Consolidated with Case No.
UNITED STATES DEPARTMENT OF
AGRICULTURE, et al.,
LIBBY PLACER MINING COMPANY,
UNITED STATES FOREST SERVICE,
The plaintiffs in this consolidated action seek review under the
Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, of federal agency
actions and the associated planning documents relating to the approval of a
proposed mining operation in the Cabinet Mountains Wilderness area in the
Kootenai National Forest in northwestern Montana. The plaintiffs in
CV 16--53-M-DWM are a coalition of environmental advocacy groups led by
Save Our Cabinets. The plaintiff in CV 16-56--M-DWM is a private Montana
mining company that owns 1,000 acres of land adjacent to the proposed mine
facilities. The cases are brought against the United States Department of
Agriculture and the United States Forest Service ("Forest Service" or "Federal
Defendants"). 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).
The plaintiffs (collectively referred to as "Plaintiffs" unless context or
specificity dictates otherwise) invoke the National Environmental Policy Act
("NEPA"), the Forest Service Organic Act of 1897 ("Organic Act"), the Federal
Water Pollution Control Act ("Clean Water Act"), and the National Forest
Management Act ("NFMA"). The challenged planning documents are the
February 12, 2016 Record of Decision ("ROD"), the March 2015 Final
Environmental Impact Statement ("FEIS"), the December 2015 Joint Final
Environmental Impact Statement ("JFEIS"), and the July 22, 2015 Combined
Response to Objections. Plaintiffs ask the Court to declare that the agencies
violated the relevant statutes and enjoin them from authorizing any activity
relating to the Montanore Mine Project (the "Project" or "Mine") until they have
complied with all applicable statutes and regulations. Argument was heard on this
matter along with a related Endangered Species Act case on March 30, 2017. See
Save Our Cabinets v. U.S. Fish & Wildlife Serv., CV 15-69-M-DWM.
For the reasons set forth below, Plaintiffs' claims are granted in part and
denied in part. Approval of the Project would violate the Clean Water Act and the
Organic Act as the approval violates Montana's nondegradation standards. The
approval also fails to pass NFMA and NEPA muster.
The Montanore Mine Project
The February 12, 2016 ROD states the Forest Service intends to approve a
Plan of Operations for the Montanore Project, a copper and silver underground
mine and associated facilities, including a new transmission line, located near
Libby, Montana. ROD at 1, ARl 0522. 1 The Project will affect private, state, and
"AR" cites refer to the sequential Bates number stamped at the center-top of each page.
Cites also include the document title and the internal page number where feasible.
National Forest System lands. Id. Montanore holds fee title by patent to mining
claims (denoted HR 133 and HR 134), which lie partially within the Cabinet
Mountains Wilderness Area ("Wilderness"). Id. While the ore body is located
beneath the Wilderness, all Project mining access and surface facilities would be
located outside the Wilderness boundary. JFEIS at 2, AR7862.
The Project is to proceed in four phases: Evaluation, Construction,
Operations, and Closure. ROD at 8, AR10529. The first phase, Evaluation,
consists of extending the existing Libby Adit (mining tunnel) and collecting and
analyzing additional geotechnical, hydrological, and other information to assess
the mining prospects and environmental impacts of the Project. ROD at 9-10,
ARI 0530-31. The Evaluation Phase is expected to last two years, Construction
three years, Operations 16 to 20 years, and Closure and Post-Closure up to 20
years. JFEIS at 273, AR8133. The Project would consist initially of 12,500 tons
per day underground mining and would ultimately expand to 20,000 tons of ore
every day of operation. JFEIS at 7, AR7867. The ore deposit is estimated at 135
million tons, of which Montanore anticipates mining 120 million tons. The permit
area is 2,157 acres and expected disturbance area is 1,565 acres. JFEIS at S-13,
AR7807. Employment is estimated at 450 people at full production, JFEIS at 7,
AR7867, assuming the Project meets all legal requirements imposed by law.
In order to operate, the Project requires a Plan of Operations approved by
the Fore st Service and permits as well as approvals from the Montana Department
of Environmental Quality ("Montana DEQ"), the Bonneville Power
Administration, the U.S. Army Corps of Engineers ("Corps"), and other state and
local agencies. In conjunction with the Forest Service, the Montana DEQ is a lead
agency on the Project with authority over permits for Montana water quality
regulations and the Clean Water Act. The Forest Service and the Montana DEQ
determined that the Project may significantly affect the quality of the human
environment. ROD at 2, AR10523. Consequently they, along with the Corps and
the Bonneville Power Administration, prepared an Environment Impact Statement
("EIS"). On February 27, 2009, a Draft EIS was issued for public comment. Id.
In response to public comment, the agencies revised the mine alterative and
transmission line alignments and issued a Supplemental Draft EIS on October 7,
2011. Id. As of April 1, 2015, the Forest Service issued a Final EIS ("FEIS") and
Draft ROD. Id. A Joint Final EIS ("JFEIS") was issued in December 2015. Id.
The Forest Service did not select Montanore's proposed action as the
preferred alternative; rather it selected "Alternative 3 Agency Mitigated Poorman
Impoundment and Transmission Line Alternative D-R" that "incorporates
modifications and mitigating measures proposed by the agencies to reduce or
eliminate adverse environmental impacts." ROD at 14, AR10535. Under this
alternative, the Libby Plant site would be on the ridge between Poorman and
Ramsey creeks, with mine production and the ventilation adits in the Upper Libby
Creek Drainage, about one mile from the Wilderness boundary. Id. A tailings
impoundment site would be located north of Poorman Creek. Id.
While authorizing the full project, the ROD requires additional Forest
Service approval prior to each Project phase. ROD at 8, AR10529. It also
requires that Montanore obtain all necessary Clean Water Act permits prior to
approval of the amended Plan of Operations and before implementing each phase.
Montanore does not yet have the required permits. Montana DEQ decisions are
documented in a separate Record of Decision ("DEQ ROD"). After reviewing the
Project, the Montana DEQ held in abeyance its decision on whether to amend the
provisions of the current operating permit regarding the Construction, Operation,
Closure, and Post-Closure Phases of the Project to make it consistent with the
Forest Service's selected mine alternative. DEQ ROD at 15, ARl 1014. The DEQ
approved amendments to Montanore's existing DEQ Operating Permit 00150 to
conditionally allow only the Evaluation Phase. Id.; ROD at 1, AR10522.
The environmental plaintiffs assert violations of the Organic Act (Count I),
the Clean Water Act (Count II), NFMA (Count III), and NEPA (Count IV). Their
claims are based primarily on the Project's effects on water quality and stream
flows, as well as the Forest Service's consideration of mitigation measures and
public access during the NEPA process. Plaintiff Libby Placer Mining Company
("Libby Placer Mining"), also challenges the Project under NEPA (Counts I, II)
and the Organic Act (Count III). Its arguments focus primarily on the decision to
use the Poorman Creek tailings impoundment site.
The Attorney General for the State of Montana filed an amicus brief,
arguing that Montanore should be allowed to complete the Evaluation Phase.
(Doc. 46.) According to the amicus, the ROD granted only limited exploratory
permit rights contingent on a determination by Montana DEQ that actions beyond
the Evaluation Phase will comply with Montana's water quality laws. See ROD at
58, AR10579. The Attorney General argues that such "phased review" has
previously been upheld and should be upheld here. That position is addressed in
the context of the parties' substantive arguments.
Federal Defendants insist that the existing baseline data enabled the Forest
Service to evaluate the reasonably foreseeable significant effects of the Mine and
to make a reasoned choice among alternatives as to all phases of the Project. The
defendants and amicus emphasize, however, that while the ROD authorizes the
full Project, further analysis and authorization is required after the Evaluation
Phase and before the Project can proceed. They refer to this process as either
"phased" or "adaptive management." Plaintiffs do not dispute the necessity of
collecting additional data on hydrogeologic conditions during the Evaluation
Phase, (Doc. 63 at 18), but argue the legal error is that the ROD covers all phases
of the Project. Plaintiffs emphasize that the ROD, as final agency action, must be
assessed and the Forest Service cannot simply defer its substantive environmental
analysis pending the DEQ permitting process.
Although the "phased" approach used by the Forest Service is not inherently
flawed, its application in this case is problematic. The Forest Service's approval
of the Project despite noncompliance with Montana's nondegradation standards is
arbitrary and capricious in violation of the Clean Water Act, the Organic Act, and
NFMA. Additionally, the agencies violated NEPA by failing to discuss mitigation
with regard to the Poorman site.
Legal Standards Applicable to All Claims
Under the APA, a "reviewing court shall ... hold unlawful and set aside
agency action, findings, and conclusions found to be ... arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C.
§ 706(2)(A); San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601
(9th Cir. 2014). The scope of review is narrow, and a court must "not substitute
its judgment for that of the agency." Motor Vehicle Mfrs. Ass 'n of U.S., Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). A decision is arbitrary or
only if the agency relied on factors Congress did not intend it to
consider, entirely failed to consider an important aspect of the problem,
or offered an explanation that runs counter to the evidence before the
agency or is so implausible that it could not be ascribed to a difference
in view or the product of agency expertise.
Gardner v. U.S. Bureau ofLand Mgmt., 638 F.3d 1217, 1224 (9th Cir. 2011)
(quoting Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en bane)).
An agency's actions are valid if it "considered the relevant factors and articulated
a rational connection between the facts found and the choices made." Id. (internal
quotation marks omitted); Motor Vehicles Mfrs., 463 U.S. at 50.
Summary judgment is appropriate where there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). Summary judgment is particularly applicable to cases involving
judicial review of final agency action. Occidental Eng'r Co. v. INS, 753 F.2d 766,
770 (9th Cir. 1985). Summary judgment is appropriate in this case because the
issues presented address the legality of the agencies' actions based on the
administrative record and do not require resolution of factual disputes.
