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Idaho Conservation League v. Lannom

United States District Court, D. Idaho

August 2, 2016

IDAHO CONSERVATION LEAGUE, THE WILDERNESS SOCIETY, EARTHWORKS, FRIENDS OF THE CLEARWATER, WILDERNESS WATCH, Plaintiffs,
v.
LANNOM, KEITH B., Payette National Forest Supervisor, and U.S. FOREST SERVICE, Defendants.

          MEMORANDUM DECISION

          B. Lynn Winmill, Chief Judge

         INTRODUCTION

         The Court has before it cross-motions for summary judgment filed by plaintiffs, defendants, and intervenors. The Court heard oral argument on June 14, 2016, and took the motions under advisement. For the reasons explained below, the Court will grant in part and deny in part each of the motions.

         SUMMARY

         This case examines how much mining should be allowed in a wilderness area. Specifically, the Court is reviewing the Forest Service’s decision to allow drilling, road reconstruction, and the use of motorized vehicles and heavy equipment at the Golden Hand Mine in the Frank Church - River of No Return Wilderness Area.

         Mining on federal lands is governed by the 1872 Mining Law. It declares that “all valuable mineral deposits” on federal lands are “free and open to exploration and purchase.” Nearly 100 years later, Congress passed the Wilderness Act for the purpose of setting aside federal lands “where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.” The Frank Church Wilderness was created pursuant to the Wilderness Act.

         The conflict between these laws is obvious - mining will never be compatible with wilderness. Yet Congress has decreed that they must co-exist at times. The proponents of the Wilderness Act could not convince Congress to completely ban all mining in wilderness areas. Instead, a compromise was reached that allowed valid mining claims made prior to wilderness designation to continue.

         The Golden Hand mine was discovered in 1889. It has not been worked for decades, but its current owner - AIMMCO - wants to reopen it to search for gold and silver. Before it can do so, however, AIMMCO must first prove to the Interior Department that it has valid mining claims on the mine. To prove validity, AIMMCO must show that the claims contain a marketable amount of mineral. And to obtain the necessary proof, AIMMCO must be allowed to do assessment work including some drilling, trenching, and road reconstruction.

         AIMMCO submitted a plan to do that assessment work, and the Forest Service has approved certain aspects of that plan. The plaintiffs challenge that approval, claiming that the Forest Service favored mineral extraction over wilderness protection.

         In this decision, the Court holds that the Forest Service did not reveal its analysis in reaching some conclusions, may have relied on information provided in confidence not available to the public for review, and made an error in reaching one conclusion that might have affected the result. The Court will declare the Forest Service’s approval of AIMMCO’s mining plan to be invalid, and will remand the matter back to the Forest Service to correct these errors.

         LITIGATION BACKGROUND

         This suit concerns two lode mining claims located in the Payette National Forest within the boundaries of the Frank Church - River of No Return Wilderness. The plaintiffs challenge the Forest Service’s decision to authorize assessment work on two mining claims - the Golden Hand Claims 1 & 2 - owned by American Independence Mines and Minerals Co (AIMMCO). The project approved by the Forest Service authorizes AIMMCO to collect subsurface geological information in preparation for a new validity hearing on these two mining claims in the Wilderness Area.

         The two claims were discovered near the turn of the century by James M. Hand. Early on, an adit - a horizontal tunnel - was dug on Claim 1, and became known as the Ella Portal. The entrance to this tunnel later collapsed in the 1920s or early 1930s. In 1934, a prominent Idaho mining geologist, Robert N. Bell, studied the Golden Hand claims and prepared a report examining the potential for mining valuable minerals on the claims. In that report, Bell recounted statements Hand made to him about the gold taken out of the tunnel. On the basis of those statements, and his studies, Bell concluded that “serious attention” should be given to renewed mining at the Ella Portal.

         A year later, in 1935, Bell took 40 samples from the Ella Portal tunnel that “amply confirm[ed] my . . . forecast . . . of a definite prospect of a mass production ore deposit.” There is no record, however, of any further mining being done in the Ella Portal, and the tunnel’s entrance remains blocked to this day. No production on any of the Golden Hand claims has been reported since 1941.

