PORTLAND, Ore. (CN) – Grizzly bears in Montana’s Cabinet Mountains Wilderness will fare better if the region gets a new copper and silver mine, the U.S. Fish and Wildlife Service claimed in a hearing before the 9th Circuit.
The Rock Creek Alliance and other environmental and conservation groups are appealing the agency’s determination that mitigation will ensure that the mine does not harm grizzly bears or endangered bull trout in the Cabinet Mountains. A federal judge in Montana had rejected claims that the biological opinion was not arbitrary or capricious.
At a hearing Thursday before a three-judge appellate panel, Department of Justice attorney Robert Oakley said mitigation efforts would reduce human and bear interactions, a factor he says environmentalists label as the leading cause of bear mortality in wilderness area.
As part of its permit to operate the mine, Revett Minerals agreed to provide bear-proof garbage cans to local residents and import six bears to augment the dwindling population. Revett would also pay for two grizzly-management specialists and a law-enforcement officer with the Montana Department of Fish and Wildlife for next 35 years to monitor the local population and educate the public about not interacting with grizzly bears.
In addition to outreach programs, Revett must preface construction by buying more than 1,500 acres of suitable land as a habitat for any bears displaced by the mine. Before it can operate the mine, it also has to buy roughly 1,000 additional acres of mitigation land.
While things like bear-proof garbage cans are not “sexy,” they substantially reduce bear-human contact, which “always ends badly for the bears,” Oakley said.
These efforts and the replacement habitat are part of the service’s effort to improve the bears’ situation and “not just zero out” the impact of the mine, Oakley said.
But an attorney for the Rock Creek Alliance said the government used “capricious and arbitrary” methods to calculate the amount of land needed to mitigate the impact of construction and operation of the mine on the grizzly bears.
“The service assumes that every acre of the mitigation land could fully satisfy the 2,450-acre mitigation requirement, even though the majority of those lands … are burdened with existing developments,” Earthjustice attorney Timothy Preso said. “At bottom, when the service looked at an acre with a road on it within the mine’s impact zone, it found that equaled less than an acre of replacement habitat. But when [it] looked at acre with a road on it on the mitigation parcels, [it] found that that acre equaled an acre of replacement habitat. That is fundamentally arbitrary.”
A low-use road on an acre of land reduces grizzly bear use of that acre by 70 percent, Preso said, pointing to agency findings. But many of the mitigation parcels have roads that see higher use.
“So whatever features those lands may have that are so important to grizzly bears, if the bears use of them, is reduced by 70 percent or more, Preso said. “How does that offset the mines impact?”
Judge Milan Smith interrupted to ask Preso about the deference the court owed to the U.S. Fish and Wildlife Service’s work.
“People can do whatever they want with statistics, and environmental cases show that perhaps more than any other legal point – except maybe antitrust,” Smith said.
“Here we have a government agency that has lots of experts,” he continued. “You all have lots of experts. Is it your position … that we owe no deference at all to the Fish and Wildlife Service?”
Preso disputed that this is a case of “our experts versus their efforts,” saying it is the court’s job to police capricious and arbitrary decisionmaking. The quantity and quality of land being proposed to mitigate the impact of the mine is simply not based on a sound analysis of the habitat needs of the grizzly bear, he said.
“Their alleged replacement [habitat] won’t be a replacement at all because the bears are going to end up with a net loss,” Preso said.
Smith pressed the point about equally compelling scientific testimony, asking whether the alliance has ever agreed with the service about the outcome of litigation.
“My point is simply that I find it difficult to believe that you would ever agree with them on anything,” he said, adding that it puts appellate court judges, who were not scientists, in a difficult position since they must evaluate the information from both sides and what role deference should play.
Preso replied by noting his client’s past successes. He also said it is inadequate “to say these parties disagree, and the court defers to the agency, without getting into the mechanics of this thing.” Judges must “examin[e] the machinery and figur[e] out” whether the government did the job,” Preso said.
Smith said he and his fellow judges had done that. “But the bottom line is I don’t see anything you agree on,” Smith said. “Anything.”
Preso replied that the alliance would agree if the agency evenhandedly applied its method for calculating replacement habitat and ensured that acquisition of the habitat before affecting wildlife.
Smith replied: “That would be an interesting day.”
The timing of the land’s acquisition has been a contentious point. “Nearly a quarter of the total of the habitat will not be acquired until the mine is fully constructed and the impact to the bears in terms of displacement and fragmentation of their habitat has already occurred,” Preso said.
But 9th Circuit precedent bars the service from relying on future mitigations unless there is a guarantee they will occur, he continued.
“Here, there can be no guarantee because the acquisitions depend on the actions of third-party sellers,” Preso said.
The government’s attorney disputed Preso’s interpretation of this precedent. “This is different case than the other cases cited by Mr. Preso where the action was ongoing and mitigation was in the future,” Oakley said. “Here, the situation is reversed. The action occurs after the mitigation is a done deal. If the mitigation doesn’t occur, then the action doesn’t happen.”
Judge Harry Pregerson said the court could defer to the service because it is “an agency that one cannot say is not sympathetic to conserving certain wildlife.”
“You know, they’re not like Bureau of Land Management,” Pregerson said.
Preso countered with examples of 9th Circuit precedent that found the service had not met its obligations under the Endangered Species Act, including three recent rulings with regard to the Rock Creek mine.
Construction of the mine will also increase sediment in the 2.8 miles of critical habitat for the endangered bull trout.
Oakley, the DOJ lawyer, said the land is already considered somewhat degraded and that Revett had agreed to totally restore the land, after completing construction, to optimal breeding habitat conditions.