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Idaho Conservation League v. U.S. Forest Service

United States District Court, D. Idaho

December 18, 2019

IDAHO CONSERVATION LEAGUE, and GREATER YELLOWSTONE COALITION, Plaintiffs,
v.
U.S. FOREST SERVICE, Defendant. And OTIS CAPITAL USA CORP., a Nevada Corporation, Defendant Intervenor

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill U.S. District Court Judge

         INTRODUCTION

         The Court has before it motions for summary judgment filed by plaintiffs Idaho Conservation League and Greater Yellowstone Coalition (collectively referred to as ICL), defendant Forest Service and intervenor Otis Capital USA Corp. The Court held oral argument and took the motions under advisement. For the reasons expressed below, the Court will grant each motion in part, and remand the case to the Forest Service to consider the impact of the Project on (1) groundwater in the Dog Bone Ridge area and (2) how that groundwater from Dog Bone Ridge drainage will impact Corral Creek and the Yellowstone cutthroat trout in Corral Creek.

         FACTS

         For several years the Otis Capital USA Corp has been exploring for gold on its mining claims held on public lands near the Idaho-Montana border. Otis filed a proposal to expand its current operations, known as the Kilgore Project, and it was approved by the Forest Service following an Environmental Assessment (EA) and a Finding of No. Significant Impact (FONSI).

         Eventually, if the Project identifies sufficient gold deposits, Otis would propose a mining plan to build an open-pit cyanide heap leach mine, but that is not yet determined and is not before the Court. The only issue before the Court is whether the Forest Service's approval of Otis's expansion of the existing exploratory project was proper. The Idaho Conservation League (ICL) has filed this lawsuit challenging that approval as violating the National Environmental Policy Act (NEPA), the National Forest Management Act (NFMA), and the Organic Act.

         Forest Service Approval

         The proposal by Otis, approved by the Forest Service, would involve a five-year exploration in the Caribou-Targhee National Forest. The goal of the Project is to assess the grade and extent of minerals underlying four target areas: (1) Mine Ridge; (2) Gold Ridge; (3) Prospect Ridge; and (4) Dog Bone Ridge.

         In September 2017, the Dubois Ranger District received Otis's proposed plan of operations to expand its operations on its mining claims in the National Forest. Underground gold mining occurred in the Project area as early as the 1930s and continued sporadically into the 1990s. Otis began its strategic exploration drilling program in 2008.

         After receiving comments during a scoping period, the Forest Service analyzed the potential environmental effects of the proposed action in an environmental assessment (EA). The EA considered the Project's potential effect on a variety of resources, including surface water, groundwater, plants, and wildlife, and did so in part by incorporating separate more detailed specialist reports.

         Based on all of this information, the Forest Service issued a draft Decision Notice and FONSI. This initiated an objection period during which ICL submitted objections. The Forest Service responded to those objections and then approved the Project in a final Decision Notice/FONSI dated August 20, 2018.

         The Decision Notice/FONSI incorporated various management requirements and best management practices (BMPs) to “eliminate or minimize potential resource impacts, ” and explained that an environmental impact statement (EIS) was not warranted because the Project would not significantly affect the environment. See AR009139-41.

         The Approved Project

         The Project approved by the Forest Service involves the construction of 10.5 miles of new roads and 140 drill stations. Each year Otis would be authorized to operate 3 motorized drill rigs from July 16 through November, 24 hours a day, 7 days a week, to drill up to 420 exploratory holes by Project completion. On average, drill holes would extend 1, 300 feet underground; the drill pads would be 50 feet long and generally as wide as the road where they are located. To obtain drill water, and other water needed for the Project, Otis is authorized to pump water from an existing on-site well and to pump water directly from West Camas and Corral Creeks. Every day of operations, Otis would shuttle workers and supplies - including hazardous fuels and drilling fluids - to and from the Project site. About 23 total acres of surface would be disturbed over five years by the Project, and Otis would be responsible for reclaiming all roads to match pre-existing topography at the end of that time.

         The Project site is located in terrain consisting of many steep slopes. There are numerous headwater streams in the Project site area, all of which flow into West Camas Creek or Corral Creek. These creeks both flow into Camas and Beaver Creeks.

         The Project site has suitable habitat for numerous species, including grizzly bear, whitebark pine, Yellowstone cutthroat trout, and Columbia spotted frog, each of which is designated as a Forest Service “sensitive species.”

