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Save Our Cabinets v. United States Fish and Wildlife Service

United States District Court, D. Montana, Missoula Division

May 30, 2017



          Donald W. Molloy, District Judge

         Plaintiffs Save Our Cabinets, Earthworks, and Defenders of the Wildlife (collectively "Plaintiffs") seek declaratory and injunctive relief under the Endangered Species Act ("ESA"), challenging determinations made by the United States Fish and Wildlife Service ("Fish and Wildlife Service") and the United States Forest Service ("Forest Service") (collectively "Federal Defendants") related to the Montanore Mine Project (the "Project" or "Mine") in northwestern Montana. Plaintiffs argue that Federal Defendants violated the ESA when they concluded that the Project will not jeopardize bull trout or grizzly bears or destroy or adversely modify bull trout critical habitat. Montanore Minerals Corp. ("Montanore"), the owner and operator of the proposed mine, intervened as a matter of right. See Fed. R. Civ. P. 24(a)(2). This case was considered at the same time as two other cases challenging agency action in connection with the Montanore Mine. See Save Our Cabinets v. U.S. Dep 't of Agric, No. CV 16-53-M-DWM, and Libby Placer Mining Co. v. U.S. Forest Serv., No. CV 16-56-M-DWM. Although not consolidated, argument was heard on this case in conjunction with the consolidated cases on March 30, 2017.

         For the reasons set forth below, the Forest Service motion for summary judgment on Count II is granted. On all other claims Plaintiffs prevail. The Project will be remanded to the agencies for consideration in light of this Order and Opinion.


         I. The Montanore Mine Project

         Montanore proposes to construct an underground copper and silver mine in the Cabinet Mountains Wilderness area ("the Wilderness") in the Kootenai National Forest, approximately 18 miles south of Libby, Montana. ConsDoc:867, 880.[1] Although the ore body is beneath the Wilderness, all access and surface facilities would be located outside the Wilderness. ConsDoc:880. In addition to surface facilities, including access and ventilation sites (adits), the Project would require constructing approximately 13.7 miles of electric transmission line, waste rock storage facilities, a wastewater treatment plant, wastewater holding and seepage collection ponds, pipelines for transporting water and mine tailings, and tailing storage facilities; paving and widening of approximately 13 miles of roads; and clearing of trees and vegetation. ConsDoc:867-80. The operating permit area is 2, 153 acres and the disturbance area 1, 565 acres. ConsDoc:867.

         The Mine is to be constructed using the "room-and-pillar" method, whereby pillars of ore are left intact to support the rock ceiling. FS6-10.1:10647. As proposed, the Project would initially consist of 12, 500 tons/day underground mining operation that would expand to 20, 000 tons/day. ConsDoc:565. The Mine is set to operate 24 hours per day, seven days a week, for 350 days out of the year. Id. It is expected to employ 450 people at full production and approximately 430 new residents could arrive in Lincoln County if the mine comports with state and federal laws. Id.

         The Project involves the development of five major mining facilities: (1) a Poorman Tailing Impoundment Site north of Poorman Creek for tailings disposal, (2) the Libby Plant Site located between Libby and Ramsey creeks, (3) the existing Libby adit, (4) two additional adits in upper Libby Creek, and (5) a new 13.7 mile electric transmission line. See ConsDoc:564 (Figure 2), 563. Of the 13.7 miles of transmission line, ConsDoc:565, 9.1 miles are on National Forest System lands, FS6-10.1:10529. Construction of the line is estimated to take a maximum of 200 feet of clearing, and a helicopter would be used for timber removal, to place 16 structures in the upper Miller Creek and Howard Creek drainages adjacent to grizzly bear core habitat, and to string line and ground wire. ConsDoc:565.

