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Mining Company Wins Rock Creek Project Appeal in Ninth Circuit

By Robyn Hagan Cain on November 18, 2011 | Last updated on March 21, 2019

The Ninth Circuit Court of Appeals ruled today that Revett Silver Company can move forward with plans to build and operate a copper and silver mine in northwest Montana, part of which will be located on land managed by the U.S. Forest Service.

Revett’s plans had been on hold as opponents pursued claims under the Endangered Species Act (ESA) that the proposed mine would endanger the bull trout and grizzly bear populations in the area.

Though the Fish and Wildlife Service had issued two biological opinions that concluded that the mine would result in “no adverse modification” to the bull trout habitat, and “no jeopardy” to the grizzly bear population, Rock Creek Alliance challenged that the opinions were arbitrary, capricious, and in violation of the ESA.

After a district court granted summary judgment in favor of Revett and the Forest Service, Rock Creek Alliance appealed, arguing that the Fish and Wildlife Service improperly relied on large-scale analysis in evaluating the mine's impact on bull trout, and did not adequately address the mine's impact on bull trout recovery. The group also claimed that the Forest Service methodology for calculating grizzly bear habitat mitigation was flawed, and the grizzly bear habitat mitigation plan was unreasonably speculative.

The Ninth Circuit Court of Appeals disagreed, finding the ruling was not arbitrary, capricious, or otherwise improper.

First, the court ruled that the Fish and Wildlife Service's bull trout habitat conclusion was not based solely on the scale of the impact, but also on the duration and the level by which the habitat's functionality would be diminished. The Ninth Circuit noted, "Because there is no evidence in the record that the Fish and Wildlife Service masked 'some localized risk ... by [the] use of large scale analysis,' we should not second-guess the Fish and Wildlife Service's conclusion that the mine would not adversely affect the critical habitat."

Second, the Ninth Circuit found that the Fish and Wildlife Service explicitly addressed bull trout recovery, concluding that, "at most, the rate of recovery of the core area population may slow slightly, if at all, assuming fish passage at the dams and habitat restoration continues and is successful."

Third, the court held that the methodology for calculating the necessary amount of grizzly bear habitat mitigation was not flawed. The Fish and Wildlife Service's failure to numerically discount the effectiveness of proposed mitigation parcels was not critical because the parcels are already impacted by existing development.

Finally, the Ninth Circuit found that the Fish and Wildlife Service's mitigation plan met precedential requirements that an agency must have "specific and binding plans," "solid guarantees," and a "clear, definite commitment of resources."

Revett is reviewing the decision and its implications before taking further action on the project, reports Yahoo! Finance.

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