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Legal strategy damaged Hecla permit bid

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Cabinet Mountains

The Cabinet Mountains south of Libby are the site of the proposed Rock Creek Mine.

Breaking a permitting process into small steps backfired for Hecla Mining Company last week, when a federal judge ruled the government couldn’t grant permits for the exploration phase of a copper mine on the edge of the Cabinet Mountains Wilderness.

U.S. District Judge Don Molloy wrote that what might happen to grizzly bears, bull trout and other environmental resources when the full project got underway must be considered.

On Wednesday, Molloy vacated decisions by the U.S. Forest Service and U.S. Fish and Wildlife Service allowing Hecla to move ahead on the Rock Creek Mine between Noxon and Libby. At the start of his ruling on Ksanka Kupaqa Xaʾⱡȼin vs. U.S. Fish and Wildlife Service, he observed the project had been in court for two decades.

Hecla has two mining projects on the edge of the Cabinets, both facing legal challenges. The miners propose digging under the boundary of the federal wilderness area to reach big veins of copper and silver. While gathering minerals underneath a wilderness area does not violate the Wilderness Act, miners must show their activity won’t disturb surface resources such as wildlife and water.

In the case of Idaho-based Hecla, both its Rock Creek and nearby Montanore projects appear at risk. The company lost several previous bids in court because it and FWS couldn’t show all the road-building and human activity wouldn't risk killing too many of the estimated 50 grizzly bears in the Cabinet-Yaak Recovery Area. The mines’ potential to dewater Cabinet lakes and streams also put at risk threatened bull trout, as well as the whole ecosystem dependent on that water.

In February, the Montana Supreme Court OK'd Hecla's state water permit for the Rock Creek Mine. However, the same court invalidated a similar permit for the Montanore mine last November.

To permit the Rock Creek mine, the U.S. Forest Service had to first consult with the Fish and Wildlife Service about its impacts on grizzly bears and bull trout, which are protected by the Endangered Species Act. Several previous FWS attempts at this had failed in court. In 2019, the service issued a new biological opinion pertaining only to Phase I of the project.

That move blew a hole in the rest of the government’s case, according to Molloy.

“Unsurprisingly, removing Phase II from consideration drastically reduced both the scope of the activity and the potential environmental impacts,” Molloy wrote. “For comparison, Phase II, or mine development, would involve the removal of 10,000 tons of ore per day with a production life of 26 to 30 years. Mine activity would disturb over 400 acres of land, cause drawdown of stream levels, and require the construction of roads.

“On the other hand, Phase I involves only the excavation of an evaluation adit (mine shaft). Construction of the adit is anticipated to take two years and the estimated disturbance area encompasses approximately 19.6 acres.

“Plaintiffs are correct that it is arbitrary and capricious for Federal Defendants to approve Phase I without considering the environmental effects of Phase II,” Molloy wrote. Doing so amounted to “piecemeal chipping away of habitat for endangered species.” That meant the biological opinion had to be vacated, which created a bigger problem.

In producing the 2019 biological opinion, FWS withdrew all its previous biological analyses and conclusions from the record. But the Forest Service had to have the FWS approval to grant the mine permit. With the 2019 biological opinion vacated and the previous research withdrawn, “there are no fallback documents for the Forest Service to rely on,” Molloy wrote.

Several of the plaintiffs put the blame on the government attorneys under President Donald Trump who attempted the piecemeal strategy. The Center for Biological Diversity has sued the Trump Administration over environmental actions 266 times since 2016, winning nine times out of 10.

“The Trump Administration repeatedly ignored or silenced scientists with the purpose of benefiting special-interest groups,” said Andrea Zaccardi, an attorney with the Center for Biological Diversity who helped bring the lawsuit. “And now the Trump Administration is paying the price for ignoring science.”

In addition to the Ksanka Indian Tribe and the Center for Biological Diversity, lawsuit plaintiffs included the Rock Creek Alliance, Earthworks, Montana Environmental Information Center, Defenders of Wildlife and the Sierra Club. They faced the Forest Service, FWS and RC Resources, a subsidiary of Hecla.

Requests for comment from Hecla and the federal agencies were not returned by press time on Friday.

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