         The Project consists of four phases: Evaluation, Construction, Operation, and Closure. Id. In general, the Evaluation Phase is expected to last two years, Construction three to four years, Operations 16 to 20 years, and Closure/Reclamation up to 20 years. ConsDoc:566. The Evaluation Phase involves advancing the existing Libby adit and re-initiating evaluation drilling that started in 1989. Id. The Construction Phase consists of developing the infrastructure necessary to initiate full mining activities, including the construction for the mine adits and facilities, the transportation system, and the transmission line. ConsDoc:570. All activities for the construction of the transmission line on federal lands are scheduled between June 16 and October 14, outside the spring and denning periods for grizzly bears. Id. The Operations Phase would consist of the actual mining and milling operations. ConsDoc:573. Following that, the Closure and Reclamation Phase is designed to establish a post-mining environment compatible with the Kootenai Forest Plan land use direction. ConsDoc:575. Closure consists of two phases, an initial phase removing most of the facilities and transmission line, and a second phase consisting of reclamation, water treatment, and monitoring. ConsDoc:565.

         II. Federal Agency Planning and Review

         Discovery of mineral deposits for the Montanore Project dates back to the early 1980s. ConsDoc:865. The permitting process began in 1989 under Noranda Minerals Corporation ("Noranda"). Id. Noranda obtained an exploration license from the Montana Department of State Lands and other associated permits for construction of an exploration adit from private land in upper Libby Creek. ConsDoc:865-66. After construction of about 14, 000 feet of the Libby adit, Noranda ceased construction in 1991 in response to elevated nitrate concentration in surface water as well as low metal prices. ConsDoc:866. By the time Noranda conveyed its interests to Newhi, Montanore's predecessor, in 2002, many of Noranda's permits terminated or expired and Noranda notified the Forest Service that it was relinquishing the authorization to operate and construct the Project. Id. Sometime around 2006, Montanore re-opened the Libby Adit and re-initiated the evaluation drilling program that Noranda began in 1989. Id. The Forest Service initiated an environmental analysis that included public scoping for the proposed road use and evaluation drilling at the Libby Adit site. Id. But, in 2008, the agency decided the best approach for disclosing the environmental effects of the Libby Adit was to consider this activity as the initial phase for the Montanore Project. Id.

         The lead agencies for the Project are the Forest Service and Montana Department of Environmental Quality ("DEQ"). ConsDoc:563. Forest Service authorization is required to develop the Mine because its surface facilities and access roads will be located on National Forest System land. See FS6-10.1:10522. Because the Project "may affect" bull trout and grizzly bear populations protected under the ESA, the Forest Service initiated Section 7 consultation with the Fish and Wildlife Service in 2011. See ConsDoc:864. On March 31, 2014, the Fish and Wildlife Service issued its biological opinions for the Project, finding that it is not likely to jeopardize grizzly bears or bull trout and it is not likely to destroy or adversely modify bull trout critical habitat.[2] See ConsDoc:857-1094 ("Aquatic Opinion"); ConsDoc:554-856 ("Terrestrial Opinion"). On February 12, 2016, the Forest Service issued a Record of Decision approving the Project. FS6-10.1.

         Plaintiffs bring this action under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, and the ESA's citizen suit provision, 16 U.S.C. § 1540(g). See Ariz. Cattle Growers' Ass'n v. Salazar, 606 F.3d 1160, 1163 (9th Cir. 2010). They challenge the March 2014 Biological Opinions and the 2016 Record of Decision. They argue that the Fish and Wildlife Service violated the ESA when it concluded that the Project will not jeopardize bull trout (Count I), or grizzly bears (Count IV), or destroy or adversely modify bull trout critical habitat (Count II). They allege the agency also violated the ESA in its use of a surrogate in the bull trout incidental take statement (Count III). Finally, they argue the Forest Service violated the ESA when it relied on the flawed biological opinions (Counts V, VI). Except for Count II, Plaintiffs have the stronger legal position on all the remaining counts.

         Summary Conclusion

         The Project is anticipated to have serious negative impacts on local populations of bull trout and an already declining grizzly bear population. Although the 2014 Biological Opinions do not attempt to mask these serious localized effects, the Fish and Wildlife Service acted arbitrarily and capriciously in reaching its no jeopardy conclusions. The Forest Service's approval of the 2016 Record of Decision based on those flawed Biological Opinions violated the ESA.


