Lawsuit Filed Against Forest Service Concerning Proposed Gold Mine Project

June 5, 2007

by Nancy Netherton, The Bureau of National Affairs

SEATTLE--The U.S. Forest Service violated the Clean Water Act, National Environmental Policy Act, and other federal laws by making decisions to support a proposed underground gold mining operation in north central Washington, according to a lawsuit filed by the Okanogan Highlands Alliance (Okanogan Highlands Alliance v. U.S. Forest Service, Or., No. 07-792-KI, 5/29/07).

The nonprofit alliance filed a complaint for declaratory and injunctive relief on May 29 in the U.S. District Court for the District of Oregon challenging a Forest Service record of decision and final environmental impact statement concerning development of an underground gold mine at Buckhorn Mountain in Washington's Okanogan Highlands.

The Forest Service approved the preferred access route of the Canadian-based Kinross Gold Corp. to the mountain, "despite the existence of Forest-Service-approved existing access and the government's express acknowledgement" that existing roads would have "significantly fewer environmental impacts" and would be the preferred alternative, the complaint said.

In approving the route, the agency failed to properly apply the Clean Water Act and violated the NEPA requirement that the agency "take a hard look at the environmental impacts and alternatives to the company's chosen project," the complaint said.

The road access project will "result in significant sediment loads being delivered to area streams," according to the plaintiffs (223 DEN A-9, 11/21/05).

The complaint also challenges the Forest Service amendment of the forest plan for the Okanogan National Forest to support development of the Buckhorn Access Project.

In addition, the federal agency violated the Alaska National Interest Lands Conservation Act, National Forest Management Act, Forest Service Organic Administration Act of 1897, Federal Land Policy and Management Act, General Mining Law of 1872, and the Administrative Procedure Act, the complaint said.

The project involves construction of a 24-foot road along a creek "to accommodate more than 100 30-ton ore trucks per day and the discharge of water from de-watering Buckhorn Mountain so Kinross Gold Company can mine deep in the aquifer," according to a May 30 statement by the Okanogan Highlands Alliance.

The agency approved forest plan amendments that "allow an increase in the amount of sediment that may flow into creeks adjacent to the mining road, harming imperiled fish species," the statement said.

The complaint charges that in the EIS, the Forest Service failed to select the least harmful alternative, the alliance said.

The lawsuit said the Forest Service violated the Clean Water Act by approving the mine access proposal without Kinross first having obtained a Section 401 certification from the state of Washington.

"That has not occurred," the complaint said.

Kinross has not applied for and received the required Clean Water Act National Pollutant Discharge Elimination System permit from the state and Section 404 permit from the U.S. Army Corps of Engineers, although the agency has issued the record of decision and EIS, the plaintiffs said.

The federal agency has not "ensured that the access project and mining and related operations will comply with state water quality standards," including impacts of sediment discharges caused by building roads, according to the complaint.

By amending the forest plan, the agency allowed "currently established sediment pollution standards to be violated," the lawsuit said.

"The drying up of streams caused by the de-watering of the mine as well as the subsequent discharge of this water will have detrimental impacts on aquatic life and impair other beneficial uses of streams," according to the complaint.

A comment period on the state's revised draft of the NPDES permit for the project ends June 24. The permit concerns discharges of treated mine water and stormwater, according to a Department of Ecology fact sheet for the project.

The Okanogan Highlands Alliance statement is available at http://www.televar.com/kliegoha/.

Information on the Kinross project is available at http://www.kinross.com/operations/usa-kettle-river.html.

Documents related to the Department of Ecology permit for the Buckhorn proposal may be found in an alphabetized list of permits concerning water quality at http://www.ecy.wa.gov/programs/wq/permits/central_permits.html. .