Clean Water Act and Organic Act
Plaintiffs insist there are three sets of claims under the Clean Water Act and
the Organic Act: (1) noncompliance with state water quality standards, (2) lack of
proper certification under Clean Water Act Section 401, and (3) noncompliance
with the EPA's zero discharge effluent rule. Although the Forest Service can
legally rely on future approvals by Montana DEQ, Rock Creek II, 703 F. Supp. 2d
at 1169, baseflow model results show the Project will violate Montana's water
quality requirements in the future; the Forest Service's decision to approve the
Project despite that violation is arbitrary and capricious.
Clean Water Act
The Clean Water Act is designed "to restore and maintain the chemical,
physical, and biological integrity of the Nation's waters." 33 U.S.C. § 125 l(a). It
establishes water quality standards to protect the desired condition of each
waterway. 33 U.S.C. § 1313. "A water quality standard defines the water quality
goals of a water body, or portion thereof, by designating the use or uses to be
made of the water and by setting criteria that protect the designated uses." 40
C.F.R. § 131.2. "[A] project that does not comply with a designated use of the
water does not comply with the applicable water quality standards." PUD No. 1 v.
Wash. Dep't ofEcology, 511 U.S. 700, 715 (1994). Under the Clean Water Act
Section 313, the Forest Service cannot authorize mining operations that do not
comply with state and federal water quality regulations, "including a state's
antidegradation policy. 33 U.S.C. § 1323(a)." Idaho Sporting Congr. v. Thomas,
137 F.3d 1146, 1153 (9th Cir. 1998). The Act also prohibits the Forest Service
from authorizing a project that does not comply with Clean Water Act Section
401, which requires certification that any activity receiving a "Federal license or
permit" that may result in any discharge into navigable waters will comply with
state water quality standards. 33 U.S.C. § 1341(a)(l). "Proposed mining activities
on National Forest System lands are subject to compliance with [Section 401]."
JFEIS at 622, AR8499.
Montana DEQ administers the Clean Water Act under authority delegated
from the United States Environmental Protection Agency ("EPA"). Here,
Montanore possessed a discharge permit from Montana DEQ (MPDES Permit
MT0030279) allowing discharges of water from the existing Libby Adit. DEQ
ROD at 5, ARl 1004. Permit MT0030279 allows three points of discharge:
"Outfall 001 - percolation pond, Outfall 002 - infiltration system of buried pipes,
and Outfall 003 - pipeline outlet to Libby Creek." Id. Montanore also previously
obtained a hard rock mine operating permit from Montana, DEQ Operating Permit
#00150, with minor revisions in 2006 regarding approved Libby Adit evaluation
drilling that were referenced and incorporated in an amended Operating Permit.
Id. The actions under review by the DEQ for the Project also included a renewal of
that Discharge Permit, upon which the DEQ ROD conditioned amendment of the
Operating Permit for the Evaluation Phase. DEQ ROD at 15, ARl 1014.
The Organic Act authorizes the Fore st Service to regulate use and
occupancy, such as mineral operations, on National Forest System lands and to
develop mineral regulations. See 16 U.S.C. §§ 475, 478, 551. Those regulations
require that "all [mining] operations shall be conducted so as, where feasible, to
minimize adverse environmental impacts on National Forest surface resources."
36 C.F.R. § 228.8. They further require that mining operators comply with
applicable state and federal water quality standards including the Clean Water Act;
take all practicable measures to maintain and protect fisheries and wildlife habitat;
and construct and maintain all roads so as to assure adequate drainage and to
minimize or, where practicable, eliminate damage to soil, water, and other
resource values. See Rock CreekIJ, 703 F. Supp. 2d at 1164.
The Organic Act limits the Forest Service's regulatory authority, however,
by requiring that no such regulation "prohibit any person from entering upon such
national forests for all proper and lawful purposes, including that of prospecting,
locating, and developing the mineral resources thereof." 16 U.S.C. § 478. The
Forest Service does not have authority to prohibit or deny mine proposals that can
be approved in a manner that will comply with applicable environmental laws that
are reasonably necessary to mining of a private mineral estate or the use of
unpatented claims on National Forest System lands subject to the General Mining
Act. See 30 U.S.C. §§ 22-42 (giving United States citizens the right to explore,
locate, patent, and develop claims on National Forest System lands). Holders of
validly existing mining claims within the Wilderness are accorded the rights
provided by the United States mining laws and must comply with the Forest
Service mineral regulations. 2 36 C.F.R. § 228.15. Operations in the Wilderness
shall be conducted so as to protect National Forest surface resources in
accordance with the general purposes of maintaining the [Wilderness]
unimpaired for future use and enjoyment as wilderness and to preserve
its wilderness character, consistent with the use of the land for mineral
location, exploration, development, drilling, and production and for
transmission lines, water lines, telephone lines, and processing
operations, including, where essential, the use of mechanized transport,
aircraft or motorized equipment.
36 C.F.R. § 228.15(b).
Plaintiffs argue that the selected alternative will violate Montana's water
quality requirements and that the Forest Service failed to comply with the Clean
Water Act Section 401 and the EPA's zero-discharge effluent rule. Those
arguments are addressed in tum.
Montana Water Quality Requirements
Montana law requires that "[e]xisting uses of state water and the level of
water quality necessary to protect those uses must be maintained and protected."
Mont. Code Ann.§ 75-5-303 (the "nondegradation" standard). Montana law
further requires that waters be "maintained suitable for ... growth and propagation
The Wilderness Act withdrew the lands in the Wilderness from mineral entry on
January 1, 1984, subject to valid existing rights. Only claims that had documented valid existing
rights as of December 31, 1983, such as Montanore' s, are allowed reasonable and prudent access
and development of facilities within the Wilderness boundary. JFEIS at 3, AR7863.
of salmonid fishes and associated aquatic life" and that "[n]o increases are allowed
above naturally occurring concentrations of sediment or suspended sediment ...
which will or are likely to ... render the waters harmful, detrimental, or injurious
to ... fish." Admin. R. Mont. 17.30.623(1 ), (2)(f). In addition to "maintaining"
waters suitable for aquatic life, Montana law states that only "a 1 ° maximum
increase above naturally occurring water temperature is allowed within the range
of32°F to 66°F." Admin. R. Mont. 17.30.623(2)(e). Plaintiffs challenge the
Project's compliance with all three standards: (1) nondegradation, (2) sediment,
and (3) temperature.
According to the defendants, because the State of Montana has been
delegated authority to issue discharge permits and has adopted water quality
standards approved by the EPA, the State is the primary decision-maker regarding
compliance with the Clean Water Act, including compliance with state water
quality standards. For that reason, they argue that the Forest Service properly
determined that reliance on Montana DEQ's decisions constitutes compliance with
Clean Water Act requirements. ROD at 58, AR10579; see Rock Creek Alliance v.
United States Forest Service (Rock Creek II), 703 F. Supp. 2d 1152, 1169 (D.
Mont. 2010) ("The permit is the means by which the Montana DEQ enforces state
water quality standards, and the Forest Service is allowed to rely on the Montana
DEQ to issue and enforce a valid permit."). Although the Montana DEQ
determined that "the Libby Adit during the Evaluation Phase will comply with all
water quality standards," it chose to hold in abeyance its compliance determination
for the remaining phases of the Project. DEQ ROD at 18, ARl 1017. Federal
Defendants insist the status of the permit is irrelevant because the Forest Service's
proposals are expressly contingent upon Montana DEQ approval of operations.
See ROD at 8, AR10529; see Rock Creek II, 703 F. Supp. 2d at 1169 n.13 (noting
that the status of a similar State DEQ permit was "irrelevant to the consideration
of' compliance with the Organic Act). The Montana Attorney General echoes that
such reliance on the Montana DEQ is consistent with the law. (See Doc. 46.)
Plaintiffs argue that by deferring to the State's future permit process, despite
the current record which predicts that State water quality standards will be
violated, the Forest Service ignores Section 313 's creation of a separate and
independent duty on federal agencies to comply with all federal and state water
quality standards, and that judicial review of current compliance is appropriate
under the APA, Idaho Sporting Cong'r, 137 F.3d at 1153, and the Clean Water
Act's citizen suit provision, Rock Creek II, 703 F. Supp. 2d at 1163-65. 3
As explained in Rock Creek II, whether a plaintiff proceeds under the APA or is subject
to the notice requirements of the citizen suit provision under 33 U.S.C. § 1365 depends on
whether the challenged project is a "point source." As it relates to Plaintiffs' Section 401
Plaintiffs first argue that the Alternative 3 selected by the ROD will result in
violation of Montana's nondegradation requirements. Montana law requires that
"[e]xisting uses of state waters and the level of water quality necessary to protect
those uses must be maintained and protected." § 75-5-303(1). Degradation of
"high quality" waters is prohibited unless the DEQ issues an authorization to
degrade.§§ 75-5-103(13), 75-5-303. No degradation of"outstanding resource
waters" is allowed, such as surface waters within a wilderness. Admin. R. Mont.
17.30. 705(2)( c); DEQ ROD at 18, ARl 1017 ("Surface waters located within the
boundaries of the [Wilderness] are outstanding resource waters. Authorizations to
degrade may not be issued for state waters that are classified as outstanding
The Montana Water Quality Act defines "degradation" as a change in water
quality that lowers the quality of high-quality waters in terms of physical,
biological or chemical properties of the water, unless the change is nonsignificant.
§ 75-5-103(7), (27). Alteration of stream flows by less than 10 percent (based on
challenge, Federal Defendants argue the citizen suit provision has not been triggered because no
discharge has occurred. Regardless, the environmental plaintiffs complied with the Clean Water
Act's notice provision. (See Amend. Compl., Doc. 11 at~ 14.)
The EPA's use of the term "antidegradation" is functionally equivalent to Montana's
use of the term "nondegradation."
a seven-day, ten-year low flow) is generally not considered "significant," unless
the Montana DEQ determines otherwise. Admin. R. Mont. 17.30.715(1)(a), (2).
Additionally, the Montana DEQ can make a nonsignificant finding based on
information submitted by the applicant. Admin. R. Mont. 17.30.715(3).