         I. Legal Standards

         A. APA

         Under the APA, a "reviewing court shall.. . hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). The scope of review is narrow, and a court must "not [] substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass 'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). A decision is arbitrary or capricious:

only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Gardner v. U.S. Bureau of Land Mgmt, 638 F.3d 1217, 1224 (9th Cir. 2011) (quoting Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc)). An agency's actions are valid if it "considered the relevant factors and articulated a rational connection between the facts found and the choices made." Id. (internal quotation marks omitted); Motor Vehicles Mfrs., 463 U.S. at 50. Although a court's inquiry must be thorough, "the standard of review is highly deferential; the agency's decision is 'entitled to a presumption of regularity, ' and [courts] may not substitute [their] judgment for that of the agency." San Luis & Delta-Mendota Water Auth. v. Jewell, 141 F.3d 581, 601 (9th Cir. 2014) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16 (1971)). Even if evidence is "susceptible of more than one rational interpretation, " courts must uphold an agency's findings so long as it relied on relevant evidence such that a reasonable mind might accept as adequate to support its conclusion. Id.

         B. Summary Judgment

         Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Summary judgment is particularly applicable to cases involving judicial review of final agency action. Occidental Eng'r Co. v. INS, 753 F.2d 766, 770 (9th Cir. 1985). Summary judgment is appropriate here because the issues presented address the legality of the agencies' actions based on the administrative record and do not require resolution of factual disputes.

         II. ESA

         The ESA "obligates federal agencies 'to afford first priority to the declared national policy of saving endangered species.'" Pac. Coast Fed'n of Fishermen's Ass'n v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1084-85 (9th Cir. 2005) (quoting Tenn. Valley Auth. v. Hill, 437 U.S. 153, 185 (1978)). Section 7 of the ESA directs each agency to ensure, in consultation with the Fish and Wildlife Service, that "any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species" or cause the "destruction or adverse modification" of habitat designated as "critical" for such species. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.01(b). The formal consultation process culminates in the issuance of a biological opinion, in which the Fish and Wildlife Service must determine-based on "the best scientific and commercial data available, " 16 U.S.C. § 1536(a)(2)- whether the proposed action will jeopardize the survival and recovery of a protected species. 16 U.S.C. § 1536; 50 C.F.R. § 402.02. An agency action "jeopardizes" a protected species if it "reasonably would be expected, directly or indirectly, " to reduce appreciably the species' likelihood of survival and recovery "by reducing the reproduction, numbers, or distribution of the species." 50 C.F.R. § 402.02. The Fish and Wildlife Service also must determine whether the proposed action will destroy or adversely modify a protected species' designated critical habitat. 50 C.F.R. § 402.14(g)(4); 16 U.S.C. §§ 1532(5)(4), 1533(a)(3)(A). The Forest Service has an independent obligation under the ESA to ensure that its action is not likely to jeopardize the survival or recovery of a listed species or destroy or adversely modify designated critical habitat. 16 U.S.C. § 1536(a)(2). "Arbitrarily and capriciously relying on a faulty Biological Opinion violates this duty." Wild Fish Conservancy v. Salazar, 628 F.3d 513, 532 (9th Cir. 2010) (quotation omitted).

         If, as here, the Fish and Wildlife Service issues a "no jeopardy" and "no adverse modification" opinion, but determines that the action may incidentally "take" individual members of a listed species, the Fish and Wildlife Service issues an incidental take statement. 16 U.S.C. § 1532(19) ("take"); 16 U.S.C. § 1536(b)(4). The statement specifies the impact of incidental take, reasonable and prudent measures designed to minimize the impact of take, and terms and conditions to implement those measures. 16 U.S.C. § 1536(b)(4)(i)-(iv). Take that complies with the statement's terms and conditions is not prohibited. 16 U.S.C. § 1536(o)(2). The Forest Service must reinitiate consultation if the specified level of take is exceeded or if new information or a modification to the action indicates previously unexamined effects. See 50 C.F.R. § 402.16.

         A. Bull Trout

         "Despite bull trout occurring widely across a major portion of its historical potential range, many areas support only remnant [bull trout] populations." ConsDoc:890. In light of major range contraction, population declines, and ongoing threats to the species, on November 1, 1999, the Fish and Wildlife Service listed bull trout across the coterminous United States as a threatened species under the ESA. ConsDoc:885. A revised critical habitat designation was issued in 2010. See 75 Fed. Reg. 63, 898 (Oct. 18, 2010).