         AIMMCO’s ownership[1] of these two claims is affected by the Wilderness Act, passed by Congress in 1964. That Act was designed to set aside federal lands as “wilderness areas” that would be “untrammeled by man, where man himself is a visitor who does not remain.” See 16 U.S.C. § 1131(c). Under the Act, Congress would designate federal lands for inclusion in the National Wilderness Preservation System. In 1980, Congress designated as wilderness the land in central Idaho that would become the Frank Church - River of No Return Wilderness. The Golden Hand Mine was located in this wilderness area.

         One effect of this designation would be that as of January 1, 1984, mining would be prohibited “[s]ubject to valid rights then existing.” See 16 U.S.C. § 1133(d)(3). This meant that as of January 1, 1984, AIMMCO’s right to mine the Golden Hand claims would be restricted to any valid rights it had prior to that date.

         For each of the years from 1981 through 1983, AIMMCO submitted Plans of Operation that were approved by the Forest Service. In February of 1984, AIMMCO advised the Forest Service that its plan of operations would be the same as the year before. This time, the Forest Service refused to approve the plan until a field inspection could be completed. A field inspection by Forest Service personnel was done and a report filed in August of 1984, concluding that the claims were valid. The Forest Service rejected that report, however, and another was done in 1986 concluding that the claims were not valid.

         On the basis of that study, the Forest Service commenced a validity contest on February 25, 1987. In response, AIMMCO submitted its 1987 Assessment Work Request to the Forest Service, seeking approval to do appraisal work on the claims to support its claim of validity. See FS031217-19 In that 1987 Assessment Work Request, AIMMCO proposed on Claim 1 to use hand labor to clear the entry to the Ella Portal. On Claim 2, AIMMCO proposed mapping, sampling, trenching, and drilling to confirm the existence of mineral-bearing xenolith. This work, the Request noted, “will require the construction of access roads and preparation of drill sites.” Id. at FS031218.

         The Request was only three pages in length and quite general in its proposals. It failed to (1) identify the length of the proposed roads, (2) the number of the proposed trenches and drill sites, (3) the duration of the surface-disturbing activities, or (4) any mitigation measures. The Request did note that AIMMCO wanted to use existing buildings on the site “for temporary living quarters of its crew during the time the work described above is being conducted.” See FS031218.

         Acting on the Request, the Forest Service permitted only the non-surface disturbing proposals, and thus allowed only the mapping and sampling proposals on Claim 2. All other proposals were denied as inconsistent with the Wilderness Act. AIMMCO appealed this denial, but it was affirmed by the Forest Service Supervisor and by the Regional Forester.

         AIMMCO responded by filing suit in this Court to stay the validity contest until AIMMCO could do assessment work that would support the validity of the claims. See AIMMCO v. United States, Civil No. 88-1250. The parties reached an agreement to stay that litigation and proceed with the validity determination.

         The validity determination then proceeded to a hearing before Administrative Law Judge Ramon M. Child, and ultimately a decision on January 19, 1989. Judge Child found that AIMMCO had made a discovery of a valuable deposit on Claim 2 “but failed to so prove with respect to Claim 1.” Judge Child found that the only evidence of exposure of mineral on claim 1 “consists of samples taken from the dump outside of the caved-in Ella Portal.” Judge Child made no mention of the 1935 report by geologist Bell that analyzed samples taken from within the Ella Portal tunnel. Focusing only on the dump samples, Judge Child found no evidence to fix their origin, and thus refused to attribute any mineral found in the dump to the Ella Portal. He concluded that “there is a failure of proof of an exposure of mineral in place within the boundaries of Claim number 1.” The parties appealed Judge Child’s decision to the Interior Board of Land Appeals (IBLA), which rendered a decision on February 10, 1992. The IBLA affirmed Judge Child’s decision that Claim 1 was invalid, but reversed his decision that Claim 2 was valid. With regard to Claim 1, the IBLA found that Judge Child’s decision “was clearly correct because the presumed situs of mineralization, the Ella Portal, had been caved in for years. Exposure of a vein or lode carrying mineral values in place is a necessary precondition to the validity of a lode claim.” With regard to Claim 2, the IBLA reviewed the record and found only a few samples from the claim that revealed nothing about the existence of a valuable mineral deposit. AIMMCO responded that it had been unfairly precluded from collecting samples when the Forest Service denied its 1987 request to do assessment work. The IBLA rejected this assertion:

