by Dan Egan

For now, bull trout still swim in Rock Creek and a handful of grizzly bears still roam the narrow spine of the Cabinet Mountains in northwest Montana. Both species are blissfully unaware of the legal and political battle surrounding their federally protected home in the Cabinet Mountains Wilderness Area. At issue is the Rock Creek Mine, which would tunnel three miles directly beneath the wilderness area. Opponents have said for years that the mine would threaten the integrity of the ecosystem and destroy habitat for a wide variety of wildlife species, including grizzly bear and bull trout. Both species are protected under the Endangered Species Act.

Last week, the controversial Rock Creek Mine took another step closer to becoming a reality after the U.S. Forest Service and the state of Montana released their joint final environmental impact statement giving the green light for the project to proceed. The document clears the way for a government "Record of Decision," which is expected in 30 to 60 days and will provide the final stamp of approval for the proposed mine. Environmental groups say it's hardly the final word, however, and that they will fight the decision through administrative appeals and in court if necessary.

"We will appeal any effort to permit this mine," says Mary Mitchell of the Sandpoint-based Rock Creek Alliance (RCA). "Lake Pend Oreille is the lifeblood of North Idaho, and we intend to do whatever it takes to protect it."

Mitchell says RCA has a long list of problems with the mine, which will be located 25 miles upstream from Lake Pend Oreille. "One of the big issues is the cumulative impacts to the lake have never been assessed. There will be pollution coming into the lake every day."

It's been nearly 15 years since ASARCO (American Smelting and Refining Company) first tried to secure permits to develop this mine, which would be one of the country's largest copper and silver mines. It's to be located close to Noxon, Mont., just southwest of Libby.

But two years ago, ASARCO sold its interests in the Rock Creek project to Sterling Mining Company, based in Veradale, Wash., which is now pursuing the project. The mine would bring 330 full time jobs to Sanders County, where unemployment is often double the national average. But the mine would also release 3 million gallons of treated wastewater into the Clark Fork River every day. It would use the so-called room-and-pillar mining method, which involves tunneling three miles beneath the Cabinet Mountains Wilderness Area, with the goal of extracting 10,000 tons of copper and silver ore every day for 35 years.

At the project's end, the mine would leave 100 million tons of tailings behind. These would have been slurried from the digging site through five miles of pipeline along Rock Creek, and finally dewatered and stacked in an impoundment pile approximately 400 yards from both Rock Creek and the Clark Fork River.

The final version of the Rock Creek Mine environmental impact statement -- a 2,700-page document -- was released last Thursday. It offers a "preferred alternative," which would allow the mine to operate if it complies with a number of recommendations to protect the wilderness area, water quality and habitat. Such recommendations include 1,000-foot buffers between the mine and two small wilderness lakes, a dual water treatment system, reducing traffic on Forest Service roads by bussing employees to the mine and pumping ore out rather than trucking it.

John McKay, project coordinator with the U.S. Forest Service, says the agency's preferred alternative is "the one we put forward that we feel meets all laws and requirements."

Tracy Stone-Manning, executive director of the Clark Fork Coalition, is not impressed: "As we expected, we find it to be a pretty flawed document. The mine would unduly impact water quality and the endangered species' habitat."

She adds that Montana has a poor track record on permitting mines. "Eight of the 12 major mines in Montana have serious water quality impacts, which neither the company nor the agency expected. Those are odds we're just not willing to take at Rock Creek."

The permitting process for the Rock

Creek Mine requires approval from

three agencies to get the go-ahead. Opponents saw the handwriting on the wall when the first of the three agencies, the U.S. Fish and Wildlife Service (FWS), approved the project back in February. Last month, eight conservation groups, represented by Earthjustice, filed a lawsuit against the agency because of its decision to approve the mine.

"By signing off on the Rock Creek Mine, the Fish and Wildlife Service has issued a death warrant for the Cabinets' grizzlies and trout," says Louisa Wilcox of the Sierra Club in a release.