Here, "[a]ll of the waters in the analysis area are high quality waters, except
surface waters that have zero flow or surface expression for more than 270 days
during most years." JFEIS at 623, AR8500. According to the DEQ ROD, while
the "completion of the Libby Adit during the Evaluation Phase will comply with
all water quality standards, including nondegradation provisions set forth in
administrative rules, the 3D model results included in the Joint Final EIS do not
demonstrate compliance with the nondegradation provisions for the other phases
of the Montanore Project." DEQ ROD at 18, ARl 1017. The DEQ ROD goes on
to state that "another nondegradation compliance determination for operation of
the mine may be made after" additional information is collected during the
Evaluation Phase. Id. As a result, the DEQ decided to "hold in abeyance" its
decision on whether to approve the remaining phases of the Project. Id.
Federal Defendants rely on Idaho Sporting Congress to support their
decision to defer future water quality compliance issues to the DEQ and
reassessment following the Evaluation Phase. See 137 F.3d at 1153. In that case
the court found that it "lack[ ed] sufficient facts" on the record to determine
whether the nondegradation standards would be violated. Id. Unlike the situation
in Idaho Sporting Congress, however, this record contains degradation data in the
form of baseflow modeling. A complex three-dimensional ("3D") model was used
to simulate changes in baseflows for each mine phase. JFEIS at 521, AR8398.
The effects were measured using the lowest streamflow averaged over 7
consecutive days that occurs, on average, once every 10 years. JFEIS at 519,
AR8396. This "7Q 1O" has a 10 percent probability of occurring in any given year,
and is used for measuring stream baseflow for purposes of nondegradation under
the Montana Water Quality Act. 5 Id.; Admin. R. Mont. 17.30.715(1)(a). The
defendants argue that the modeled baseflow data cannot and should not be relied
upon to reach a degradation conclusion because the model is conservative, more
data will be collected during the Evaluation Phase, and the model will be updated
before the Project proceeds. They ignore the fact the Forest Service determined
the current data was "sufficient" "to make a reasoned choice among alternatives
and to evaluate the reasonably foreseeable significant adverse effects on
groundwater and groundwater dependent ecosystems." JFEIS at 564, AR8441.
The agencies also applied a "7Q2" estimate for flows, which is the lowest streamflow
averaged over 7 consecutive days that occurs, on average, once every 2 years. The 7Q2 flow has
a 50 percent probability of being exceeded in any one year. JFEIS at 519, AR8396.
The modeled data is therefore sufficient for judicial review of the Forest Service's
Outstanding Resource (Wilderness) Waters
Plaintiffs first argue that the Project will substantially reduce or eliminate
entirely the baseflow of outstanding resource waters in East Fork Rock Creek,
East Fork Bull River, and Libby Creek, "each exceeding the 10% nondegradation
standard." (Pis.' Br., Doc. 40 at 17.) In support of these claims, Plaintiffs rely on
JFEIS tables reflecting percentage reductions in baseflows expected to occur
during the Closure and Post-Closure Phases. See JFEIS Tables 100, 101
(documenting projected reductions in baseflows in East Fork Rock Creek by 59100 percent, East Fork Bull River by up to 97 percent, and Libby Creek by 11-14
percent); JFEIS 601-02, AR84 78-79. 6 Plaintiffs further argue that these
significant baseflow losses to the outstanding resource waters in the Wilderness
Montanore's allegation that Plaintiffs incorrectly state that severe depletions are
expected even with mitigation measures is itself misleading. As noted in Table 101, the
predictions are outlined both with and without Montanore's modeled mitigation. See JFEIS at
602, AR8479. While the attendant footnote clarifies that the table "does not include mitigation
measures not provided in [Montanore]'s 3D model report such as increasing buffer zones or
using multiple plugs in the adits during closure," id, it by definition includes some mitigation
measures. Compare Table 101, AR8479 (providing percentages both with and without
mitigation) with Table 111, AR8539 (providing only one set of numbers with notation "without
mitigation"). And, the record shows that even with mitigation, baseflow reductions during the
Operations Phase are expected to be 17 percent in East Fork Rock Creek and 22 percent in Libby
Creek. JFEIS at 661, AR8538.
are categorically excluded under Montana law.
Contrary to Plaintiffs' position, the fact modeled results exceed the
percentage threshold for determining nonsignificance does not categorically
equate to a violation of the Montana's nondegradation standard. Montana DEQ
can determine baseflow reductions in excess of ten percent are nonsignificant for
other reasons. See Admin. R. Mont. 17.30.715(3). But, the stance of the Montana
DEQ appears to be that the predicted losses here would be significant: "the 3D
model results predict decreases in the baseflow of surface water in the
[Wilderness] greater than what is considered nonsignificant under [Montana's
regulatory regime]." DEQ ROD at 18, ARl 1017. The defendants' argument that
Montana DEQ could except reduction in excess of ten percent is not persuasive.
Other than citing to unknown data that will be gathered during the Evaluation
Phase, the defendants have no evidence that the modeled predictions will be found
nonsignificant. And, if significant, Montana DEQ cannot authorize degradation
within the Wilderness area. See Admin. R. Mont. 17.30.705(2)(c).
The amicus 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. (Doc. 46 at 6.) But that again ignores the fact that the Forest Service
determined it had enough information to proceed with the ROD. While the
conditionality of the DEQ's approval would ostensibly prevent the Project from
proceeding in its noncompliant form, the DEQ determined that, based on available
data, the Project would not comply with Montana law. To say that noncompliance
does not matter in the face of "adaptive management" is contrary to the evidence
before the agency. Cf Greater Yellowstone Coalition, Inc. v. Servheen, 665 F .3d
1015, 1029 (9th Cir. 2011) ("[I]t is not enough to invoke 'adaptive management'
as an answer to scientific uncertainty."). In Rock Creek II, the status of the
permitting was considered irrelevant when the Montana Supreme Court remanded
back to the DEQ. 703 F. Supp. 2d at 1169 n.13; Clark Fork Coalition v. Mont.
DEQ, 197 P.3d 482 (Mont. 2008). Here, the issue is not that the permits have not
yet been issued or questions remain as to the procedural process that must be
followed. Rather, the DEQ has explicitly refused to approve permitting for future
stages of the Project based on the environmental record presently before the
agencies. This case falls outside of the purview of Rock Creek II.
High-Quality Waters (Outside Wilderness)
Plaintiffs also cite flow reductions in excess of 10 percent in East Fork Rock
Creek and Libby Creek outside the Wilderness, which are designated high-quality
waters. Tables 99, 100, 101, AR8472, 8778-79 (17-59 percent in East Fork Rock
Creek; 16-20 percent in Libby Creek, depending on phase). Additionally, the
pumpback system under Poorman Creek is expected to reduce flows by up to 12
percent, BA at 58, AR212619, and no mitigation is proposed to address these
baseflow reductions, JFEIS at 596-98, AR8473-75; JFEIS at 1025, AR8902 ("The
agencies did not require [Montanore] to identify mitigation for three potential
indirect effects of the project [including] ... reducing the flow in Poorman and
Little Cherry creeks by the pumpback well system."). Montanore does not
currently have an authorization to degrade any of these streams. It argues,
however, that the 12 percent reduction reflected in the JFEIS for Poorman Creek is
a conservative prediction, is near the 10 percent nondegradation significance
threshold, and does not consider mitigation measures. (Doc. 53 at 25.) Montanore
argues that mitigation measures are to be evaluated after data is collected during
the Evaluation Phase, JFEIS at 662, n., AR8539, and it would update the
pumpback system at that time, JFEIS at 567, AR8444. That position puts the
proverbial cart before the horse.
Although these flow reduction percentages are not as extreme as those
expected within the Wilderness, the defendants do not point to anything in the
record indicating that the Montana DEQ would find the reductions nonsignificant
given the DEQ's current position. 7 Once again, the data before the Court shows
noncompliance for future stages of the Project. Approval of the Project despite the
violation of Montana's water quality standards is arbitrary and capricious.
Fish Protection Standards
Plaintiffs further argue that sediment discharges and water temperature
increases violate Montana's fish protection standards.
Montana law requires that waters be "maintained suitable for ... growth
and propagation of salmonid fishes and associated aquatic life" and that "[n]o
increases are allowed above naturally occurring concentrations of sediment or
suspended sediment ... which will or are likely to ... render the waters harmful,
detrimental, or injurious to ... fish." Admin. R. Mont. 17.30.623(1), (2)(f). The
Project is anticipated to increase sediment discharges that will harm fish. Aquatic
BiOp at 96, AR221619; JFEIS at 441-42, AR8301-02.
Plaintiffs assert that even with the implementation of the mitigation
measures identified in the ROD, including Best Management Practices ("BMPs"),
increased sediment will occur, in part during the Evaluation Phase, in violation of
Tempering this conclusion, however, is the fact that even if they are significant, the
DEQ could authorize degradation, unlike inside the Wilderness.
Montana law. See Aquatic BiOp at 96-97, AR221619-20; id. at 42, AR212603
(recognizing that even with BMPs, increase in sediment loading expected in
Evaluation Phase). Montanore argues that despite short term sediment increases,
long-term mitigation efforts will ultimately improve sediment loading over
baseline conditions. (Doc. 53 at 27); see Aquatic BiOp at 123, AR221646 ("The
road activities associated with the proposed mining operations are predicted to
cause short-term increases of sediment input followed by long-term decreases that
are expected to improve baseline conditions.").
