United States District Court, D. Montana, Missoula Division
SAVE OUR CABINETS, EARTHWORKS, and CLARK FORK COALITION, Plaintiffs,
UNITED STATES DEPARTMENT OF AGRICULTURE, Defendants, LIBBY PLACER MINING COMPANY, Plaintiff,
UNITED STATES FOREST SERVICE, Defendants, and MONTANORE MINERALS CORPORATION, Defendant-Intervenor.
OPINION AND ORDER
W. Molloy, District Judge.
plaintiffs in this consolidated action seek review under the
Administrative Procedure Act ("APA"), 5 U.S.C.
§§ 701-706, of federal agency actions and the
associated planning documents relating to the approval of a
proposed mining operation in the Cabinet Mountains Wilderness
area in the Kootenai National Forest in northwestern Montana.
The plaintiffs in CV 16-53-M-DWM are a coalition of
environmental advocacy groups led by Save Our Cabinets. The
plaintiff in CV 16-56-M-DWM is a private Montana mining
company that owns 1, 000 acres of land adjacent to the
proposed mine facilities. The cases are brought against the
United States Department of Agriculture and the United States
Forest Service ("Forest Service" or "Federal
Defendants"). 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).
plaintiffs (collectively referred to as
"Plaintiffs" unless context or specificity dictates
otherwise) invoke the National Environmental Policy Act
("NEPA"), the Forest Service Organic Act of 1897
("Organic Act"), the Federal Water Pollution
Control Act ("Clean Water Act"), and the National
Forest Management Act ("NFMA"). The challenged
planning documents are the February 12, 2016 Record of
Decision ("ROD"), the March 2015 Final
Environmental Impact Statement ("FEIS"), the
December 2015 Joint Final Environmental Impact Statement
("JFEIS"), and the July 22, 2015 Combined Response
to Objections. Plaintiffs ask the Court to declare that the
agencies violated the relevant statutes and enjoin them from
authorizing any activity relating to the Montanore Mine
Project (the "Project" or "Mine") until
they have complied with all applicable statutes and
regulations. Argument was heard on this matter along with a
related Endangered Species Act case on March 30, 2017.
See Save Our Cabinets v. U.S. Fish & Wildlife
Serv., CV 15-69-M-DWM.
reasons set forth below, Plaintiffs' claims are granted
in part and denied in part. Approval of the Project would
violate the Clean Water Act and the Organic Act as the
approval violates Montana's nondegradation standards. The
approval also fails to pass NFMA and NEPA muster.
The Montanore Mine Project
February 12, 2016 ROD states the Forest Service intends to
approve a Plan of Operations for the Montanore Project, a
copper and silver underground mine and associated facilities,
including a new transmission line, located near Libby,
Montana. ROD at 1, AR10522. The Project will affect private,
state, and National Forest System lands. Id.
Montanore holds fee title by patent to mining claims (denoted
HR 133 and HR 134), which lie partially within the Cabinet
Mountains Wilderness Area ("Wilderness").
Id. While the ore body is located beneath the
Wilderness, all Project mining access and surface facilities
would be located outside the Wilderness boundary. JFEIS at 2,
Project is to proceed in four phases: Evaluation,
Construction, Operations, and Closure. ROD at 8, AR10529. The
first phase, Evaluation, consists of extending the existing
Libby Adit (mining tunnel) and collecting and analyzing
additional geotechnical, hydrological, and other information
to assess the mining prospects and environmental impacts of
the Project. ROD at 9-10, AR10530-31. The Evaluation Phase is
expected to last two years, Construction three years,
Operations 16 to 20 years, and Closure and Post-Closure up to
20 years. JFEIS at 273, AR8133. The Project would consist
initially of 12, 500 tons per day underground mining and
would ultimately expand to 20, 000 tons of ore every day of
operation. JFEIS at 7, AR7867. The ore deposit is estimated
at 135 million tons, of which Montanore anticipates mining
120 million tons. The permit area is 2, 157 acres and
expected disturbance area is 1, 565 acres. JFEIS at S-13,
AR7807. Employment is estimated at 450 people at full
production, JFEIS at 7, AR7867, assuming the Project meets
all legal requirements imposed by law.
order to operate, the Project requires a Plan of Operations
approved by the Forest Service and permits as well as
approvals from the Montana Department of Environmental
Quality ("Montana DEQ"), the Bonneville Power
Administration, the U.S. Army Corps of Engineers
("Corps"), and other state and local agencies. In
conjunction with the Forest Service, the Montana DEQ is a
lead agency on the Project with authority over permits for
Montana water quality regulations and the Clean Water Act.