The target of the suit is the agency's "biological opinion," which warns that the mine is "likely to jeopardize the continued existence of the grizzly bear in the Cabinet-Yaak Ecosystem," and that "bull trout in Rock Creek will be adversely affected."

Nevertheless, the FWS approved the mine, provided that Sterling obeys certain environmental restrictions. They include stream habitat enhancement, monitoring of groundwater and stream water quality and sediment reduction.

The agency also offered proposals to minimize threats to the grizzly bear, including the future purchase of replacement habitat. But opponents say the problem is that there is no such land available.

"All the mitigation plans they put in for the bull trout and grizzly bears are total fluff," says Chase Davis, regional representative for the Sierra Club. "There's no real substance behind how they're actually going to protect the grizzly and bull trout from the effects of this mine."

Davis sees the FWS' decision as a reflection of the current administration. "Once again, we're shortchanging sensitive species and sensitive areas so the Bush administration can help out their corporate campaign contributors in the mining industry," he says.

There are not that many bears left. The FWS estimates that as few as 11 bears might remain, a number that experts agree put the bear on the verge of extinction and could end all hope of survival for the Cabinet-Yaak grizzlies. The FWS opinion also acknowledges that the mine could eradicate the bull trout in Rock Creek, which is considered a core recovery area for the native species. Rock Creek is also home to genetically pure strains of Westslope Cutthroat trout, another dwindling native fish that is proposed for listing under the Endangered Species Act.

Earthjustice attorney Sanjay Narayan says the FWS's biological opinion is legally insufficient because it isn't comprehensive enough. "If they recognize that the mine jeopardizes the grizzly population in the Cabinet-Yaak, they're under legal obligation to do something about it, and they simply haven't done that," says Narayan. "They've basically said, 'We'll deal with it later.' "

Another key issue with the mine is its very location. The mine would lie within a narrow, seven-mile-wide habitat corridor in the Cabinet Mountains. Narayan says because of the increased roads and human activity there, it could create a barrier to passage that could pinch off the lower third of the ecosystem, and essentially cut off 30 percent of the habitat.

"The agencies have been trying for years to find ways to mitigate the impacts of this mine," says Mitchell. "The impacts are too severe. It can't be done." She adds that the proposed methods for treating mine wastewater and the mine tailings are unproven. "Everything they're proposing is experimental."

Mitchell got involved in the Rock Creek Alliance after she heard about the mine proposal and asked the same question many others have asked: How can they mine a protected wilderness area?

The answer lies in an 1872 federal mining law, which gives mining companies the right to extract minerals from publicly owned lands. Under the law, mining companies can patent mineral claims on public land for a minimal price ($2.50 to $5.50 per acre), thus privatizing public land at virtually no cost to the company and paying no royalties or reasonable compensation to the government or public.

The 129-year-old law has been called the Granddaddy of Subsidies and it still carries a lot of legal weight. Historically, oversight agencies have had trouble rejecting projects on federal lands because of their absolute right to mine.

However, any new mining activities must still adhere to all federal and state laws, such as the Clean Water Act, the Endangered Species Act or the Wilderness Act. Opponents maintain the Rock Creek Mine would be in violation of each of these federal laws.

"We're just trying to enforce the laws that are on the books," says Mitchell.

Sterling's Chief Executive Officer Frank Duval says developing a new mine may not be feasible right away, given the current state of the market: "Heavy metal prices are very difficult for everybody that's even in production today, let alone trying to develop a new project. But I think there's additional work that needs to be done to see how and where you might be able to cut some projected costs and make it more efficient."

Now the spotlight shifts to Bob Castaneda, forest supervisor for the USFS, and Jan Sensibaugh, director of Montana's Department of Environmental Quality, to issue the final Record of Decision. "The timeline for that is 30 days," says the Forest Service's McKay. "But most likely it will be a lot longer. And we know we'll have appeals and litigation."

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