Plaintiffs are correct that an agency cannot simply rely on long-term
mitigation in the face of short-term impacts. See Rock Creek II, 703 F. Supp. 2d at
1170-71 (concluding the agency acted arbitrarily by providing no explanation for
why mine phase with most sediment impacts was to proceed with no mitigation
efforts). However, the situation here is distinguishable from that in Rock Creek II
because the Project requires not only the implementation ofBMPs over the life of
the Project, see JFEIS at 762-63, AR8639-40, but additional bull trout mitigation
measures in the short term, AR 10879-898 (Bull Trout Mitigation Plan). A similar
problem was discussed in Hells Canyon Preservation Council v. Haines, 2006 WL
2252554 (D. Or. Aug. 4, 2006). There, the Forest Service argued the project's
"contemplation of road closures and decomissionings will reduce road-related
sediment and improve water quality." Hells Canyon, at *5. The court disagreed
that such action compensated for sediment in the short term, noting that "[t]he
timing of those [mitigation measures] is, at best, uncertain." Id. Here, unlike Rock
Creek II and Hells Canyon, there is no "gap" between the impacts and imposition
of mitigation measures. See AR8639-40 (listing BMPs), 8060 (Table 28), 10960
(discussing BMPs during Evaluation Phase and requiring monthly sediment
reports); JFEIS at 758, AR8635 (establishing total maximum daily load); see also
Okanogan Highlands All. v. Williams, 236 F.3d 468, 478 (9th Cir. 2000) (noting
that 36 C.F.R. § 228.1 "sets no substantive standards that [the agency] could
violate"). 8 Approval of the Project did not violate Montana's sediment standards.
Under Montana law, only "a 1 ° maximum increase above naturally
occurring water temperature is allowed within the range of32° to 66°F." Admin.
R. Mont. 17.30.623(2)(e). Plaintiffs note that bull trout require water temperatures
ranging from 36° to 59°F, JFEIS at 397, AR8257, and allege that direct discharge
at Outfall 003 into Libby Creek will exceed 60 °F. Outfall 003 is an overflow pipe
that would result in direct discharge when the percolation pond for Outfalls 001
Federal Defendants argue that Montana law allows the DEQ to authorize short-term
violations of water quality standards for sediment during the type of construction occurring in the
Evaluation Phase. See Mont. Code Ann.§ 75-5-318. Such authorization has not occurred here.
and 002 reaches capacity. JFEIS at 750, AR8627. As a result, "[c]onditions where
a direct discharge to Libby Creek would be necessary are expected to be limited in
duration and frequency." JFEIS at S-43, AR7833.
Plaintiffs cite to both the 2014 Aquatic Biological Opinion and the March
2015 EIS which determined "the temperature of the discharge of mine and adit
water during the evaluation, construction and operation phases is expected to be
between 56° and 65°F (KNF BA 2013) which exceeds the temperature thresholds
of bull trout spawning, egg incubation, and rearing, and for generally preferred
water temperatures for bull trout ." Aquatic BiOp at 95, AR221618; FEIS at
677, AR5429. The December 2015 JFEIS, however, describes the discharge as
being between 51° and 60°F "based on temperatures of the Water Treatment Plant
effluent from February 2014 to May 2015 (DEQ 2015b)." JFEIS at 756, AR8633.
Although Plaintiffs challenge the Forest Service's reliance on this new data from
the "DEQ Fact Sheet" on the grounds that it was not part of the NEPA review
process, the agency is required to use "best available scientific and commercial
data available." 50 C.F.R. § 402.14(g)(8); see San Luis, 747 F.3d at 602 (agency
cannot ignore available scientific information); Conservation Cong'r v. US.
Forest Serv., 2016 WL 727272, at *6 (E.D. Cal. Feb. 24, 2016) (upholding an
agency's internal consideration of a new study between draft EIS and ROD).
Moreover, some of that temperature data was present in the annual aquatic reports
submitted by Montanore. See AR35301(Table3 (including 2014 data)).
Plaintiffs insist that even ifthe DEQ Fact Sheet may be used, it shows
discharges in excess of 60°F since discharges began in 2007. See AR153937.
They also criticize the Forest Service's reliance on temperatures measured 2,536
feet below the Outfall 003 discharge point, as opposed to at the point of discharge.
However, the DEQ Fact Sheet shows that the temperature taken at the distribution
box does not show the change in stream temperature relevant to Montana's water
quality standard. Rather, the relevant temperatures are taken above the Outfall
sites and below the discharge area to assess the overall impact on stream
temperature. See AR153937. Plaintiffs' attempt to look to the temperature
changes noted in the data for 2014/2015 as evidence that Outfall 003 has a greater
than 1 °F impact on the stream temperature is unpersuasive as no discharges
occurred in that year from Outfall 003. (See Doc. 66 at 13). Moreover,
temperature data shows a natural variation of over 2°F. See AR153938.
Plaintiffs are correct that the defendant's reliance on the "infrequent" and
"limited duration" of the discharge from Outfall 003 would not excuse compliance
with the water temperature standards, especially when the record shows the threat
high temperatures may have to bull trout. However, those limited and infrequent
additions to the stream, when combined with the many factors that influence
stream temperature-including groundwater/surface interaction, stream depth, and
canopy coverage, AR8592-do not lead to the conclusion that the Forest Service
acted arbitrarily or capriciously in determining the Project complied with
Montana's stream temperature restrictions. Approval of the Project did not
violate Montana's temperature regulations.
Clean Water Act Section 401
Plaintiffs further argue that the agencies failed to comply with Clean Water
Action Section 401. Section 401 provides, in pertinent part, that an "applicant for
a Federal license or permit" that "may result in any discharge into the navigable
waters, shall provide the licensing or permitting agency a certification from the
State ... that any such discharge will comply with the applicable provisions of
[the Clean Water Act]." 33 U.S.C. § 1341. As noted by Plaintiffs, a 401
certification has not been issued here because Montanore has not yet applied for
one. (Doc. 40 at 25.) Plaintiffs insist, however, that approval of the Mine itself is
a "federal license or permit" that requires 401 certification. The defendants insist
that a 401 Permit is based on discharge and the Forest Service has not yet issued a
license or permit that authorizes discharge and will not do so until it receives
water quality certification from the Montana DEQ. ROD at 52-53, ARl 0573-74.
The parties cite to Hells Canyon as instructive, but the defendants persuasively
argue Hells Canyon is inapposite. There, the Forest Service improperly allowed
discharges into Oregon waters from placer mining operations on several occasions
without any prior state approval. 2006 WL 2252554, at *3. Here, the Forest ROD
requires DEQ approval prior to any discharge and there is no indication
unapproved discharge has occurred.
In relation to the Evaluation Phase, Plaintiffs' argument is somewhat
unclear. To the extent Plaintiffs insist a permit is necessary, potential discharge is
covered in the amended Discharge Permit issued by DEQ and, even if it were not,
an additional permit could be obtained and the DEQ could waive certification. See
Mont. Admin. R. 17.30.105(2)(b); see DEQ ROD at 15, ARl 1014 (conditioning
DEQ approval of Evaluation Phase on Montanore receiving renewal of its
discharge permit). The Forest Service did not violate Section 401.
EPA's Zero-Discharge Effluent Rule
Plaintiffs claim that the Forest Service failed to require Montanore to
comply with the EPA's New Source Performance Standards effluent limits for
copper milling operations using froth-flotation milling. The effluent standard
provides that there "shall be no discharge of process wastewater to navigable
waters from mills that use the froth-flotation process alone, or in conjunction with
other processes, for the beneficiation of copper, lead, zinc, gold, or molybednum
ores or any combination of these ores." 40 C.F.R. § 440.104(b). Plaintiffs
challenge the Project's plan to direct discharge from the mill first through the
tailings and then back through the Water Treatment Plant before discharging into
Libby Creek. See JFEIS Figure 58, AR9661 (showing water flows). Federal
Defendants argue that the effluent standard includes exceptions, including
allowing new copper mines and mills to discharge certain waters attributable to
precipitation exceeding evaporation if the water meets effluent limitations
applicable to those discharges. 40 C.F .R. § 440.104(b )(2). Plaintiffs challenge
any reliance on that exemption, noting that the JFEIS specifically determined that
"precipitation and surface runoff within the impoundment area would not
consistently exceed evaporation." JFEIS M-381, AR10419.
Although Plaintiffs convincingly explain that discharge is inescapable, (see
Doc. 63 at 29-31 ), such discharge is of the type permitted under the exceptions,
AR8027-29, 9725, 10419. The JFEIS explains that any water from the tailing
impoundment to be treated and discharged would be mine drainage and
precipitation commingled with process water. JFEIS at 172, AR8032; AR56455
(Mar. 5, 2012 Letter discussing effluent limitations). The effluent limitations
guidelines expressly allow such discharges from commingled waters, provided the
volume of discharge does not exceed the volume that could have been discharged
had each waste stream been treated separately and the pollutants in the volumes
permissibly discharged do not exceed applicable effluent limitations. See 40
C.F.R. § 440.131(a). The approval of the ROD did not violate the EPA rule.
Accordingly, approval of the Project violated the Clean Water Act and
Organic Act insofar as it violated Montana's nondegradation standards. Plaintiffs'
remaining challenges under these statutes lack merit.
The environmental plaintiffs argue that the ROD and the Project activities it
authorizes are inconsistent with the Kootenai National Forest Plan (the "Forest
Plan") in violation ofNFMA. NFMA provides for forest planning and
management at two levels: the forest level and the individual project level. 16
U.S.C. § 1604; Ohio Forestry Ass 'n v. Sierra Club, 523 U.S. 726, 729-30 (1998).
At the forest level, the agency develops a Land and Resources Management Plan,
i.e., "forest plan." Once the forest plan is approved, the Forest Service implements
the plan by approving or denying site-specific actions. Forest Guardians v. US.
Forest Serv., 329 F.3d 1089, 1092 (9th Cir. 2003). The Forest Service's failure to
comply with a forest plan violates NFMA. Native Ecosystems Council v. US.
Forest Serv., 418 F.3d 953, 961 (9th Cir. 2005). The environmental plaintiffs
claim that the Project violates the Forest Plan by failing to meet Desired
Conditions and retarding attainment of the Inland Native Fish Strategy Objectives.
They are partially correct.
The Forest Plan established a number of"desired conditions" to manage and
protect the forest and public resources, including:
FW-DC-WTR-01. Watersheds and associated aquatic ecosystems
retain their inherent resilience to respond and adjust to disturbance
without long-term, adverse changes to their physical or biological
FW-DC-WTR-02. Water quality meets applicable state water quality
standards and fully supports beneficial uses. Flow conditions in
watersheds, streams, lakes, springs, wetlands, and groundwater aquifers
fully support beneficial uses, and meet the ecological needs of native
and desirable non-native aquatic species and maintain the physical
integrity of their habitats.