The Forest Service and the Montana DEQ determined that the
Project may significantly affect the quality of the human
environment. ROD at 2, ARl 0523.
Consequently they, along with the Corps and the Bonneville
Power Administration, prepared an Environment Impact
Statement ("EIS"). On February 27, 2009, a Draft
EIS was issued for public comment. Id. In response
to public comment, the agencies revised the mine alterative
and transmission line alignments and issued a Supplemental
Draft EIS on October 7, 2011. Id. As of April 1,
2015, the Forest Service issued a Final EIS
("FEIS") and Draft ROD. Id. A Joint Final
EIS ("JFEIS") was issued in December 2015.
Forest Service did not select Montanore's proposed action
as the preferred alternative; rather it selected
"Alternative 3 Agency Mitigated Poorman Impoundment and
Transmission Line Alternative D-R" that
"incorporates modifications and mitigating measures
proposed by the agencies to reduce or eliminate adverse
environmental impacts." ROD at 14, AR10535. Under this
alternative, the Libby Plant site would be on the ridge
between Poorman and Ramsey creeks, with mine production and
the ventilation adits in the Upper Libby Creek Drainage,
about one mile from the Wilderness boundary. Id. A
tailings impoundment site would be located north of Poorman
authorizing the full project, the ROD requires additional
Forest Service approval prior to each Project phase. ROD at
8, AR10529. It also requires that Montanore obtain all
necessary Clean Water Act permits prior to approval of the
amended Plan of Operations and before implementing each
phase. Montanore does not yet have the required permits.
Montana DEQ decisions are documented in a separate Record of
Decision ("DEQ ROD"). After reviewing the Project,
the Montana DEQ held in abeyance its decision on whether to
amend the provisions of the current operating permit
regarding the Construction, Operation, Closure, and
Post-Closure Phases of the Project to make it consistent with
the Forest Service's selected mine alternative. DEQ ROD
at 15, AR11014. The DEQ approved amendments to
Montanore's existing DEQ Operating Permit 00150 to
conditionally allow only the Evaluation Phase. Id.;
ROD at 1, AR10522.
environmental plaintiffs assert violations of the Organic Act
(Count I), the Clean Water Act (Count II), NFMA (Count III),
and NEPA (Count IV). Their claims are based primarily on the
Project's effects on water quality and stream flows, as
well as the Forest Service's consideration of mitigation
measures and public access during the NEPA process. Plaintiff
Libby Placer Mining Company ("Libby Placer
Mining"), also challenges the Project under NEPA (Counts
I, II) and the Organic Act (Count III). Its arguments focus
primarily on the decision to use the Poorman Creek tailings
Attorney General for the State of Montana filed an amicus
brief, arguing that Montanore should be allowed to complete
the Evaluation Phase. (Doc. 46.) According to the amicus, the
ROD granted only limited exploratory permit rights contingent
on a determination by Montana DEQ that actions beyond the
Evaluation Phase will comply with Montana's water quality
laws. See ROD at 58, AR10579. The Attorney General
argues that such "phased review" has previously
been upheld and should be upheld here. That position is
addressed in the context of the parties' substantive
Conclusion Federal Defendants insist that the existing
baseline data enabled the Forest Service to evaluate the
reasonably foreseeable significant effects of the Mine and to
make a reasoned choice among alternatives as to all phases of
the Project. The defendants and amicus emphasize, however,
that while the ROD authorizes the full Project, further
analysis and authorization is required after the Evaluation
Phase and before the Project can proceed. They refer to this
process as either "phased" or "adaptive
management." Plaintiffs do not dispute the necessity of
collecting additional data on hydrogeologic conditions during
the Evaluation Phase, (Doc. 63 at 18), but argue the legal
error is that the ROD covers all phases of the Project.
Plaintiffs emphasize that the ROD, as final agency action,
must be assessed and the Forest Service cannot simply defer
its substantive environmental analysis pending the DEQ
the "phased" approach used by the Forest Service is
not inherently flawed, its application in this case is
problematic. The Forest Service's approval of the Project
despite noncompliance with Montana's nondegradation
standards is arbitrary and capricious in violation of the
Clean Water Act, the Organic Act, and NFMA. Additionally, the
agencies violated NEPA by failing to discuss mitigation with
regard to the Poorman site.
