Gold Mine Trumps Trout, California Judge Says

SACRAMENTO (CN) - Concerns about salmon and trout are not enough to stop development of a Northern California gold mine, a federal judge ruled.

Designated in 1984, the 182,802-acre Siskiyou Wilderness spans three national forests in Del Norte, Siskiyou and Humboldt counties in Northern California. It boasts several species of rare coniferous trees, including the Alaska cedar and the Brewer spruce, several rare wildlife species, such as the wolverine and spotted owl, and one of the world's largest concentrations of lilies.

The free-flowing Salmon River winds its way 19.6 miles from its origins in the Klamath Mountains to the 751-square mile watershed in the Klamath National Forest. One of the most pristine river systems in California, the Salmon River offers prime habitat and spawning grounds for the Chinook, Coho and steelhead salmon, rainbow trout and green sturgeon.

In October 2008, Wabuska Mining gave the U.S. Forest Service a plan for the High Bar Place Mine Project, a gold mine in the Salmon River watershed. Wabuska estimated the project would involve extracting 43,500 cubic yards of soil from the site; pumping up to 6,000 gallons of water a day from McNeal Creek; a mill that was originally slated to be on site but was moved to a private site 1 mile from the mine; and a temporary road to haul material between the mine and mill.

After a third-party contractor prepared an environmental assessment for the project, the Forest Service issued a "finding of no significant impact" (FONSI) and approved it in December 2009. Though the agency revised the environmental assessment three times after receiving appeals and published a supplementary information report discussing modifications made by Wabuska, it ultimately upheld the FONSI and concluded that the proposed changes would cause no previously unanalyzed effects.

The Klamath Siskiyou Wildlands Center and Klamath Forest Alliance sued the Forest Service in June 2012, claiming the FONSI and the agency's failure to perform an environmental impact survey instead of an environmental assessment violated the National Environmental Policy Act and the National Forest Management Act.

After reviewing the supplemental information report, the groups filed an amended complaint in April 2013 and moved for summary judgment in August that year.

U.S. District Judge Troy L. Nunley sided with the Forest Service on Oct. 1, finding that the groups did not support their contentions with adequate evidence.

Citing the ruling in Dubois v. U.S. Department of Agriculture et al., which concerned modifications to a ski resort plan, the plaintiffs claimed that the changes proposed in the supplemental report were substantial enough that the Forest Service should have done another environmental assessment.

Nunley disagreed, pointing out that the changes in Dubois were large-scale, such as building a 28,500 square-foot lodge and developing ski lifts. Here, he said, the only completely new aspect is that the project will include a road that is already open to the public and has been used to haul logs, which is not enough to warrant setting aside the project approval.

Arguments that analysis of the mill's new site did not adequately address impacts to the Salmon River and the fish living in it failed because the groups did not back up these claims with enough evidence. Since there has been a mill on the new site since 2008, the modifications actually "reduce the project's footprint on Forest Service land," the ruling states.

Claims that the Forest Service did not use proper baselines in its analysis of stream flows failed for similar reasons.

Though the data indicated that stream flows may be below the minimum threshold for most of the July-to-October operating season, preventing Wabuska from withdrawing any water and completing the project within 3 years, Nunley refused to void the project approval without more information showing why the flow rates analysis is insufficient and why potentially low rates will interfere with the project's ability to comply with its plan of operations.

He also shot down the groups' arguments that the Forest Service improperly concluded that the project would not significantly alter water temperatures in McNeal Creek, which creates a thermal refugia in which fish breed and spawn at its confluence with the Salmon River.

Relying on comments made by a representative from the National Ocean and Atmospheric Administration, the groups claimed that withdrawals from McNeal Creek will alter water temperature in the refugia, which poses a serious threat to the ability of salmon to breed and hatch young.

But because their source made these comments before the Forest Service developed measures to mitigate the impact of withdrawals, they do not demonstrate inadequate analysis, according to the ruling.

The groups also claimed that the Forest Service did not analyze the effects that hauling sediment between the mill and the mine would have on McNeal Creek. They argued that hauling may increase the creek's sediment levels, in violation of the project's Aquatic Conservation Strategy objectives.

In rebuttal, the Forest Service argued that the road has ditches and drains to collect sediment and excess water, and that vegetation between the road and the creek will prevent sediment from reaching it.

Nunley again sided with the Forest Service on the grounds that the plaintiffs did not provide enough information to support their claim.

Though the court acknowledged the groups' concerns that none of the mitigation measures put roads and buildings outside the riparian reserves, areas of a watershed directly next to streams and rivers, Nunley pointed out that one of the project design features does ensure that "none of the current proposed ground-disturbing activities are within riparian reserves" except for road maintenance and water transmission. It also ensures that no hazardous substances will be used and requires Wabuska to complete a "spill prevention plan."

Nunley denied the plaintiffs' motion for summary judgment and ordered the case closed.

Klamath Siskiyou Wildlands spokesman George Sexton applauded the decision to move the mill out of the riparian reserves for McNeal Creek, but said the group "remain[s] concerned about the proposal to withdraw water from critical salmon refugia when drought and temperature are having such a devastating impact on California's last wild salmon runs."

The group is reviewing the ruling to assess appellate options, and is "committed to protecting the watersheds and wildlife of the Klamath National Forest from short-sighting strip mining near our rivers and streams," Sexton said.

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