Environmentalists sue to stop what they say would be violations of state laws

By Tracy Stone-Manning
for Headwaters News

Earlier this year, the New York Times ran a Page One story familiar to so many: Agencies issue permit to mine; environmentalists vow to sue.

It seems a yawner — we’re all so used to it — but perhaps it landed on Page One of the Times because of an added twist: This particular copper and silver deposit sits beneath the Cabinet Mountain Wilderness in Montana, one of the original areas protected under the landmark 1964 Wilderness Act. The miners will work from the edge of the wilderness, boring three miles laterally to get to the ore.

And while mining under a designated wilderness area is philosophically abhorrent, that is not what led environmentalists, including the group I work for, to sue, though it certainly fueled our resolve. We're suing the government for issuing the permit because it allows the miners to violate clean water and clean air standards.

While the mine fight is the same old story on paper, the mine site is a place, a beautiful bit of wilderness that deserves description. In the northwest corner of Montana, the Cabinet Mountain Wilderness is wet, much wetter than the rest of the state.

This is not Big Sky country. Its towering firs and cedars wrap in around you. It is muffled, not windswept. It is home to bull trout, harlequin ducks, lynx, wolverines and a struggling population of grizzly bears.

The mine threatens to drain two wilderness lakes. All wilderness lakes are beautiful, but there’s something particularly calming about Cliff Lake. The blueness, maybe. Or the stillness.

Rock Creek, from which the mine draws its name, drains out of the wilderness and into the Clark Fork River, about 25 miles upstream from Lake Pend Oreille in Idaho. Pend Oreille is big, clean, and beautiful. It’s one of the West’s secrets. A few years back, 1,500 of the 5,000 residents in the lakeshore town of Sandpoint marched in opposition to the mine.

Montana’s Sanders County, home of the mine site, is struggling economically. Sure, some want the jobs that the mine would provide. But residents here are wary of mining. So much so that Sanders County voters were among those that carried the successful ballot initiative to ban cyanide heap leach mining in Montana. (Cyanide heap leaching is typically used in gold mining and would not be used at Rock Creek.)

People here seem to understand that boom equals bust.

They’re also leery of Sterling Mining Company, whose principals, including Frank Duval, have left a string of spectacular messes in their wake: bankruptcies, SEC violations and polluted landscapes.

The mine permit was issued by two agencies, the Forest Service and Montana’s Department of Environmental Quality. They issued the decision, in the making for nearly 15 years, the day after Christmas.

Of course we cried foul. It’s clear the agencies were attempting to slip the decision past the public. Who wouldn’t? More likely than not, they were embarrassed by it. They excused the decision by saying their hands were tied by the 1872 Mining Law, the trump card of development. It’s "the devil made me do it" argument.

In 1872, the U.S. government was hoping to settle the West. What better way than a whopping subsidy to encourage that settlement: Miners could stake free claims on federal mineral deposits; the miners didn’t have to pay the government any share of the loot; the right to mine superseded all other landowner rights; and if need be, the miners could buy the land above the minerals for a mere $5 per acre.

Much has changed since then. Women can vote now. The Cavalry no longer slips out on Indian-killing raids. Miners no longer use a pick and a shovel. The West settled, and then some.

The mining law, however, is still in effect, despite repeated efforts to reform it. And while agencies claim to have their hands tied, they cannot violate other laws in their scramble to uphold 1872’s mineral giveaway.

Yet that’s what they’re doing at Rock Creek. That’s why I believe we’ll win this battle for this one place. In part, that’s what keeps me going to work every day.

At the same time, the effort, singular and battle-like, is deeply frustrating. I don’t like suing. It reeks of us against them, society pitted against itself. Maybe that’s why people complain that environmentalists sue too much, as if we do it for sport. But those criticisms miss an important point. More often than not we win in court, where laws and reason hold sway.

Even though environmentalists can claim these short-term victories, we're all – agencies and the public – losing in the long term. It's a paradigm of conflict, the old West against the new, recycled in place after unspoiled place.

Agencies issue permits; environmentalists sue. We're at odds when we should be working together to forge a future of healthy economies, communities and landscapes.

It's as if we are battling over the merits of a vestigial tail when we could and should be crafting the equivalent of an opposable thumb.