Plan at 22, AR213903; JFEIS at 703, AR8580. The environmental plaintiffs argue
that NFMA's implementing regulations require that the agency meet a Forest
Plan's desired conditions, relying on 36 C.F.R. § 219.15(d), which provides in
relevant part: "[ e]very project and activity must be consistent with the applicable
plan components" by inter alia "contribut[ing] to the maintenance or attainment of
one or more goals, desired conditions, or objectives, or does not foreclose the
opportunity to maintain or achieve any goals, desired conditions, or objectives,
over the long term." 36 C.F.R. § 219.15(d)(l). Federal Defendants insist that
there is no requirement that any project be consistent with all desired conditions,
and that the ROD adequately explains how the Project will contribute to "one or
more" desired conditions other than those raised by the environmental plaintiffs.
See ROD at 62, ARl 0583 (referencing desired conditions related to economic
growth). The environmental plaintiffs note that the Federal Defendants' litigation
position is contradicted by the JFEIS, which states that Project complies with the
two water-based desired conditions. See JFEIS at 791, AR8668.
As stated in the Forest Plan:
Because of the many types of projects and activities that can occur over
the life of the Plan, it is not likely that a project or activity can maintain
or contribute to the attainment of all goals and desired conditions ....
Most projects and activities are developed specifically to maintain or
move conditions toward one or more of the desired conditions of the
Plan. It should not be expected that each project or activity will
contribute to all desired conditions in a plan, but usually to one or a
Plan at 3, AR213884. The Plan further states that consistency with desired
conditions is based on four factors, including if a project is "neutral with regard to
progress toward Plan desired conditions." Id. The Plan merely requires that the
project documentation "identify which of the[ ] criteria are being met and how
they are being met." Id. Here, the Forest Service asserts that the Project would be
"neutral" as to both desired conditions based on mitigation measures and required
compliance with State water quality standards. JFEIS at 791, AR8668. Although
Plaintiffs challenge that finding, the agency's explanation, when considered in the
context of the extensive discussions on baseflow reductions and impacts on bull
trout throughout the record, is sufficient under the Forest Plan as to FW-DCWTR-01. However, FW-DC-WTR-02 requires compliance with Montana's water
quality standards. Because the Project is expected to violate Montana's
nondegradation standards in future phases, the "neutral" finding reached by the
agency is not supported by the record, making it arbitrary and capricious and in
violation of NFMA.
Inland Native Fish Strategy Objectives
The Forest Plan also implements the Forest Service's Inland Native Fish
Strategy that requires the attainment of the following Riparian Management
Objective for Water Temperature:
No measurable increase in maximum water temperature (7 day moving
average of daily maximum temperature measures as the average of the
maximum daily temperature of the warmest consecutive 7-day period).
Maximum water temperatures below 59 °F within adult holding habitat
and below 48 °F within spawning and rearing habitats.
Plan at 136, AR214017. The environmental plaintiffs argue that record lacks
analysis as to whether the discharges into Libby or Poorman Creek comply with
The Plan states that these Objectives "would be achieved over time." See
Plan at 135, AR214016 ("It is not expected that the objectives would be met
instantaneously, but rather would be achieved over time."); AR37205 (describing
objectives as "criteria against which attainment or progress toward attainment of
the riparian goals is measured"). The Project's failure to immediately comply with
them does not violate the Plan. Nevertheless, the Plan further states that "[a]ctions
that would reduce habitat quality (whether existing conditions are better or worse
than objective values) would be inconsistent with the purpose of' the Objectives.
Plan at 135, AR214016. That limitation is reflected in the JFEIS: "Actions that
retard attainment of these [Objectives], whether existing conditions are better or
worse than objective values, are considered to be inconsistent with [the Inland
Native Fish Strategy] and therefore not in compliance with the [Forest Plan]."
JFEIS at 326, AR8186; see also BiOp at 23, AR212584. "For the purpose of
analysis, to 'retard' would mean to slow the rate of recovery below the near
natural rate of recovery if no additional human caused disturbance was placed on
the system." Plan at 136, AR214017. Compliance with the Plan thus depends
whether the Project "retards" attainment of the identified Objectives. It does.
As argued by the environmental plaintiffs, the 2013 Biological Assessment
indicates the temperature parameters for the Objectives currently identified as
"Functioning Appropriately" in Poorman and Libby Creeks are going to be
"Degraded" by the Project. See Aquatic BA at 120, AR212681. The Biological
Assessment also indicates that the "wetted/depth" conditions in Rock Creek, East
Fork Rock Creek, and East Fork Bull River-a separate Objective-will be
"Degraded" as well. See id. Federal Defendants argue that the mitigation
measures required by the ROD fully comply with the Inland Native Fish Strategy
and the resulting temperatures of the discharges would be acceptable in light of
existing conditions. See JFEIS at 396-97, AR8256-57 (outlining baseline
conditions). Federal Defendants further argue that while the Biological
Assessment recognizes the potential for reduced baseflows to increase
temperatures, it concludes that any effect on temperature, while uncertain,
represents a minimal risk to bull trout. See BA at 53-54, AR212614-15.
Additionally, subsequent to the Biological Assessment, the Forest Service updated
its temperature analysis. See AR13263-471 (January 12, 2016 Letter). The Fish
and Wildlife Service concluded that the updated information shows anticipated
temperature effects in the upper section of Libby Creek would be negligible. See
ROD Att. 3, AR10845. That data does not address Poorman Creek or the
wetted/depth requirements in other streams and does not indicate that temperature
conditions will not be "degraded." It is arbitrary and capricious for the Forest
Service to conclude that a Project that degrades two Objectives across multiple
streams does not retard attainment of those Objectives. 9
Accordingly, the Forest Service's conclusion that the Project complies with
NFMA is arbitrary and capricious given its unsupported "neutrality" finding with
respect to FW-DC-WTR-02 and its conclusion that the Project complies with the
Inland Native Fish Strategy despite retarding certain objectives.
NEPA is a procedural statute that does not "mandate particular results, but
simply provides the necessary process to ensure that federal agencies take a hard
look at the environmental consequences of their actions." Neighbors of Cuddy
Mtn. v. Alexander, 303 F.3d 1059, 1070 (9th Cir. 2002) (internal quotation marks
omitted). NEPA provides that all federal agencies shall prepare an EIS for every
major federal action significantly affecting the quality of the human environment.
42 U.S.C. § 4332(C). The EIS must analyze all "direct," "indirect," and
"cumulative" environmental impacts of the proposed action. 40 C.F .R.
Montanore also notes that the Forest Service has the option to complete Project-specific
Forest Plan amendments to reconcile any inconsistencies, see AR10528-29 (stating that other
provisions of the Forest Plan were suspended for Project); 36 C.F.R. § 219.15(c)(3), (4), and that
such an adjustment would be subject to NFMA and NEPA, 36 C.F.R. § 219.16(b). That has not
happened for the provisions of the Forest Plan addressed here.
§§ 1502.16, 1508.8, 1508.25(c). An agency must ensure the "professional
integrity, including scientific integrity, of the discussions and analyses in
environmental impact statements" and "identify any methodologies used." 40
C.F.R. § 1502.24. NEPA's implementing regulations also require that an agency
describe the environmental baseline of the areas to be affected, 40 C.F .R. §
1502.15, and address "appropriate mitigation measures not already included in the
proposed action or alternative," 40 C.F.R. §§ 1502.14(±), 1502.16(h).
The environmental plaintiffs raise three claims under NEPA: (1) the
preclusion of public review of information obtained during the Evaluation Phase,
(2) the failure to obtain baseline data and deferral of critical environmental
analysis, and (3) the failure to prepare adequate mitigation plans. Libby Placer
Mining raises similar challenges, focusing primarily on the selection of the
Poorman tailings impoundment site. The arguments are addressed in tum.
Plaintiffs generally challenge the agency's reliance on the Evaluation Phase
as a chance to reconsider the Project's environmental impacts and avoid further
public review. The defendants argue that public review is not prevented by such
reassessment because NEPA, pursuant to 40 C.F .R. § 1502.9(c)(ii), requires
preparation of a supplemental EIS if there are "significant new circumstances or
information relevant to environmental concerns and bearing on the proposed
action or its impacts." See Conservation Cong'r, 2016 WL 727272, at *6 (noting
that "public comment is not essential every time new information comes to light
after an EIS is prepared" (internal quotation marks omitted)). Federal Defendants
further argue that although the inaccessibility of the underground mine limits the
amount of data that is currently available, the agencies have addressed the
resulting uncertainty through the use of groundwater modeling, see JFEIS at 568,
AR 8445, and a monitoring plan to gather more data as it becomes available, see
ROD at 10-11, ARl 0531-32. They assure that the public will not be left out.
Plaintiffs point out, however, it is not simply that the environmental impacts
could be different following the Evaluation Phase, but rather that they must be
different in order for the Project to proceed under Montana water quality
regulations. The ROD authorized all phases based on an JFEIS that will have to
be updated following the Evaluation Phase; yet "the public [will] never ha[ve] an
opportunity to comment on the 'double check' analysis, frustrating NEPA's goal
of allowing the public the opportunity to 'play a role in ... the decisionmaking
process."' Great Basin Resource Watch v. Bureau ofLand Mgmt., 844 F.3d 1095,
1104 (9th Cir. 2016) (quoting Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 349 (1989)). Plaintiffs insist NEPA requires informed public comment
"on proposed actions and any choices or alternatives that might be pursued with
less environmental harm." (Id. (quoting Lands Council v. Powell, 395 F.3d 1019,
1027 (9th Cir. 2005).)