         Grizzly Bear

         The Project is located in an area known as the “High Divide, ” an east-west migration pathway for grizzly bears that connects two areas important for their recovery: The Greater Yellowstone Ecosystem (GYE) and the Bitterroot Ecosystem (BE). The Project is about 18 miles from the nearest recovery zone “but is within the Centennial Bear Analysis Unit (BAU), an area identified as biologically suitable for grizzly bears.” See AR010698.

         The Forest Service assessed the potential environmental effects of the Project on the grizzly bear in the EA, a Biological Assessment (BA) and a wildlife report. In those documents, the Forest Service examined the Project's impacts on the quantity and quality of grizzly bear habitat, and also attempted to estimate the number of grizzly bears that would be in the Project's impact zone. With regard to the quantity of habitat, the Forest Service's analysis showed the Project's roads would reduce habitat by about 250 acres, constituting about 4% of the habitat in the Centennial BAU. See AR005134. With regard to the quality of habitat, the Forest Service found that the main denning areas were outside the Project area, and also found that the Project would not affect foraging habitat. See AR005134.

         To determine the numbers affected, the Forest Service studied radio-collar information from the U.S. Geological Survey-Interagency Grizzly Bear Study Team (IGBST). The IGBST study concluded that “the data for 2000-2016 show moderate and consistent occurrence of grizzly bear use in the area of influence around the proposed site for the Otis gold mining project.” See AR005965. In terms of numbers, six radio-collared male grizzly bears were identified on the east side of the Dubois District in six years between 2000 and 2017. Of the 228 radio-collar locations of grizzly bears on the east side of the Dubois Ranger District, only one was observed adjacent to the Project area. See AR010698. The remaining 227 radio-collar locations occurred east of the East Camas Creek drainage. Id.

         The IGBST study also stated that there were “[n]o observations [outside of radio collar data] of solitary grizzly bears or females with young . . . in the area of influence during 2000-2016.” Id. There have been observations in June and July of 2018 - one was a wounded bear in the West Camas Creek drainage, see AR010385, and the other was trapped in the Dry Creek drainage near Kilgore after killing a calf. See Exhibit A (Dkt. No. 30-3).

         The Forest Service recognized that “[n]ot all grizzly bears are radio-collared, so not all the locations of all grizzly bears are known.” This observation combined with the data showing some minimal grizzly presence over the last 18 years led the Forest Service to conclude that the Project “may affect but is not likely to adversely affect” the grizzly bear. See AR005136. In light of this finding, the Forest Service consulted with the U.S. Fish and Wildlife Service (FWS).

         The FWS, in a report issued a few months after the FONSI, concurred with the Forest Service's determination, finding that it is “highly unlikely” that Project activities would “disturb and temporarily displace[] individual grizzly bears, ” and that any “effects to grizzly bears from changes to habitat caused by the proposed action are anticipated to be unmeasurable.” See AR010699. The FWS stated that “[t]he action area does not contain important habitats for grizzly bears, such as denning areas or the four major food resources . . . .” See AR010698. The FWS also examined the Project's impact on the High Divide corridor:

The most likely passages for connectivity adjacent to the action area are to the north and northwest and do not appear to be impeded by the action area. For these reasons, the action area is unlikely to be used by grizzly bears as a habitat corridor between the . . . GYE [Greater Yellowstone Ecosystem] and the BE [Bitterroot Ecosystem].”

See AR101698-99.

         Whitebark Pine

         The Forest Service analyzed the potential effects of the Project on whitebark pine in the EA and a separate biological evaluation (BE). Whitebark pine is a candidate species for ESA-listing and is a sensitive species. The seeds from the tree are an important food source for grizzly bear. At the Project site, surveys show a “high number of well-distributed individual whitebark pine seedlings and saplings, ” and populations “appeared to be healthy.” See AR009096-97.

         Surveys show high densities of whitebark pine on the west side of the Project with lower densities on the east side. The Forest Service acknowledged that “[r]emoval of some seedling and sapling individuals for road placement is likely unavoidable due to the high number of well distributed individuals found during project surveys.” See AR000462. At most, the Forest Service estimated 500 seedlings or saplings would be affected of the estimated 88, 000 in the Project area. Id. And the Forest Service anticipated little or no effect on mature whitebark pine because of the Best Management Practices (BMPs) that provides for avoidance of healthy mature whitebark pine when flagging routes for temporary road construction. The EA and DN/FONSI do not require any replanting of whitebark pine at the Project site.

         Water Quality - Surface Water

         Most streams within and downstream of the Project are classified by the Idaho Department of Environmental Quality as “impaired” because they fail to meet applicable water quality standards for temperature, sediment, and other criteria designed to protect cold water aquatic life. See AR009086-87 at Table 2. The ...


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