Multiple conservation groups sued in federal court last year to overturn the Forest Service approval of the Perpetua Resources mining plan. That lawsuit is still active, but the request that the court stop construction activities while the legal challenge plays out was denied, and they have appealed that denial to the Ninth Circuit.
Troy Oppie spoke with Bryan Hurlbutt with Advocates For The West and the lead attorney for the conservation groups. He said they asked for an emergency injunction this spring after the mining company proceeded with work that went beyond an agreement plaintiffs and Perpetua had for what pre-construction work the company could undertake during litigation.
Read the full transcript below.
Hurlbutt: We were most concerned with constructing the burnt log route, which is a new access road to the mine site. There's already access to the mine site that Perpetua and other mining companies have been using for decades. But Perpetua is proposed in the Forest Service, approved putting in a new access route that would link up from Warm Lake area up over to Landmark, and then on existing roads, and then include a new road, as well as major additions to existing roads to run along this ridgeline just west of the Frank church River of No Return Wilderness. Parts of that go through roadless areas. We have a roadless rule in Idaho that is designed to protect, you know, remaining roadless areas in our national forests.
Oppie: Perpetua says the route is more, quote, environmentally sound. It has fewer river crossings and reduced exposure to water overall and reduced avalanche risk. Is there a completely different option that your clients would rather see?
Hurlbutt: Yeah. Unfortunately, for this scale of a mine, in such a remote and sensitive location, there's not any really great option for access in mining there. So neither option is a great route, but our clients really don't want to see a new and additional route through these remote roadless areas. And even if the new route is built, it's not like the Johnson Creek route is going to go away. The mining company will still use that for some of their initial construction activities. It'll still be a backup route that can be used if for any reason, the burnt log routes closed in an accessible while mining is underway. So we're, you know, concerned with having two routes instead of just one.
Oppie: The injunction request and now the appeal of its denial to the Ninth Circuit narrowly focuses on approval of the burnt log route, with some claims under the Endangered Species Act as well, regarding the threat to fish and wolverine habitat within the mining footprint. But other parts of the original lawsuit are still being actively litigated before Idaho District Judge Amanda Brailsford. In a filing last week, Perpetua argued that splitting the issues up for the injunction potentially sets up an unfair string of delays to the company as the different legal arguments work through their own processes. That, Perpetua argued could also compromise the security of the United States because it delays the start of mining for antimony at Stibnite, which will be the only domestic source of the critical mineral used in weapons, manufacturing and other industries. Perpetua has asked Brailsford to issue a comprehensive judgment as soon as possible so that any appeal could be comprehensive as well. I asked Hurlbutt about the other issues the lawsuit is challenging over the Forest Service approval of the mine.
Hurlbutt: In addition to the burnt log route and other aspects of this web of infrastructure, like the transmission line that need to be built to the mine site, those are all problems that are going to fragment large areas of forest leading to the mine site. But then at the mine site itself, it's three different open pit gold mines, two of those for gold and antimony, one of them just purely for gold. There's also significant building of ore processing facilities at the site and then a huge tailings storage facility, which is where all the mining waste will be stored. And so these have all kinds of extensive impacts on downstream water quality, on fish and wildlife habitat at and around the site. And we have raised a number of claims that try to address some of those.
Oppie: There's a similar lawsuit from the Nez Perce tribe, and there's other legal action, challenging permits for the mine and its operations issued by the state Department of Environmental Quality. On June 7th, an Ada County judge denied an appeal of the permit to construct, which was issued by DEQ. Hurlbutt says his group is still evaluating whether to appeal that decision to the state Supreme Court. That's one of three state permits being challenged by mine opponents. Other new litigation is still possible, as well as two of the seven required state permits for the mine are either in progress or have not yet been applied for, according to DEQ. Perpetua, meanwhile, presses on with what it calls, quote, critical path construction. It will take two years, including this one, to complete the burnt log route mining activities projected to begin by the end of the decade. In a statement, the company spokesperson says they are confident in their plan after, quote, years of environmental analysis, study and permitting work by myriad federal and state agencies upon which it is built, unquote. The company points to that work and recent legal rulings in the project's favor as evidence they've prepared the right way within what current law, which dates to 1872, allows.
Hurlbutt: The mining law of 1872 is a huge problem because it does allow and to some degree prioritize over other interests mining on our public lands. And so until that law is reformed, which is something that our clients and others have been pushing for for years and hopefully will happen, um, we are in a bit of a challenging situation. So reforming the mining law is important and a huge issue. That said here, even within the very mining friendly, uh, terms of the mining law, the Forest Service has really gone too far, and a number of our legal claims have to do with the Forest Service, not just allowing Perpetua to build the mine and operate the mine at the mine site where it has mining claims. But the way that it has expanded those rights to permit Perpetua to build the web of infrastructure that leads to the mine site, including the burnt log route and the transmission line, and related gravel mines and things necessary to build those. Our argument is that those are not part of the mine itself, and can't be approved by the industry friendly mining law, but require typical approval that you would get for the Forest Service to build a road or build a transmission line or build a gravel mine. But the Forest Service bypassed those there and just lumped those in as part of the mine and approved them under the mining law of 1872, without the same requirements and restrictions that would normally be required to build a road and a power line and gravel pits throughout our national forests.
Oppie: Those arguments that were made in district courts, Judge Brailsford seemed to suggest in her ruling that she didn't think those merits were likely to succeed. Uh, down the process. Are you are you changing your tact or approach with any of those arguments as the process now continues?
Hurlbutt: We're pursuing the same issues, um, on appeal in the Ninth Circuit right now. Um, there's good, uh, recent ninth circuit case law from a few years ago in the Rosemont case where the ninth Circuit, um, agreed with this idea that we're promoting here that mining companies have rights under the mining law, but those are limited to the locations where they have their actual mining claims, and they don't extend out into other parts of our public lands. So, um, we'll be pursuing that in the Ninth Circuit and hope to prevail on that.
Transcript generated by software, but edited by humans.