Plaintiffs note that the EPA raised similar concerns, recommending the
ROD allow the public a formal opportunity to review the information collected
during the Evaluation Phase. See AR13474 (Oct. 2015 EPA conference call
notes); AR13493 (Jan. 19, 2016 EPA letter informing Forest Service of ongoing
concerns). The ROD rejected that recommendation, stating that public review
would occur only if Project impacts were greater than currently predicted. ROD at
8, AR10529. As an independent grounds for finding a NEPA violation, Plaintiffs'
reliance on inter-agency disagreement is unpersuasive because the "ultimate
responsibility for ensuring compliance with applicable laws lies with the agency
undertaking the proposed action," here, the Forest Service. Ctr. for Biological
Diversity v. Bureau ofLand Mgmt., 833 F.3d 1136, 1150 (9th Cir. 2016). The fact
that "another agency might prefer a different approach is insufficient to
demonstrate that [the action agency] acted unreasonably." Id.
The question is whether the current record is sufficient to analyze the
environmental effects of the Project and provide for meaningful public-and
judicial-review of agency action. It is. In Great Basin, the agency failed to
provide any support for its use of baseline values of zero for several air pollutants,
arguing that it instead "double-checked" its analysis following the issuance of the
FEIS. Id. The Ninth Circuit held the agency's analysis was inadequate "because
the agency did not provide any support for its use of baseline values of zero." Id.
Similarly, in Oregon Natural Desert Association v. Jewell, the Ninth Circuit held
the agency violated NEPA when it failed to gather accurate baseline data on the
sage grouse when it assumed they were not at the site in question but made no
effort to verify that assumption. 840 F.3d 562, 569-70 (9th Cir. 2016). The Ninth
Circuit concluded that the agency's "inaccurate data and unsupported assumption
materially impeded informed decisionmaking and public participation." Id. at 570.
Here, the record includes baseflow modeling and data upon which
compliance with the Clean Water Act, Organic Act, and Montana water quality
standards has been assessed. There is a difference between a dearth of data, which
was the case in Great Basin and Oregon Natural Desert Association, and
conclusions drawn in contravention of presented data, which is the case here.
Because the record currently under review was subjected to public comment, and
NEPA itself provides safeguards for future review, 40 C.F.R. § 1502.9(c)(ii),
Plaintiffs' public review challenge lacks merit.
Postponed Critical Studies and Baseline Data
Plaintiffs further argue that the Forest Service failed to obtain baseline data
and improperly deferred analysis of the Poorman tailings facility through its
"approve now, study later" approach. NEPA regulations require an agency to
include information "relevant to reasonably foreseeable significant adverse
impacts" in an EIS if it is "essential to a reasoned choice among alternatives and
the overall costs of obtaining it are not exorbitant." 40 C.F.R. § 1502.22(a); Rock
Creek 11, 703 F. Supp. 2d at 1180. The Forest Service determined it had adequate
baseline and other information regarding potential environmental effects to make a
reasoned choice among alternatives and approve the Project operations adopted in
the ROD. See JFEIS at 564, AR8441.
Plaintiffs focus their challenge to the agency's baseline data in two areas.
First, Plaintiffs generally criticize reliance on data to be gathered during the
Evaluation Phase. Second, Plaintiffs argue that the specific decision to proceed
with the Poorman Tailings Site was based on inadequate information. The agency
fulfilled its obligations under NEPA in both respects.
Phased Approach Generally
As to Plaintiffs' more general challenge to the "phased approach," the
defendants repeatedly insist that certain data about site conditions will only be
obtained in the future, both in what the agency refer to as the "pre-evaluation
phase," see ARI 0781, and after the Evaluation Phase. The defendants maintain,
however, that an adequate baseline is present in the record, see JFEIS at 564-65,
AR8440-41, and additional data will merely determine whether the environmental
impacts remain within the scope identified in the JFEIS, ROD at 7-8, AR1052829. And, because the phases of the Project are interdependent parts of the same
proposal, they are required to be discussed in the same EIS. 40 C.F.R.
§ 1508.25(a)(l). The defendants cite to this Court's decision in Rock Creek II as
instructive because it recognized the legitimacy of the "phased" approach.
The project in Rock Creek II was slated to be completed in two phases, an
evaluation phase similar to the one at issue here, followed by a construction and
operation phase. 703 F. Supp. 2d at 1174. The agency in that case successfully
argued that a phased approach was acceptable, at least in part, because the second
phase was conditioned on additional agency approval. Id. at 1175. Federal
Defendants insist that such an "adaptive management" approach is necessary here
where the anticipated effects of later phases are not yet known. While the
proposition presents precarious risk of environmental harm, in this case using
available data to outline baseline conditions and projected impacts of the Mine
that acknowledge shortcomings, the Forest Service complied with NEPA. See
Great Basin, 844 F.3d at 1102. Although compliant with NEPA, those
shortcomings present problems for the agency in the context of the Clean Water
Act, the Organic Act, and NFMA as discussed above.
Plaintiffs also specifically challenge the baseline data for the Poorman
Tailings Impoundment Site. They point to the fact that the Poorman facility and
the Libby Plant site have only been conceptually designed, and argue such an
incomplete status precludes adequate NEPA analysis. JFEIS at 134-35, AR 799495; ROD at 9, AR 10617. Libby Placer Mining argues that this Court rejected a
similar attempt to rely on "inadequate" information in Rock Creek 11. 703 F. Supp.
2d 1152, 1180-81 (holding agency's decision to issue an ROD despite relying on
bull trout information the agency itself deemed "inadequate" was arbitrary and
capricious and violated 40 C.F.R. § 1502.22(a)).
Here, the JFEIS and ROD acknowledge that final facility design will depend
on additional site information to be obtained during future geotechnical
investigations. JFEIS at 134-35, AR 7994-95; ROD at 9, AR 10617. Federal
Defendants argue that approach is acceptable as "[a] final design of the tailings
impoundment facility itself is not necessary to disclose environmental impacts,"
because the agency already determined that the site is feasible for a stable tailings
impoundment. (Doc. 51at40-41, 49; Doc. 66 at 23); AR41974, 8685; JFEIS at
134, AR7994 ("[Montanore] would submit a tailings impoundment site
geotechnical field study plan to agencies for their approval before commencing
activities."). Design features, on the other hand, would shed no further light on
the environmental concerns surrounding the site. (Doc. 66 at 23.) They also note
the "competing interests involved" when dealing with mining on public lands.
United States v. Weiss, 642 F.2d 296, 298-99 (9th Cir. 1981). Federal Defendants
insist that Plaintiffs miss an important distinction between final facility design and
baseline site data necessary for a valid NEPA analysis.
Plaintiffs, on the other hand, argue there is an important difference between
gathering pre-Project baseline data and monitoring of Project activities, a
difference overlooked by the defendants. See N. Plains Resource Council, Inc. v.
Surface Transp. Bd., 668 F.3d 1067, 1084-85 (9th Cir. 2011) (explaining that
mitigation measures cannot be used as a "proxy" for baseline data); see Or.
Natural Desert Ass 'n, 840 F.3d at 570 (mitigation measures "are not a panacea for
inadequate data collection and analysis"). Plaintiffs argue accepted practice
within the Forest Service is to conduct detailed geotechnical data and related
analysis of a proposed tailings site prior to completion of an EIS, citing to two
mines in Arizona and Colorado where the Forest Service undertook NEPA
analyses to ascertain "baseline characteristics" before approving the main mine
proposals. See AR226836-37. Federal Defendants argue that while this may have
occurred, it by no means rises to the level of a regulatory obligation.
The JFEIS adequately explains that, despite the need for additional
information, the current information in the record was sufficient to assess the
environmental impacts based on the information gathered from the 3D model,
predictions that the Poorman site location will have less of an impact than the
originally proposed Little Cherry Creek site, and the 404 permitting requirements
by the Corps. See JFEIS at 566-67, AR8443-44. The record upon which the
agency considered the Poorman site is based primarily on information and data
about the Little Cherry Creek site, or the site proposed under Montanore' s chosen
alternative (Alternative 2). See JFEIS at 808-09 AR8685; AR1893334 (summary
of field exploration and laboratory tests of both sites, showing similar subsurface
geology). Federal Defendants maintain that data shows that the Poorman site is
feasible for a stable tailings impoundment facility. AR41880-41974 (ERO
Consultant Report); JFEIS at 802, AR8679-85 (discussing the suitability of the
Little Cherry Creek site). The JFEIS discusses why the information for the Little
Cherry Creek site was used to analyze the Poorman site, noting that the dynamic
loading conditions were the same, the sites "appear to have similar foundation
conditions," and the "site borrow soils and cyclone sand foundation materials were
assumed to be similar." JFEIS at 808-09, AR5685-86. That portion of the JFEIS
also states that "site specific data for the Poorman impoundment site are limited."
Id. Although it does not explain why that data is limited, the record adequately
explains why the Little Cherry Creek data was applied to the Poorman site.
Regardless of the applicability of the Little Cherry Creek data, Plaintiffs
insist the defendants cannot credibly argue that gathering of baseline data and
analysis could not have occurred at the Poorman tailings area and been made
subject to public review under NEPA. Framed by Plaintiffs, the question is not
whether the Cherry Creek data is accurate, but whether the information could have
been obtained prior to completing the EIS. Rock Creek II, 703 F. Supp. 2d at
1181; 40 C.F.R. § 1502.22(a). Federal Defendants insist that Plaintiffs do not
show that any "missing" data regarding the Poorman site to be "relevant to
reasonably foreseeable significant adverse impacts" or "essential to a reasoned
choice among alternatives." See 40 C.F.R. § 1502.22. Montanore further argues
that the baseline data from the Little Cherry Creek site is a good or better
surrogate than that used by agencies previously. See Great Basin, 844 F.3d at
1102 (endorsing use of air quality parameter data from a distant but comparable
area for evaluation of the project site effects). Moreover, as Montanore points out,
the two sites actually overlap. See AR 41930 (site locations).
In Northern Plains Resource Council, the court held that the agency failed
to take the requisite "hard look" under NEPA when it blamed its inability to obtain
baseline data on rough terrain and private land ownership. 668 F.3d at 1085. The
court was unpersuaded that the agency's excuses "relieved [it] of its requirement
under NEPA to gather information before it can make an informed decision." Id.
