Tribal group, enviros seek a win in Rock Creek Mine suit

By Reader Staff

Environmental groups are pressing a Montana federal judge to issue a decision to prevent federal regulators from further authorizing a copper and silver mine project until they comply with the Endangered Species Act. 

The Ksanka Kupaqa Xa’lcin, a tribal group linked to the Ksanka Band of the Ktunaxa (Kootenai) Nation, in conjunction with several environmental organizations, are seeking an order to set aside U.S. Fish and Wildlife and U.S. Forest Service approvals for the Rock Creek Mine and vacate determinations saying the project will not jeopardize protected bull trout and grizzly bears.

The mine is intended for the Cabinet Mountains of northwest Montana, which are sacred to the Ktunaxa people and home to one of the last grizzly bear populations in the lower 48 states. The bears and bull trout hold spiritual and cultural importance to the Ktunaxa people, according to the suit.

Accompanying groups, including the Rock Creek Alliance, Earthworks and the Montana Environmental Information Center, accuse the agencies of failing to renew ESA consultation to consider the impacts on grizzly bears and challenge the Forest Service’s record of decisions authorizing Phase I of the mine, which the groups said would involve blasting a 6,300-foot underground to access the mineral deposit and generate 90,000 tons of waste.

They also claim the FWS’s 2017 bull trout biological opinion for the mine is unlawful because, months into the litigation, the agency withdrew an incidental take statement, according to the complaint. 

The ESA requires the FWS to issue an incidental take statement whenever it concludes a proposed action will not jeopardize a species but will result in “take,” or unintentional but not unexpected harm, kill or collection, according to the groups.  

Challenges to the Rock Creek Mine go back two decades and have sparked litigation and judicial intervention to correct “repeated unlawful approval for the mine,” the groups said. 

The case is Ksanka Kupaqa Xa’lcin et al. v. United States Fish and Wildlife Service et al., case number 9:19-cv-00020, in the U.S. District Court for the District of Montana.