Legal Standards Applicable to All Claims
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); San Luis & Delta-Mendota Water
Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014). 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 LandMgmt, 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.
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 in this case because the issues presented
address the legality of the agencies' actions based on
the administrative record and do not require resolution of
Clean Water Act and Organic Act
insist there are three sets of claims under the Clean Water
Act and the Organic Act: (1) noncompliance with state water
quality standards, (2) lack of proper certification under
Clean Water Act Section 401, and (3) noncompliance with the
EPA's zero discharge effluent rule. Although the Forest
Service can legally rely on future approvals by Montana DEQ,
Rock Creek II, 703 F.Supp.2d at 1169, baseflow model
results show the Project will violate Montana's water
quality requirements in the future; the Forest Service's
decision to approve the Project despite that violation is
arbitrary and capricious.
Clean Water Act
Clean Water Act is designed "to restore and maintain the
chemical, physical, and biological integrity of the
Nation's waters." 33 U.S.C. § 1251(a). It
establishes water quality standards to protect the desired
condition of each waterway. 33 U.S.C. § 1313. "A
water quality standard defines the water quality goals of a
water body, or portion thereof, by designating the use or
uses to be made of the water and by setting criteria that
protect the designated uses." 40 C.F.R. § 131.2.
"[A] project that does not comply with a designated use
of the water does not comply with the applicable water
quality standards." PUD No. 1 v. Wash. Dep 't of
Ecology, 511 U.S. 700, 715 (1994). Under the Clean Water
Act Section 313, the Forest Service cannot authorize mining
operations that do not comply with state and federal water
quality regulations, "including a state's
antidegradation policy. 33 U.S.C. § 1323(a)."
Idaho Sporting Congr. v. Thomas, 137 F.3d 1146, 1153
(9th Cir. 1998). The Act also prohibits the Forest Service
from authorizing a project that does not comply with Clean
Water Act Section 401, which requires certification that any
activity receiving a "Federal license or permit"
that may result in any discharge into navigable waters will
comply with state water quality standards. 33 U.S.C. §
1341(a)(1). "Proposed mining activities on National
Forest System lands are subject to compliance with [Section
401]." JFEIS at 622, AR8499.
DEQ administers the Clean Water Act under authority delegated
from the United States Environmental Protection Agency
("EPA"). Here, Montanore possessed a discharge
permit from Montana DEQ (MPDES Permit MT0030279) allowing
discharges of water from the existing Libby Adit. DEQ ROD at
5, AR11004. Permit MT0030279 allows three points of
discharge: "Outfall 001 - percolation pond, Outfall 002
- infiltration system of buried pipes, and Outfall 003 -
pipeline outlet to Libby Creek." Id. Montanore
also previously obtained a hard rock mine operating permit
from Montana, DEQ Operating Permit #00150, with minor
revisions in 2006 regarding approved Libby Adit evaluation
drilling that were referenced and incorporated in an amended
Operating Permit. Id. The actions under review by
the DEQ for the Project also included a renewal of that
Discharge Permit, upon which the DEQ ROD conditioned
amendment of the Operating Permit for the Evaluation Phase.
DEQ ROD at 15, AR11014.
Organic Act authorizes the Forest Service to regulate use and
occupancy, such as mineral operations, on National Forest
System lands and to develop mineral regulations. See
16 U.S.C. §§ 475, 478, 551. Those regulations
require that "all [mining] operations shall be conducted
so as, where feasible, to minimize adverse environmental
impacts on National Forest surface resources." 36 C.F.R.
§ 228.8. They further require that mining operators
comply with applicable state and federal water quality
standards including the Clean Water Act; take all practicable
measures to maintain and protect fisheries and wildlife
habitat; and construct and maintain all roads so as to assure
adequate drainage and to minimize or, where practicable,
eliminate damage to soil, water, and other resource values.
See Rock CreekII, 703 F.Supp.2d at 1164.
