Ksanka Kupaqa Xa'Lcin v. U.S. Fish & Wildlife Serv.

Decision Date14 April 2021
Docket NumberCV 19-20-M-DWM
Parties KSANKA KUPAQA XA'LCIN, et al., Plaintiffs, v. UNITED STATES FISH AND WILDLIFE SERVICE, et al., Defendants, and RC Resources, Inc., Defendant-Intervenor.
CourtU.S. District Court — District of Montana

Elizabeth B. Forsyth, Pro Hac Vice, Earthjustice, Seattle, WA, Katherine K. O'Brien, Earthjustice Legal Defense Fund, Bozeman, MT, for Plaintiffs.

Devon Lea Flanagan, Davis Aaron Backer, U.S. Department of Justice - E.N.R.D. General Litigation, Washington, DC, John M. Newman, U.S. Attorney's Office, Missoula, MT, Mark Steger Smith, U.S. Attorney's Office, Billings, MT, Michael Richard Eitel, U.S. Department of Justice, Environment and Natural Resources Division, Denver, CO, for Defendants United States Fish and Wildlife Service, Chad W. Benson, United States Forest Service.

Paul J. Lopach, Robert Tuchman, Bryan Cave Leighton Paisner, LLP, Denver, CO, for Defendant-Intervenor.


Donald W. Molloy, District Judge This case again challenges decisions by the United States Fish and Wildlife Service and the United States Forest Service (collectively "Federal Defendants") regarding the Rock Creek Mine Project, a proposed mine beneath and adjacent to the Cabinet Mountains Wilderness. The substantive and procedural history of the mine extends back over two decades. To the parties, this litigation must seem a Sisyphean task; to the agencies, a Procrustean bed. Nonetheless, the byzantine legal and administrative issues must be resolved before any adit or mining can lawfully be approved. In sum, the Project has been proposed, evaluated, approved, and litigated as a two-phased venture since at least 2000, entailing an evaluation adit (Phase I) and mine development, operations, and reclamation (Phase II). FWS_012450–511 (2003 ROD); see FS_118334–35 (summary of ESA history). Most recently, however, the agencies have narrowed their analysis and approval to Phase I.

Defendant-Intervenor RC Resources holds the Project's principal permits and owns the mineral estate for the Rock Creek deposit. FS_118275–76. Plaintiffs are tribal and environmental organizations that claim Federal Defendants violated the Endangered Species Act ("ESA") by failing to reinitiate consultation on the grizzly bear (Count I); issuing an unlawful biological opinion (Count II); and approving a record of decision without a valid biological opinion, (Count III). (Doc. 99.) Having reviewed the briefing and heard argument, Plaintiffs are correct that it was arbitrary and capricious for Federal Defendants to approve Phase I without considering the environmental effects of Phase II. Because this warrants setting aside the relevant decision documents and remanding to the agency, it is not necessary to address the merits of Plaintiffs’ grizzly bear challenge.

I. Project Background

While the Mining Act of 1872 and the Organic Act of 1897 confer certain mining rights within national forests, 30 U.S.C. § 26 ; 16 U.S.C. § 478, Section 7(a)(2) of the ESA requires the Secretary of the Interior to ensure that any action "authorized, funded, or carried out by" a federal agency is not likely to jeopardize the continued existence of any threatened or endangered species, 16 U.S.C. § 1536(a)(2). If the proposed action "may affect" a listed species or critical habitat, the agency proposing the action (action agency) must enter into formal consultation with the consulting agency, which then issues to the Secretary a "biological opinion" evaluating the nature and extent of jeopardy posed to that species by the action. § 1536(b). The action agency must provide the Secretary with the "best scientific and commercial data available." § 1536(a)(2).

In this case, the authorization process began in the late 1980s when the ASARCO first considered the development of a hard rock mine at the Rock Creek site. See FS_118276. In 2000, the Fish and Wildlife Service issued its first biological opinion for the project, which "proposed [a] 10,000-ton-per-day" mine that included "the development of an evaluation adit, a 5.5-year construction period, a 27.5-year operation/production period, and a 2-year reclamation period, for a 35-year or more life of mine." FWS_017202 (2000 BiOp). The Fish and Wildlife Service concluded that the project would not jeopardize bull trout but would jeopardize grizzly bears, though the risks for grizzly bears could be mitigated. FS_118334; FWS_028387–88. The Forest Service issued an environmental impact statement ("EIS") in 2001 and a record of decision ("ROD") approving the project in 2003. FS_006517, 118334; FWS_028387–88. But, following legal challenges, the agencies voluntarily withdrew their decision documents and additional consultation on grizzly bears and bull trout occurred during 2002 and 2003. FWS_023721 (2003 BiOp), FWS_028388.