         1. The Conclusions of the 2014 Biological Opinion

         The Project is expected to adversely affect bull trout local populations and critical habitat in three primary ways: (1) disruption of groundwater resources that are likely to reduce baseflow[3] in several local area streams, ConsDoc:944-45; (2) short-term increases (negative) followed by long-term reductions (positive) in stream sedimentation, ConsDoc:952-53; and (3) augmentation of warm water into streams, ConsDoc:951. The predicted reduction in baseflow is expected to reduce the size of stream flows during low flow periods, thereby disrupting access to spawning sites and reducing the availability of adult and juvenile habitats. ConsDoc:958-59, 960-61, 975. These effects are likely to be most significant in Libby Creek, Rock Creek, and East Fork Bull River. ConsDoc:961. Short-term sediment increases are also likely to cause degradation of juvenile rearing habitats, and augmentation of warm water into streams is further likely to degrade habitat conditions and decrease bull trout survival in localized stream reaches. ConsDoc:961-62. Other actions benefit non-native fish populations that compete with bull trout. Id. The Project is expected to reduce the numbers, distribution, and reproduction of bull trout in local area streams. ConsDoc:961-62, 975-80.

         The Fish and Wildlife Service determined, however, that based on the significance or magnitude of the localized impacts, the Project is not likely to "appreciably reduce the survival and recovery of bull trout at the scale of either the Lower Clark Fork or Kootenai River core areas." ConsDoc:981. The agency explained, for example, that the Project is not expected to eliminate fish production in Libby Creek, and several Libby Creek tributaries are not affected and will continue to provide similar contributions to the Kootenai River core area population. Id. Further, the Libby Creek watershed is one of six watersheds that provide for the fluvial (river-migrating) life history of bull trout, and the Project will not affect the five other primary spawning and rearing streams for that core area population. ConsDoc:980-81.

         Similarly, the East Fork Bull River and Rock Creek local populations are expected to continue contributing to the Lower Clark Fork River core area population, and 85 to 90 percent of the habitat within these local populations is unaffected by the Project. ConsDoc:978. Further, these two local populations represent two of the seven primary bull trout populations that support the Lower Clark Fork River core area, such that the majority of spawning and rearing habitat of the core area remains intact and usable. Id. While migratory fish in East Fork Bull River and Rock Creek are adversely impacted, ConsDoc:978-99, the significance of this impact is diminished by Avista's ongoing fish passage program, ConsDoc:977, 979. Considering the overall status of the core area populations, the Fish and Wildlife Service concluded that the impacts to the local bull trout populations are not likely to appreciably reduce the likelihood of survival and recovery on a larger scale. ConsDoc:978-81.

         For critical habitat, the agency similarly found that the Project effects are likely to reduce, but not eliminate, the function of some of the critical habitat's essential features located in the affected streams and that the effects to the overall critical habitat available to the core area population are small. ConsDoc:984-86. The Project is expected to adversely affect 40.7 miles, or 15.1 percent, of the critical habitat designated in the Kootenai River core area. ConsDoc:985. It is expected to adversely affect 16.3 miles, or 5.8 percent of the critical habitat available in the Lower Clark Fork River core area. ConsDoc:986. None of the habitat's essential features are expected to be eliminated and they will continue to contribute to the conservation function of the critical habitat. ConsDoc:985-86, 966-67. The agency also found that conservation actions, such as habitat conservation plans and the Avista fish passage program, are improving the conservation function of critical habitat and diminishing the significance of local Project impacts to the critical habitat in the core areas. ConsDoc:984-86. Accordingly, the agency concluded that the Project's adverse effects on critical habitat are not likely to appreciably diminish the ability of bull trout critical habitat to function for the conservation of the core area populations, and, in turn, are not likely to destroy or adversely modify bull trout critical habitat. Id.

         Plaintiffs challenge the agency's conclusions on the grounds that the agency undervalued localized degradation in consideration of range-wide conclusions and relied on "uncertain" modeling.

         2. No-Jeopardy ...

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