The U.S. Fish & Wildlife Service (FWS) today asked a federal court to delay a lawsuit challenging its evaluation of the Rock Creek Mine while the agency reconsiders its analysis. The Rock Creek Mine, if constructed, would extract copper and silver ore through tunnels beneath the Cabinet Mountains Wilderness Area in Montana. Although the mine would operate from Forest Service land, FWS is responsible for protection and recovery of endangered species like the grizzly bear and bull trout which inhabit the nearby Cabinet Mountains Wilderness Area and Rock Creek. FWS evaluated the Rock Creek Mine in December 2000 and concluded that it would not jeopardize these species. Eight conservation groups, represented by Earthjustice, filed a lawsuit in federal district court in Montana challenging that finding on August 27, 2001.
The mine would degrade over 7,000 acres of habitat vital to the survival of the Cabinet-Yaak grizzly bear population, would destroy bull trout habitat in Rock Creek, and would discharge up to three million gallons of waste water a day into the Clark Fork River. FWS asked the Court to stay the lawsuit to allow the agency to “re-evaluate the analyses and conclusions” in its December 2000 finding.
“We’ve said all along that this mine cannot be built without pushing the Cabinet’s fragile grizzly bear population and bull trout in Rock Creek to extinction,” said Mary Mitchell of the Rock Creek Alliance. “FWS’ decision to revisit its evaluation of the mine means that the agency no longer has faith in its previous analysis and must take a look at the science instead of ignoring it.”
The tiny remnant Cabinet-Yaak grizzly population, believed to number as few as 11 bears, is teetering on the edge of extinction. Grizzly bear habitat in the Cabinet-Yaak Grizzly Bear Recovery Area has been lost to mining, logging, and other human activities and today grizzlies are hemmed in by human development on all sides. With another huge mine located on the other side of this narrow strip of Wilderness, the Rock Creek mine will essentially split grizzly bear habitat in the Cabinet Mountains portion of the recovery area in two, an outcome that will likely drive this grizzly population to extinction.
“The agency’s previous analysis assumed, without ever bothering to check, that you could minimize the mine’s devastating effects to such a small population of bears,” said Cesar Hernandez of Cabinet Resource Group. “We’re hopeful that FWS’ second look at the science will be more thorough and lead the agency to conclude that these bears urgently need greater protection, not another massive mine.”
“The bear habitat that remains within the Cabinet-Yaak Recovery Area is some of the most productive in the lower-48 states,” added Margot Higgins, a spokesperson for the Sierra Club’s Grizzly Bear Ecosystems Recovery Project. “The bears that depend on this area need that habitat protected if they’re going to survive and recover.”
The groups believe that the same is true of FWS’ conclusions about Rock Creek’s bull trout, another federally protected species. FWS had earlier brushed aside its own concerns that the mine could wipe out the bull trout in Rock Creek and decided that the population was expendable since there are bull trout elsewhere in the Columbia River Basin. But the agency never looked at other threats to bull trout in the Basin to inform its judgment.
“Rock Creek’s bull trout population is one of the last bull trout strongholds in the lower Clark Fork River basin and is vital to recovering this native fish” said Liz Sedler of the Alliance for the Wild Rockies. “If the agency follows the science, it cannot simply write off this important population.”
Sedler also noted that “FWS recently agreed to identify ‘critical habitat’ for bull trout under the Endangered Species Act, a designation that will certainly include Rock Creek. The designation will raise to a new level the legal requirement that FWS provide protection from activities – like the Rock Creek Mine – that would destroy habitat essential to protecting and recovering these fish.”
Although FWS says it wants to reconsider its previous evaluation, the agency has taken the unusual step of asking the court to allow its existing evaluation to remain in effect and to delay the litigation “indefinitely” while it reexamines the mine’s impacts. While the conservation groups support the agency’s decision to take a second look at its flawed analysis, they are concerned that FWS’ request to leave that analysis in place presupposes the outcome of that reevaluation.
“If the Service is serious about reconsidering and correcting the fundamental problems in its original biological opinion, it is a welcome, if belated step in the right direction,” said Sanjay Narayan of Earthjustice, one of the lawyers handling the case. “But if the Service just wants more time to try to paper over these legal problems and still approve the mine, it won’t work,” he concluded.
FWS’ reconsideration follows close on the heels of the Bush administration’s recent decision to grant the permits necessary for the Rock Creek Mine to move forward. The Forest Service, which manages the lands where the mine would be constructed, quietly issued those permits on December 26, 2001. The Forest Service claimed that the 1872 Mining Law required them to permit the mine, despite its impacts on the Wilderness Area. Because the Forest Service relied on portions of FWS’ analysis in issuing those permits, however, FWS’ announcement also raises questions about the thoroughness of the Forest Service’s environmental analysis.
“In permitting the Rock Creek Mine, the Bush Administration handed Sterling Mining Co. a generous Christmas gift,” said Lexi Shultz, Legislative Director for the Mineral Policy Center. “But like all mines allowed under the 1872 Mining Law, it was a gift to a mining company at the expense of the American public. Fish and Wildlife’s action today should tell the Administration that it needs to take back its gift because it’s full of holes and doesn’t fit,” she added.
The plaintiffs in the litigation that prompted FWS’ reconsideration of its analysis of the Mine are the Rock Creek Alliance, Cabinet Resource Group, Sierra Club, Trout Unlimited, Idaho Council of Trout Unlimited, Pacific Rivers Council, Mineral Policy Center, and Alliance for the Wild Rockies. The plaintiffs are represented in the lawsuit by lawyers from Earthjustice.