The court noted, however, had the agency attempted to obtain the data, that likely
would have been sufficient. Id. The court further criticized the agency's reliance
on "stale" data from ten to twenty years ago. Id. at 1085-86. Here, the sources
relied upon indicate some of the information about the Poorman site may be dated.
See AR109571-864 (1989 geotechnical report); AR80685-99 (1989 report);
AR37454 (1986 Forest Service report). And, the agency relied extensively on data
regarding the Little Cherry Creek site without explaining why such analysis could
not be performed at the Poorman site. That said, the analysis discussed above
shows there was not a complete dearth of data about to the Poorman site, unlike
the situation in Northern Plains.
Oregon Natural Desert Association and Great Basin both provide useful
guidance. In Oregon Natural Desert Association, the court concluded the agency
violated NEPA when it assessed baseline conditions for sage grouse habitat in the
affected area based on sage grouse activity in nearby areas. 840 F.3d at 568-70.
Dispositive of the court's conclusion was not the use of a similar, nearby site to
assess data, but rather the inaccurate assessment of that data. Id. at 569-70. The
court concluded that extrapolation of site data is not necessarily impermissible, so
long as such extrapolation is "based on accurate information and defensible
reasoning." Id. Relying on Oregon Natural Desert Association, the Ninth Circuit
in Great Basin upheld an agency's use of air pollution baselines more than 100
miles away from the project area on the grounds that the data came from a rural
area similar to the project area, the plaintiffs failed to show the agency's choice
"rested on inaccurate information or indefensible reasoning," and the agency
acknowledged the data's shortcomings. 844 F.3d at 1102.
Here, there is no indication, and Plaintiffs do not seem to argue, that the
agency inaccurately applied the data from the Little Cherry Creek site to the
Poorman site. Rather, the data is from a site that physically overlaps the selected
Poorman site, and the record explains why the data is relevant to the selection of
the Poorman site. Plaintiffs note that the EPA was once again critical of the
approved Project, and recommended performing the necessary studies beforehand.
See AR13163 (May 29, 2015 letter from EPA to Forest Service stating "EPA
recommended this site evaluation work be completed prior to the completion of
the Final EIS because it will inform the design of the [tailings site] and the
associated environmental impacts of the facility"); see also AR13157 (discussing
lack of information regarding impact on water resources). As discussed above,
however, the EPA's position is not dispositive of whether the Forest Service acted
arbitrarily and capriciously. Ctr.for Biological Diversity, 833 F.3d at 1150.
The only argument that sounds in "inaccurate information" or "indefensible
reasoning," Great Basin, 844 F.3d at 1102, is Libby Placer Mining's insistence
that the Forest Service failed to evaluate the potentially catastrophic failure of the
impoundment, (Doc. 60 at 20-21). Libby Place Mining maintains that the agency
provided an explanation counter to the evidence when the ROD said the Poorman
impoundment can be safe and secure where the JFEIS raised serious concerns.
See JFEIS at 810, AR8687 (discussing failure of impoundment); JFEIS at 153,
AR8013 ("The Poorman Tailings Impoundment Site would not provide sufficient
capacity for 120 million tons of tailings without a substantial increase in the starter
dam crest elevation if tailings were deposited at a density proposed in Alternative
2."). However, as argued by Federal Defendants, "embankment overtopping" was
considered in risk assessment, AR163680 (third party report), which determined it
to be an "extremely unlikely," ARI 73692, 173717 (risk chart), and the Poorman
site capacity is twice the amount of expected recoverable resources, see JFEIS at
273, AR8133 (anticipated removal of 120 million tons). Because the agency
considered the risk and provided a reasoned explanation for its decision to proceed
with the site despite that risk, Libby Placer Mining's challenge lacks legal merit
even if it raises significant safety concerns.
Finally, Plaintiffs challenge the Forest Service's baseline analysis regarding
groundwater contamination at the Poorman site. During the Operations Phase, it is
estimated that a maximum of 25 gpm of water would seep to groundwater under
the tailings impoundment, altering water quality. JFEIS at 738, AR8615.
According to Federal Defendants, all seepage will be intercepted by the pumpback
wells located immediately downgradient of the Poorman Impoundment, ROD at
38, ARl 0559, and the Forest Service anticipates natural attenuation and removal
of metals in the tailings water, see JFEIS at 755, AR8632 (Table 131); JFEIS at
739-40, AR8616-17 (based on conditions at Troy Mine). Federal Defendants also
argue there is no indication DEQ will not grant a mixing zone (which would
happen during permitting process), and Plaintiffs' argument to the contrary is
speculative. See ROD at 38, AR10559.
Plaintiffs challenge the Forest Service's reliance on an underground bedrock
ridge as a means of preventing contaminated groundwater from migrating from
under the Poorman impoundment to the Little Cherry Creek wetlands. Federal
Defendants argue that contrary to Plaintiffs' claim, the Forest Service did not state
that mitigation depends on an apparent bedrock ridge but the JFEIS assumed the
opposite of bedrock ridge blocking migrating groundwater, see AR7991
(discussing plan to survey wetlands), AR9645-9744 (Agencies Conceptual
Monitoring Plans), and subsurface data from area will be collected during design
process of the Poorman Impoundment, JFEIS at M-78, ARlOl 16. Moreover,
Federal Defendants argue Montanore is required to develop compensatory
mitigation that would create 7 .5 acres of wetlands and 4.5 acres of upland buffers.
See JFEIS at 1028, AR8905. The Project also requires Montanore to monitor
water levels in wetland, JFEIS at C-39, AR9685, vegetation, JFEIS at 1025,
AR8902, and deploy appropriate mitigation, id.
Although mitigation measures cannot be used as a "proxy" for baseline data,
N. Plains Resource Council, Inc, 668 F.3d at 1084-85, the record shows adequate
analysis of the baseline of wetlands and anticipated impacts of the Project, see
JFEIS at 794, AR8671 (not identifying any incomplete or unavailable geotechnical
information); see also JFEIS Appx C, AR9689-92 (2009 Montanore Groundwater
Dependent Ecosystem inventory). The JFEIS discusses the hydrogeology of the
tailings impoundment and land application disposal areas. JFEIS at 579, AR845657; AR191516-42 (third party hydrogeology report). The record evaluates and
discusses site conditions, including subsurface geotechnical features, enabling the
decision makers to make a reasoned choice among alternatives. See also JFEIS at
Because the agency's choice did not rest on inaccurate information or
indefensible reasoning, the use of data from the Little Cherry Creek site was not
arbitrary and capricious. Moreover, the Forest Service did not act arbitrarily and
capriciously when it concluded adequate baseline data existed to make a reasoned
choice among alternatives regarding the Poorman site.
Plaintiffs also challenge the JFEIS and ROD's postponed review of certain
mitigation measures. Under NEPA's implementing regulations, an EIS must
discuss "appropriate mitigation measures." 40 C.F.R. § 1502.14(±). The definition
of "mitigation" includes minimizing environmental impacts, rectifying impacts by
repairing, restoring, or rehabilitating the affected environment, reducing or
eliminating the impact over time through preservation or maintenance, and
compensating for the impact by providing substitute resources. 40 C.F .R.
§ 1508.20. The defendants argue that NEPA does not require a complete
mitigation plan, see Robertson, 490 U.S. at 352, but that mitigation must only be
discussed in sufficient detail to fully evaluate environmental effects, Laguna
Greenbeltv. US. Dep'to/Transp., 42 F.3d 517, 528 (9th Cir. 1994). They
contend the JFEIS meets those requirements.
Plaintiffs first argue that the Forest Service does not have a mitigation plan
to prevent the severe loss of flows and associated degradation in outstanding
resource waters in the Wilderness. The mitigation measures presented in the
record consist of concrete bulkheads, grouting, and buffers between overhead
water and mining operations. JFEIS at 162, AR8022. Plaintiffs argue that the
bulkheads do not provide necessary mitigation over the long term, and that the
effectiveness of grouting is uncertain and likely to decline after 50 years. JFEIS at
336, AR10374. Although the JFEIS discusses leaving in "pillars" of stone to
supplement bulkheads, JFEIS at 162, AR8022; JFEIS at 613, AR8490, Plaintiffs
argue that measure has not yet been submitted or planned, JFEIS at 614, AR8491,
and there is no evidence that they will last longer or be more efficient than
proposed measures. Plaintiffs further argue that the public must be allowed to
comment on the alternative barrier pillar design. Federal Defendants insist that
because the agencies considered the modeling of the bulkheads to be an equivalent
of the agencies' mitigation of leaving one or more barriers during the Operations
Phase, see Draft EIS at 245, 253, AR3961, 3969, the proposed modification is well
within the scope of appropriate responses to comments, see 40 C.F .R. § 1503 .4
(identifying modification of alternatives between EIS and FEIS as appropriate).
Federal Defendants argue that Okanogan Highlands, 236 F.3d at 475-76
(upholding general mitigation plans where actual adverse effects uncertain but EIS
extensively considered the potential effects of the Project), and Japanese Village,
LLC v. Federal Transit Administration, 843 F.3d 445, 470 (9th Cir. 2016)
(upholding use of adaptive monitoring plans), are instructive here as both cases
contain similar discussions of mitigation measures. See JFEIS at 610, AR8487
(recognizing the uncertainty of Project impacts); JFEIS at 611-15, AR8488-8492
(discussing the potential impacts in light of that uncertainty). Plaintiffs maintain
that while a "final" mitigation plan may not be required, "[pJutting off an analysis
of possible mitigation measures until after a project has been approved, and after
adverse environmental impacts have started to occur, runs counter to NEPA's goal
of ensuring informed agency decisionmaking." (Doc. 63 at 45-46 (quoting Great
Basin, 844 F.3d at 1107).) In Great Basin, the court allowed the deferral of final
mitigation plans because there was a "low probability and temporal remoteness of
adverse impacts." 844 F.3d at 1107. Plaintiffs insist this case is distinguishable.
