Cabinets v. U.S. Dep't of Agric., CV 16-53-M-DWM (Consolidated with Case No. CV 16-56-M-DWM).

• Court: United States District Courts. 9th Circuit. United States District Court (Montana)
• Citation: 254 F.Supp.3d 1241
• Docket Number: CV 16-53-M-DWM (Consolidated with Case No. CV 16-56-M-DWM).
• Parties: SAVE OUR CABINETS, Earthworks, and Clark Fork Coalition, Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants, Libby Placer Mining Company, Plaintiff, v. United States Forest Service, et al., Defendants, and Montanore Minerals Corporation, Defendant–Intervenor.
• Decision Date: 30 May 2017

254 F.Supp.3d 1241

SAVE OUR CABINETS, Earthworks, and Clark Fork Coalition, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants,

Libby Placer Mining Company, Plaintiff,
v.
United States Forest Service, et al., Defendants,
and
Montanore Minerals Corporation, Defendant–Intervenor.

CV 16-53-M-DWM (Consolidated with Case No. CV 16-56-M-DWM).

United States District Court, D. Montana, Missoula Division.

Signed May 30, 2017

Kristine Marie Akland, Akland Law Firm, PLLC, Missoula, MT, Jeffrey C. Parsons, Roger Flynn, Lyons, CO, for Plaintiffs, Save Our Cabinets, Earthworks, and Clark Fork Coalition.

Alan D. Greenberg, US Department of Justice Environmental Defense Section, Denver, CO, Mark Steger Smith, Victoria L. Francis, Office of the U.S. Attorney, Billings, MT, Melissa Anne Hornbein, Office of the U.S. Attorney, Helena, MT, for Defendants, United States Department of Agriculture, et al., United States Forest Service, et al.

254 F.Supp.3d 1246

David Wilson, K.W., Jr., Morrison, Sherwood, Wilson & Deola, PLLP, Helena, MT, for Plaintiff, Libby Placer Mining Company.

Mark L. Stermitz, Daniela E. Pavuk, Crowley Fleck PLLP, Billings, MT, Robert Tuchman, Holme Roberts & Owen, LLP, Denver, CO, for Defendant–Intervenor, Montanore Minerals Corporation.

OPINION and ORDER

Donald W. Molloy, District Judge United States District Court

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.

FACTUAL BACKGROUND

I. 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, AR10522.¹ The Project will affect private, state, and 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

254 F.Supp.3d 1247

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, AR10530–31. 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.

II. Agency Action

In order to operate, the Project requires a Plan of Operations approved by the Forest 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 alternative 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,

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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, AR11014. The DEQ approved amendments to Montanore's existing DEQ Operating Permit 00150 to conditionally allow only the Evaluation Phase. Id. ; ROD at 1, AR10522.

III. Plaintiffs' Claims

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.

IV. Amicus

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...