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District Court Decision on Cabinet Mountains Wilderness Mines: A New Leverage Point for Challenges to Fossil Fuel Development?

Monday, June 26, 2017

Robert Kelsey

Associate Editor, Environmental Law Reporter

On May 30, 2017, in two separate opinions, a Montana district court overturned a U.S. Forest Service approval of a mine proposal submitted by Hecla Mining Company. In the first case, the court held that the approval violated the Clean Water Act (CWA), National Environmental Policy Act (NEPA), and National Forest Management Act (NFMA). The second case concerned violations of the Endangered Species Act (ESA). The ore vein Hecla sought to mine ran beneath the federally protected Cabinet Mountains Wilderness. Environmentalists challenged the approval of the project, arguing that the project would affect water quality and stream flows and jeopardize federally protected grizzly bear and bull trout populations. They also challenged the Forest Service's consideration of mitigation measures and public access under NEPA.

Cabinet Mountain Wilderness near Libby, Montana (Photo: Scott Butner)

In the first case, the court held that the Forest Service acted arbitrarily and capriciously in approving the project. The project failed to comply with Montana’s nondegradation standards and, therefore, was in violation of the CWA and NFMA. In addition, the Forest Service failed to consider mitigation measures for a creek in violation of NEPA. In the second case, the court held that the approval violated the ESA. The Forest Service had relied on the U.S. Fish and Wildlife Service’s (FWS’) biological opinion (BiOp) for the project, which concluded the project was not likely to jeopardize grizzly bears or bull trout and not likely to destroy or adversely modify bull trout critical habitat. The conclusion was based in part on proposed mitigation measures to reduce human-caused grizzly mortalities. But the proposed measures were no different than mitigation measures already implemented in the ecosystem, which have not resulted in reduced mortalities. FWS’ no-jeopardy conclusion was therefore flawed, the district court ruled, and the Forest Service's reliance on them was arbitrary and capricious.

These decisions gave a big boost to those who oppose the development of public lands. Katherine O’Brien, a lawyer with Earthjustice, said the court decision "underscores how wrong it is to site major industrial facilities on the doorstep of public wilderness lands that provide irreplaceable habitat." Moreover, this case may help bolster subsequent challenges. Days after the decision, the Trump Administration pushed to have the Forest Service approve Arch Coal’s request to expand the West Elk mine in Colorado by leasing 1,700 acres of roadless wildlands in the Gunnison National Forest. Arch Coal plans to bulldoze more than six miles of road and build as many as 48 drilling pads with vents to release methane. Allison Melton, Staff Attorney with the Center for Biological Diversity, said “[b]ulldozing important aspen groves to mine coal and vent methane into the atmosphere is exactly the sort of senseless destruction we’ve come to expect from the Trump administration.” Industry officials, meanwhile, said the expansion would be good for the economy. Stan Dempsey, president of the Colorado Mining Association, said “This is an important mine to Colorado. . . . It’s time for the agency to take the right action.”  The proposal is now in the comment phase awaiting final approval.

Notably, the Hecla Mine decisions—a win for environmentalists--turned on flawed science and arbitrary decisionmaking. The current administration seems less concerned with formality and more with executing its agenda as quickly as possible. Time will tell whether the administration’s preference for swiftness over formality ultimately hinders the very agenda it seeks to implement.  

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