BOISE (CN) – The U.S. Forest Service illegally used an “exclusion” to approve mining in a National Forest and duck disclosure requirements, the Idaho Conservation League claims in Federal Court.
The Conservation League claims the Forest Service violates the National Environmental Policy Act, the National Forest Management Act and the National Park Service Organic Act by using NEPA’s “Categorical Exclusion No. 8” to approve mining without public disclosure or environmental studies.
Categorical exclusions under NEPA apply to a “category of actions” that are deemed not to have a “significant effect on the human environment” and therefore do not require environmental assessments or impact statements.
In its July 24 lawsuit, the Conservation League says the Forest Service unlawfully applied the exclusion in its July 10 Decision Memo approving the East Boulder project for a second year.
The project area is about 3 miles south of the Salmon River and 11 miles west of North Fork, Idaho, which is named for the confluence of the North Fork of the Salmon River with the main stream. It is the gateway to the Frank Church Wilderness Area.
Lewis and Clark are said to have met a local Native American named “Toby” near North Fork. Toby allegedly got the expedition lost heading into Montana, ultimately resulting in the naming of the Idaho-Montana mountain pass “Lost Trail” Pass.
“The Forest Service has been broadly utilizing CE No. 8 to avoid disclosure of mining exploration projects in our national forests, including the East Boulder Exploration Project in the Salmon-Challis National Forest,” according to a 20-page complaint.
“CE No. 8 purports to authorize the Forest Service to avoid preparing an EA [Environmental Assessment] or EIS [Environmental Impact Statement] for certain mining exploration projects, which are ‘short-term (1 year or less).'”
The group says the Forest Service ignored NEPA language stating that categorical exclusions do not apply to projects that could affect protected areas.
“The Forest Service cannot rely on CE No. 8 to avoid preparing an EA or EIS for this project, since it impacts sensitive resources – including protected wetlands and riparian areas on East Boulder Creek, which is a tributary to the Main Salmon River – and allows the project applicant to drive motor vehicles through the streams and to construct roads within the Napoleon Ridge Inventoried Roadless Area,” the complaint states.
In its own handbook, the Forest Service states: “A proposed action may be categorically excluded from further analysis and documentation in an EIS or EA only if there are no extraordinary circumstances related the proposed action.”
Chapter 30 of the handbook for “Categorical Exclusion from Documentation” defines extraordinary circumstances, in part, as threatened or endangered species, critical habitat, flood plains, wetlands, federally designated wilderness, wilderness study areas, national recreation areas and inventoried roadless areas or “potential wilderness areas.”
The mining project would include reopening an “old half-mile-long non-system road in the Napoleon Ridge Roadless Area that is closed to motorized vehicles and does not appear on public Forest Service maps.” It would require transportation of heavy equipment, daily use of ATVs, construction of two temporary log bridges, drilling 50 auger holes and excavating four trenches, according to the complaint.
“An on-site machine would process the excavated material with water from East Boulder Creek to determine gold content,” the complaint states. “Process wastewater would be pumped into existing settling ponds, which have not been used for mining activities since the 1940s. Any wastewater in the ponds that does not subside would be sprayed on undisclosed locations on native vegetation for dispersal into the ground.”
The Conservation League claims the Forest Service’s “hasty” approval also violated the forest plan for the Salmon-Challis National Forest.
“Not only did the Forest Service inappropriately use CE No. 8 for a second year, and fail to consider cumulative impacts, but the agency also failed to disclose important baseline information and failed to adequately assess and minimize potential impacts to multiple resources, including but not limited to roadless areas, floodplains and wetlands, special status fish species … surface water and ground water,” according to the complaint.
Plaintiff attorneys Bryan Hurlbutt and Marc Shumaker, with Advocates of the West, were not available for comment after hours Monday.
A U.S. Forest Service spokesperson could be reached for comment.
The Conservation League asks the court to set aside the Decision Memo approving the East Boulder Exploration Project and to grant a “temporary, preliminary or permanent injunction” preventing further exploratory activity in the area.
It also seeks costs and attorneys’ fees under the Equal Access to Justice Act.
Roger Flynn of Western Mining Action Project, in Lyons, Colo., represents the Conservation League pro hac vice.
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