Organic Act limits the Forest Service's regulatory
authority, however, by requiring that no such regulation
"prohibit any person from entering upon such national
forests for all proper and lawful purposes, including that of
prospecting, locating, and developing the mineral resources
thereof." 16 U.S.C. § 478. The Forest Service does
not have authority to prohibit or deny mine proposals that
can be approved in a manner that will comply with applicable
environmental laws that are reasonably necessary to mining of
a private mineral estate or the use of unpatented claims on
National Forest System lands subject to the General Mining
Act. See 30 U.S.C. §§ 22-42 (giving United
States citizens the right to explore, locate, patent, and
develop claims on National Forest System lands). Holders of
validly existing mining claims within the Wilderness are
accorded the rights provided by the United States mining laws
and must comply with the Forest Service mineral
regulations. 36 C.F.R. § 228.15. Operations in the
shall be conducted so as to protect National Forest surface
resources in accordance with the general purposes of
maintaining the [Wilderness] unimpaired for future use and
enjoyment as wilderness and to preserve its wilderness
character, consistent with the use of the land for mineral
location, exploration, development, drilling, and production
and for transmission lines, water lines, telephone lines, and
processing operations, including, where essential, the use of
mechanized transport, aircraft or motorized equipment.
36 C.F.R. § 228.15(b).
argue that the selected alternative will violate
Montana's water quality requirements and that the Forest
Service failed to comply with the Clean Water Act Section 401
and the EPA's zero-discharge effluent rule. Those
arguments are addressed in turn.
Montana Water Quality Requirements
law requires that "[e]xisting uses of state water and
the level of water quality necessary to protect those uses
must be maintained and protected." Mont. Code Ann.
§ 75-5-303 (the "nondegradation" standard).
Montana law further requires that waters be "maintained
suitable for .. . growth and propagation of salmonid fishes
and associated aquatic life" and that "[n]o
increases are allowed above naturally occurring
concentrations of sediment or suspended sediment... which
will or are likely to .. . render the waters harmful,
detrimental, or injurious to ... fish." Admin. R. Mont.
17.30.623(1), (2)(f). In addition to "maintaining"
waters suitable for aquatic life, Montana law states that
only "a 1 ° maximum increase above naturally
occurring water temperature is allowed within the range
of32°Fto66°F." Admin. R. Mont. 17.30.623(2)(e).
Plaintiffs challenge the Project's compliance with all
three standards: (1) nondegradation, (2) sediment, and (3)
to the defendants, because the State of Montana has been
delegated authority to issue discharge permits and has
adopted water quality standards approved by the EPA, the
State is the primary decision-maker regarding compliance with
the Clean Water Act, including compliance with state water
quality standards. For that reason, they argue that the
Forest Service properly determined that reliance on Montana
DEQ's decisions constitutes compliance with Clean Water
Act requirements. ROD at 58, AR10579; see Rock Creek
Alliance v. United States Forest Service (Rock Creek
II), 703 F.Supp.2d 1152, 1169 (D. Mont. 2010) ("The
permit is the means by which the Montana DEQ enforces state
water quality standards, and the Forest Service is allowed to
rely on the Montana DEQ to issue and enforce a valid
permit."). Although the Montana DEQ determined that
"the Libby Adit during the Evaluation Phase will comply
with all water quality standards, " it chose to hold in
abeyance its compliance determination for the remaining
phases of the Project. DEQ ROD at 18, AR11017. Federal
Defendants insist the status of the permit is irrelevant
because the Forest Service's proposals are expressly
contingent upon Montana DEQ approval of operations.
See ROD at 8, AR10529; see Rock CreekII,
703 F.Supp.2d at 1169 n.13 (noting that the status of a
similar State DEQ permit was "irrelevant to the
consideration of compliance with the Organic Act). The
Montana Attorney General echoes that such reliance on the
Montana DEQ is consistent with the law. (See Doc.
argue that by deferring to the State's future permit
process, despite the current record which predicts that State
water quality standards will be violated, the Forest Service
ignores Section 313's creation of a separate and
independent duty on federal agencies to comply with all
federal and state water quality standards, and that judicial
review of current compliance is appropriate under the APA,
Idaho Sporting Cong'r, 137F.3datll53, and the
Clean Water Act's citizen suit provision, Rock
CreekII, 703 F.Supp.2d at 1163-65.
first argue that the Alternative 3 selected by the ROD will
result in violation of Montana's nondegradation
requirements. Montana law requires that "[e]xisting uses
of state waters and the level of water quality necessary to
protect those uses must be maintained and protected."
§ 75-5-303(1). Degradation of "high quality"
waters is prohibited unless the DEQ issues an authorization
to degrade. §§ 75-5-103(13), 75-5-303. No
degradation of "outstanding resource waters" is
allowed, such as surface waters within a wilderness. Admin.
R. Mont. 17.30.705(2)(c); DEQ ROD at 18, AR11017
("Surface waters located within the boundaries of the