In May 2003, the Fish and Wildlife Service issued a second biological opinion containing no-jeopardy determinations for both grizzly bears and bull trout. FS_118334; FWS_028388. Conservation groups challenged that opinion in this Court, which ruled in 2005 that the Fish and Wildlife Service had violated the ESA as it relates to both species. FWS_028388; Rock Creek All v. U.S. Fish & Wildlife Serv. , 390 F. Supp. 2d 993 (D. Mont. 2005). In December 2004, while that litigation was pending, the agencies determined reinitiation of consultation was required "based on new information that revealed effects of the action that may affect grizzly bears in the Cabinet-Yaak Ecosystem to an extent not previously considered," specifically due to new mortality data. FWS_028388.

In 2006, the Fish and Wildlife Service issued a third biological opinion, addressing the new grizzly bear information and the Court's 2005 order. FWS_028383. That opinion also reflected the abandonment of a nearby mining project, the Montanore Mine, which improved the environmental baseline for both grizzly bears and bull trout. FWS_028389. The Fish and Wildlife Service "supplemented" the opinion in 2007. FWS_002987. In response to further legal challenges, this Court invalidated the Forest Service's 2001 EIS and 2003 ROD, citing deficiencies in the analysis of and mitigation for project impacts on bull trout. FWS_002987; FS_006517, 006567; Rock Creek All. v. U.S. Forest Serv. , 2010 WL 1287604 (D. Mont. Mar. 29, 2010) ; Rock Creek All. v. U.S. Forest Serv. , 703 F. Supp. 2d 1152 (D. Mont. 2010), aff'd in part 663 F.3d 439 (9th Cir. 2011).

Meanwhile, plans to develop the nearby Montanore Mine were resuscitated, leading to the Fish and Wildlife Service's issuance of a 2014 biological opinion for that project in which the agency concluded that the Montanore Mine would not jeopardize grizzly bears or bull trout. FS_021428 (bears), 021191 (trout). As was the case with the Rock Creek Project, the Fish and Wildlife Service determined that the influx of mine employees would have the most effect on grizzly bears, but that bear specialist and wildlife law enforcement positions in the mine mitigation plan would yield "a net reduction in the overall existing mortality risks to grizzly bears on both national forest and private lands within the action area and across the [Cabinet-Yaak ecosystem]." FS_021530. In 2017, this Court set aside the agencies’ approval of the Montanore Project and vacated the 2014 biological opinions and 2016 ROD. Save Our Cabinets v. U.S. Fish & Wildlife Serv. , 255 F. Supp. 3d 1035 (D. Mont. 2017) (ESA merits decision); Save Our Cabinets v. U.S.D.A. , 254 F. Supp. 3d 1241 (D. Mont. 2017) (CWA and NFMA merits decision); Save Our Cabinets v. U.S. Fish & Wildlife Serv. , 2017 WL 2829679 (D. Mont. June 29, 2017) (vacatur order). Relevant here, the Court concluded the Fish and Wildlife Service's no-jeopardy determination was arbitrary and capricious in the case of both bull trout and grizzly bears. 255 F. Supp. 3d at 1051, 1063.

In 2017, the Fish and Wildlife Service determined that reinitiation of consultation concerning the Rock Creek Mine's impact on bull trout was necessary due to reduced flows. FWS_039793–94. This resulted in the issuance of a new bull trout biological opinion. FWS_002980–81, 002982–3092. The agency also issued a second supplement to its 2006 grizzly bear biological opinion in which it updated "basic species information" but determined that reinitiation of consultation "was not necessary." FWS_002980-81, 003093–119.

In August 2018, the Forest Service issued its most recent record of decision for the Rock Creek Mine Project ("2018 ROD"). FS_118269–618. However, breaking with prior decision documents, the 2018 ROD analyzed and approved only Phase I of the Project. FS_118275–76. Unsurprisingly, removing Phase II from consideration drastically reduced both the scope of the activity and the potential environmental impacts. For comparison, Phase II, or mine development, would involve the removal of 10,000 tons of ore per day with a production life of 26 to 30 years. FWS_002989. Mine activity would disturb over 400 acres of land, cause drawdown of stream levels, and require the construction of roads. FWS_002989–91. On the other hand, Phase I involves only the excavation of an evaluation adit. FWS_002989. Construction of the adit is anticipated to take two years and the estimated disturbance area encompasses approximately 19.6 acres, including only 10.4 acres of National Forest System land. FWS_002989; FS_118281. Existing roads would be used to access the site, FWS_002989, although two new culverts would be installed and road improvements would be necessary, FWS_041201. Only 131 workers would be required, including four employees associated with wildlife work. FS_0118290. Though the evaluation adit will result in groundwater drawdown, the proposal is not expected to affect stream baseflows. FS_118287. The purpose of the adit is to obtain additional data to evaluate the Rock Creek deposit, future mine design, and potential environmental impacts in anticipation of Phase...

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