As discussed in Okanogan Highlands, the adequacy of a mitigation
discussion is "one of degree." 236 F.3d at 476. Unlike the situation in Great
Basin, the record here shows Montanore and the Forest Service did not completely
defer mitigation efforts until after the Project was approved. Rather, this
mitigation discussion is comparable to Okanogan Highlands, where the Forest
Service prepared an EIS for a mining project that would produce a mine-pit lake,
concluded in the EIS that "seepage from the open pit is expected to have a low
overall impact on ground water quality in the vicinity of the pit," but nonetheless
discussed several mitigation measures, including monitoring. 236 F.3d at 471-75.
As discussed above, the mitigation plan here includes both measures to counteract
low flows-such as bulkheads, grouting, and pillars-and extensive monitoring.
It is intended to be flexible to adapt to future problems, see City of Carmel-By-
The-Sea v. US. Dep't a/Trans., 123 F.3d 1142, 1154 (9th Cir. 1997) (upholding
flexible plan), but addresses potential impacts of the Project, Okanogan
Highlands, 236 F.3d at 474-75. Although Plaintiffs challenge the efficacy of some
of the proposed mitigation measures, see also AR13494 (EPA stating that "JFEIS
does not propose adequate mitigation to offset impacts to aquatic resources that
may result from flow changes and groundwater drawdown"), the agency discussed
the measures' effectiveness, FEIS at 612-15, AR8489-92 (discussing buffers,
grouting, concrete bulkheads, and pillars); S. Fork Band Council of W Shoshone
ofNev. v. US. Dep 't ofInterior, 588 F.3d 718, 727 (9th Cir. 2009) (requiring
agency to discuss effectiveness of mitigation even in the face of uncertainty). The
Forest Service took the adequate "hard look" at mitigation measures related to
baseflow reductions of Wilderness streams.
Plaintiffs further challenge the lack of mitigation measures proposed for the
Poorman Tailings Impoundment Site. Pursuant to the JFEIS, Montanore was not
required to identify mitigation for three potential indirect effects of the Project: (1)
hydro logic impacts on wetlands from pumpback system, (2) reduce of flow in
Poorman and Little Cherry Creeks by the pumpback system, and (3) the effect on
hydrological support in the upper watersheds of East Fork Rock Creek and East
Fork Bull River. JFEIS at 1025, AR8902. Libby Placer Mining also argues that
there are no proposed mitigation plans for dust, groundwater contamination, or
improved stability of the Poorman site. See ROD at 36-39 AR10557-60
(discussing private property concerns). Federal Defendants claim that the Forest
Service's selection of the Poorman site was a mitigation measure in-and-of itself
because it had significantly less impact than other impoundment sites analyzed,
emphasizing fewer impacts on wetlands, Riparian Habitat Conservation Areas, and
the avoidance of permanent diversion of a perennial stream as discussed in the
FEIS. See ROD at 31, AR10552. Federal Defendants further note mitigation
measures are proposed, including the installation of pumpback wells downgradient
of the tailings impoundment to collect any seepage not captured by the drain
system, ROD at 38, AR10559, the wetting of the tailings impoundment to prevent
dust, ROD at 37, AR10558, air quality monitoring, ROD at C.2, AR10742-45, and
measures to reduce noise, ROD at 5, AR10613.
Libby Placer Mining's challenge is primarily related to "dewatering," which
Federal Defendants contend lacks merit because the flow in Libby Creek is
expected to increase during all phases of the Project, FEIS Table 110, AR8546,
and Poorman Creek is expected to increase during the Construction Phase, FEIS
Table 109, AR8535, and decrease only slightly (0.18/19 cfs) during the Operation
and Closure Phases, JFEIS Table 111, AR8539; JFEIS Table 112, AR8543; JFEIS
Table 113, AR8546. Federal Defendants further insist that Poorman Creek is
already dewatered under baseflow conditions, Aquatic BiOp at 102, AR221625,
and any change under the Project is insignificant, id. at 48, AR212609 (explaining
that Project effects would not change currently impassable stretches for bull trout).
Federal Defendants maintain that where action impacts are insignificant,
mitigation measures not required, citing Transmission Access Policy Study Group
v. F.E.R.C., 225 F.3d 667, 736 (D.C. Cir. 2000).
Federal Defendants' argument that the agency is not required to consider
mitigation because of the "insignificance" of the reduction is not persuasive given
the fact that reductions in Poorman Creek are anticipated to exceed the 10 percent
threshold for state water quality degradation. As argued by Plaintiffs,
uncertainties concerning the extent of the impact do not relieve the Forest Service
of its responsibility under NEPA to analyze mitigation. See S. Fork Bank Council,
588 F.3d at 727 (NEPA requires mitigation measures be evaluated "with sufficient
detail to ensure that environmental consequences have been fairly evaluated").
The failure to consider mitigation in relation to the pumpback well system and
baseflow reductions in Poorman Creek was arbitrary and capricious.
In its reply, Libby Placer Mining raises for the first time an argument
regarding the agency's choice of, and mitigation measures related to, moving the
primary Mine access road. Federal Defendants correctly contend that because that
argument was only raised in the reply, it is not properly before the Court. Dilley v.
Gunn, 64 F.3d 1365, 1367 (9th Cir. 1995).
Poorman Site Evaluation Criteria
Finally, Libby Placer Mining challenges the Forest Service's application of
evaluation criteria in selecting the Poorman site. Libby Placer Mining is
specifically concerned about the site location as its property lies only 300 feet to
the east. AR9509. Libby Place Mining argues that the Forest Service was
arbitrary and capricious in failing to apply a 2000-foot "buffer," which was
applied to other potential alternative impoundment sites, to the Poorman and Little
Cherry Creek sites as screening criteria for consideration in the EIS. It contends
that ifthe 2000-foot buffer were applied to the Poorman site, it would have been
eliminated from consideration as an alternative because of its proximity to Libby
Placer Mining's private property. Montanore asserts that the 2000-foot
"adjustment" was applied to the other potential sites to standardize the disturbance
areas for the purposes of screening in light of the 1,5 00 to 2, 000 acres already
determined for the facilities proposed for the Poorman and Cherry Creek sites.
See AR68018. According to Montanore, the 2000-foot adjustment was used at the
other sites to make them more comparable to the Poorman and Cherry Creek sites,
see JFEIS at 259, AR8119, AR158939, not as an independent buffer zone.
The agencies used three successive levels of screening to narrow the range
of tailings impoundment options. See AR41930-44 (third party consultant report
on screening process). For Level I screening, the agencies evaluated twenty-two
sites, including the Little Cherry Creek site and the Poorman Creek site. See
AR41928 (Figure 5, map of proposed sites). Libby Placer Mining insists the
application of 2000-foot buffer was one of the criteria used for Level I screening
purposes and used to surround the actual area of the proposed impoundment. See
AR41930; see e.g. AR68019 (showing buffer zone in relation to Crazyman Creek
and Upper Hoodoo Creek impoundment sites). The buffer was not applied,
however, to the Little Cherry Creek and Poorman Creek sites and the buffer on the
Poorman site is less than 2,000 feet on the southeast and east sides of the
impoundment footprint. See AR68019; see also JFEIS at 153, AR8013 ("Private
property not owned by [Montanore] is located 300 feet east of the southern twothirds of where the tailings dam alignment would be located.").
Libby Placer Mining argues that the 2000-foot buffer was important to the
agencies' consideration as it determined impoundment capacity on a preliminary
basis. See AR41931 (referencing capacity for expansion). The record indicates
the Poorman site has no room for expansion. See ARI 73701, 41379, 11419. The
close proximity of Libby Placer Mining's private land is also apparent, JFEIS,
Figure 18, AR9518, and the record further discusses the limiting role of the site's
relatively flat topography, AR38276, 41931. Libby Placer Mining insists that the
Forest Service's failure to apply the 2000-foot buffer to the Poorman site
ultimately allowed for the selection of an unsuitable impoundment site. In making
its argument, Libby Placer Mining relies on Oregon Natural Desert Association,
where the Ninth Circuit held the agency violated NEPA when it failed to gather
accurate baseline data on the sage grouse. 840 F .3d at 569-70. Libby Placer
Mining insists that similar to the situation there, the Forest Service's "inaccurate
data and unsupported assumption [regarding the Poorman site] materially impeded
informed decisionmaking and public participation." Id. at 570.
The defendants insist the risk assessment process identified unique risks
based on proximity to private property and implemented risk management plans in
light of those concerns. See ARI 73698-701 (March 2009 Risk Assessment) (also
noting that the "facility does not have any room to expand" and "is also more at
risk in terms of complexity of operations"). The record shows that the final four
impoundment sites were around the same size, AR41942 (Little Cherry Creek (426
acres), Poorman (397 acres), Crazyman Creek (343 acres), Upper Hoodoo Creek
(3 56 acres), and that the total disturbance areas are also similarly sized across the
four, see AR68018 (mapping with buffer). Although Libby Placer Mining may
disagree with the Fore st Service's analysis, the record shows the agency
considered the relevant factors and articulated a rational connection between the
facts found and the choices made in its application of the site evaluation criteria.
Moreover, public participation was not materially impeded as the application of
the 2,000-foot buffer was addressed during the public comment stage. See
AR10134-36 (FEIS Response to Comments 323-16, -17, -18).
The Forest Service acted arbitrarily and capriciously in approving the
Project despite noncompliance with Montana nondegradation standards in
violation of the Clean Water Act, the Organic Act, and NFMA. The Forest
Service also violated NEPA when it did not consider mitigation measures for
Poorman Creek. The Forest Service met its statutory obligations in all other
Accordingly, IT IS ORDERED that the parties' motions for summary
judgment (Docs. 35, 39, 48, 52) are GRANTED in PART and DENIED in PART.
Plaintiffs' motions (Docs. 35, 39) are GRANTED as to their claims related to
Montana's non-degradation standards under the Clean Water Act and Organic Act,
theirNFMA claim related to FW-DC-WTR-02 and the Inland Native Fish
Strategy, and their NEPA claim related to mitigation of the Poorman site. The
defendants motions (Docs. 48, 52) are GRANTED in all other respects. The
matter is remanded for further review consistent with this opinion.
~'day of May, 2017.
, District Judge
United States Dist ict Court
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