The record is clear that [William] Vanderwall [AIMMCO’s engineering expert] had the same chance to sample claim 2 as he did other Golden Hand claims. Prior to December 31, 1983, nothing prevented [AIMMCO] from exposing sufficient mineralization on claim 2 from which reserve calculations might be made. The record suggests rather that [AIMMCO] had found little of interest on this claim to cause it to sample.

         The IBLA went on to find that the lack of data on tonnage and grade of ore on Claim 2 required it to speculate about the profitability of mining that claim. Refusing to so speculate, the IBLA held that “[a]ssuming that mineralization has been shown on Claim 2, [AIMMCO] has not shown the presence of a valuable mineral deposit.” AIMMCO appealed that decision to this Court in AIMMCO v. United States, Civil No. 00-291-S-BLW. In ruling on that appeal, this Court held that with regard to Claim 1, the IBLA improperly ignored important evidence. Because the law required AIMMCO to show that there was mineral exposure on Claim 1 prior to December 31, 1983, the IBLA should have considered the evidence of Bell’s 40 samples, taken in 1935 from within the Ella Portal tunnel. The Court held that

[b]y ignoring evidence of a prior exposure, the IBLA took a position that is contrary to law. The Court therefore reverses the IBLA’s decision finding claim 1 invalid because there was no present exposure. The Court remands the validity determination as to claim 1 to the Department of Interior for a rehearing to determine whether AIMMCO’s claim 1 is valid under the authority discussed above.

         With regard to Claim 2, the Court was concerned that AIMMCO had been blocked by the Forest Service from doing the assessment work needed to prepare for its validity hearing, and that the lack of that assessment work had been relied on by the IBLA in denying the validity of Claim 2. The Court found that this violated the legal right that AIMMCO had to do assessment work to prepare for the validity hearing: “AIMMCO must be allowed a fair opportunity to prove the validity of its claims.” Accordingly, the Court reversed the IBLA’s decision on Claim 2 and remanded it to the Department of the Interior for a rehearing on whether AIMMCO satisfied the marketability test, after AIMMCO had been given an opportunity to do assessment work by the Forest Service.

         On that last point, the Court directed the Forest Service to recognize AIMMCO’s right to prepare for a validity hearing. At the same time, the Court recognized the Forest Service’s duty to consider environmental regulations. The Court urged AIMMCO and the Forest Service to reach an agreed-upon result that would allow AIMMCO to prepare for its hearing and recognize the applicability of environmental restrictions:

To reach that balance, both sides must give way. AIMMCO must reduce the scope of its surface disturbing proposals, focus only on work that is necessary to support validity, and propose mitigation and protective measures. The Forest Service must recognize AIMMCO’s right to prepare for the validity hearing, and allow work to that end, while requiring adherence to all applicable rules and regulations.

         Following the remand, AIMMCO spent several field seasons gathering samples on the Claims to determine the extent of mineralization. Based on that sampling, AIMMCO issued a new mining plan in August of 2007. See FS6154-58. It proposed 13 drill pads from which 13 to 18 core holes would be drilled. It also called for an unspecified number of trenches, and the construction of a bunkhouse and camp on the site to house workers. Id.

         To discuss this new plan, Forest Service representatives and AIMMCO geologists held a meeting in Twin Falls Idaho on March 18, 2009. There is, however, nothing in the record describing what was discussed there beyond a one-sentence summary by each party. AMMICO states that it “presented confidential and proprietary results from its geochemical sampling, which provided further evidence of the existence and location of the inferred mineralized bodies extending through Claims 1 and 2.” See AIMMCO’s Statement of Undisputed Facts (Dkt. No. 24-2) at ¶ 21. According to the Forest Service’s account of the meeting, AIMMCO “presented a summary of geologic ...


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