by Michael Jamison of the Missoulian
TROY – A controversial mine that would tunnel beneath the Cabinet Mountains Wilderness was put on hold Monday when a federal judge rejected Forest Service approval of the proposed copper and silver operation.
“From our perspective, this is definitely good news,” said Tim Preso, the attorney representing a coalition of environmentalists that has long sought to block the Rock Creek Mine. “I would hope that this latest setback would prove to be the last.”
Mining company officials, however, vowed to “hang in there.”
“We always knew this was going to be a long and involved process,” said John Shanahan, president of Revett Minerals. “It’s definitely a setback, but for now, we remain optimistic.”
The mine, if approved, would be located north of Noxon, and comes with an expected lifespan of 35 years. It also comes with several miles of road into the Cabinets, as well as rail stations, pipelines, power lines, a tailings treatment plant and other infrastructure on more than 1,500 acres.
At full capacity, it should yield an estimated 10,000 tons of copper and silver ore per day, and employ some 300 people.
The project, however, has come under fire for years, as downstream residents worry about river pollution. Critics have claimed that the underground mine could cause wilderness lakes to drain, and have raised concerns about protected bull trout and grizzly bears.
A host of conservation groups filed suit in 2005, challenging a Forest Service record of decision that approved the mine. That case, however, was left in limbo when U.S. District Judge Donald Molloy ordered – in a separate suit – that the U.S. Fish and Wildlife Service had erred in declaring that the mine presented no threat to protected species.
The USFWS returned to the drawing table in the face of that ruling, but again issued a “no jeopardy” opinion regarding endangered species.
That move, Preso said, reactivated the Forest Service’s approval, as well as court challenges to that approval.
In the meantime, another coalition of critics has contested the latest USFWS decision.
Mine company executives had previously defended their plans, saying mitigation measures would actually improve trout and bear habitat. They cited studies dating as far back as the mine proposal’s origins in 1987.
Shanahan repeated his conviction that the mine can “be an environmentally responsible operation,” adding that “we don’t want to do it any other way.”
Whether he gets to do it at all, however, remains unknown.
On Monday, Molloy delivered a mixed bag of rulings, siding with environmentalists on some counts and with federal land managers on others.
Molloy tossed claims grounded in the Endangered Species Act and the Clean Water Act, but upheld other charges – namely that the Forest Service, in approving the mine, had violated both the National Environmental Policy Act and the Forest Service Organic Act.
But because no written opinion accompanied the order, Preso said, “it’s not entirely clear on what grounds Judge Molloy made his decision.”
What is clear, however, is Molloy’s order that “the Forest Service’s decision to approve the Rock Creek Mine project is vacated, and the 2003 record of decision and 2001 final environmental impact statement are set aside and remanded to the Forest Service for further action, consistent with the court’s forthcoming opinion.”
“He sent the Forest Service back to the drawing board,” Preso said, “but until we see his opinion we still don’t know exactly what he wants them to do.”
“We’re still working to understand what the order is,” agreed Janette Turk, executive specialist on the Kootenai National Forest. But it does appear, she said, that the project is once again on hold.
“What he said is that the decision to approve the mine was faulted,” Preso said, “and it cannot go forward.”
“We all really just have to wait for the opinion to come out before we know what actions, if any, need to be taken,” Shanahan said.
This is the third time public lawsuits have invalidated federal agency approvals at the mine, and “this third strike against the mine should end the game,” said Jim Costello, of the Rock Creek Alliance.
The Forest Service could appeal, Preso said, or could attempt to yet again revise its approval to comply with federal law. Or, he said, the Bush-era decision could be wholly revisited by the Obama administration, “which is something we’d certainly welcome. We’ve always maintained that mining beneath a designated wilderness area wasn’t a very good idea.”
Preso represented the plaintiff groups for Earth Justice. Challenging the Forest Service decision were the Rock Creek Alliance, Clark Fork Coalition, Cabinet Resource Group, Montana Wilderness Association, Earthworks and Alliance for the Wild Rockies.
Challenging the USFWS decision were Rock Creek Alliance, Cabinet Resource Group, Sierra Club, Earthworks, Alliance for the Wild Rockies, Natural Resources Defense Council, Trout Unlimited, Idaho Council of Trout Unlimited, Pacific Rivers Council and Great Old Broads for Wilderness.