Rock and a hard place 

After a 14-year war of attrition, the Rock Creek Mine now has the green light to open. Will it ever see the light of day?

Noxon businessman Jeff Aitken sees himself as someone who usually looks things down the middle. But when it comes to the long-proposed Rock Creek Mine being blasted under the nearby Cabinet Mountains Wilderness, he’s choosing sides.

“There’s no people really speaking for [the mine], like the idiots raising money to fight it,” says Aitken, who owns a motel, car wash and Exxon gas station in this tiny Sanders County town. “But I think the government is going to make them do it cleanly. If the different agencies say they can do it the right way, then give it a shot.”

After 14 years of deliberation, the U.S. Forest Service and the Montana Department of Environmental Quality (DEQ) in late December jointly ruled that the massive copper and silver mine—the first in the nation to be allowed beneath a federal wilderness area—can proceed in two stages.

“This decision came as no surprise, particularly in light of the draft and final environmental impact statements,” says Mary Mitchell, executive director of the Idaho-based Rock Creek Alliance, which has long opposed the project. “We had high hopes of stopping this when Mike Dombeck was head of the Forest Service, but it didn’t happen.”

The first step, which could occur within the next year or two, involves drilling of an exploration shaft at the site to confirm the size and value of the ore body, which sits below a maze of fractured bedrock topped by numerous lakes and streams within the 93,000-acre roadless preserve.

“We’re pleased that the decision is out,” says Frank Duval, president and chief executive officer of Sterling Mining Company, the Spokane-based firm holding mineral claims on public and private lands in the area. “Now we’ll have to wait and see what happens next.”

According to Duval, a feasibility study is the second order of business. The mine, expected to produce about 10,000 tons of ore a day, could follow if the underground cache of metals, mineral prices, and the availability of deep-pocket investors align with company predictions.

Conservationists from around the region are promising to bring lawsuits because of plans to construct tunnels running as much as three miles below the Cabinet Mountains, a large and noisy ventilation shaft protruding inside the wilderness area itself, and related threats to water quality and wildlife. This despite a record $77 million bond that regulators propose to levy for land and water reclamation, an additional $4.2 million bond for grizzly bear protection, and a host of other mitigation measures. In all, mine startup costs could reach an estimated $200 million, not including the costs of litigation.

“Most Americans believe wilderness is protected from mining and logging under the 1964 Wilderness Act,” says Jim Jensen, executive director of the Montana Environmental Information Center (MEIC). “In fact, the Rock Creek Mine shows that wilderness protection is not assured. It’s as certain to go to court as Montana is the most beautiful state in the union. This mine will never be built. It’s not able to under federal and state law. There is a very strong legal case.”

Mitchell, whose group recently closed its branch office in Missoula to consolidate resources for upcoming challenges to the project, says the recent agency decisions have pumped new life into the cause, and memberships and donations to her group have sharply increased in the last few weeks. One Idaho resident recently gave the Alliance a $3,000 sailboat to be auctioned off to help pay their expenses.

“Part of the challenge is keeping the public engaged now,” Mitchell says, adding that legal battles may be looming over implementation of the archaic 1872 Mining Law, the Endangered Species Act, the federal and state clean water acts and the Wilderness Act in relation to the mine decision. The first filings will be administrative appeals to the DEQ and the Forest Service. If those are denied, activists vow the issues will be pursued in state and federal court.

“I think there definitely could be some precedent-setting law coming out of this in both Montana and federal law,” Mitchell predicts.

Decades of debate

The Rock Creek Mine was first proposed by the American Smelting and Refining Company (ASARCO) in 1987. But the project, burdened with environmental concerns and battered by fluctuating mineral prices, never reached the permitting stage until now. Sterling purchased mineral rights for Rock Creek and the nearby Troy Mine from ASARCO in October 1999. Sterling expects Rock Creek to produce jobs and metals for up to 37 years.

“They own the rights to do it,” says Kootenai National Forest Supervisor Bob Castaneda, who signed off on last month’s decision. “We set the conditions on how they can mine.”

Although the nearby Troy Mine closed in 1993 because of low mineral prices, Canadian mining giant Noranda Inc.’s Montanore Mine is already permitted and poised for excavation on the north side of the Cabinet Mountains. Conservationists contend that the overall impacts of the three operations—which would all feed off the same general ore body—have never been adequately studied.

“The agencies are not very good at looking at cumulative impacts,” Mitchell says. “They just look at the project before them.”

State and federal regulators acknowledge that the Rock Creek proposal would have substantial impacts on protected grizzlies and bull trout, among other species. A coalition of conservation groups, led by the Alliance, has already sued over alleged shortfalls in a related U.S. Fish and Wildlife Service biological study. Such lawsuits anger people like Aitken, who stands to benefit if the mine proceeds.

“The people who come out and oppose it around here are people who moved here from some place else, have money and don’t do a damn thing,” Aitken charges. “It’s not like we live in Denver and there’s only one mountain to go to. It’s open country out here. If they close off one mountain, it’s not going to hurt anything.”

Toxic tailings

Sterling plans to use a room-and-pillar design for extracting the minerals from the core of the Cabinets, a method that the company says will help keep impacts to wilderness lakes and groundwater to a minimum. The ore would then be crushed at a nearby mill, and concentrates of copper and silver would be transported by railcar to an unspecified smelting facility. A major concern raised by conservationists is how to keep an estimated 100 million tons of tailings that will be stored near the Clark Fork River from polluting ground and surface waters.

Sterling plans to mix waste rock from the mine into a slurry that would be piped about five miles along Rock Creek to a 300-acre site about a quarter-mile east of the river. There the tailings would be dried and made into a paste the consistency of wet concrete. The paste would then be slabbed in an unlined and uncapped impoundment as much as 300 feet high.

Mitchell and other mine opponents contend that runoff from the site would be nearly impossible to control, and that the paste will eventually break down into a toxic, sand-like substance that can easily be transported by wind and water.

“This paste has never been done on the surface before, so we really don’t know if they can keep the moisture out of it,” Mitchell says, noting that the west slope of the Cabinet Range has some of the highest precipitation in western Montana. “There’s just no good way to get rid of these tailings.”

Idaho residents are worried that runoff from the mine and its massive waste pile will pollute the lower Clark Fork River and Lake Pend Oreille, important downstream tourist havens.

“Permitting this mine runs contrary to local economic interests,” says Jim Watkins, a real estate agent based in the Idaho Panhandle town of Sandpoint. “Eight of the 12 major mines in Montana have had significant water quality problems that the agencies claimed would never happen, problems like acidic runoff and contaminated drinking water. Permitting a mine that will pollute Idaho’s largest lake has the potential to cripple our economy.”

At full operation, the Rock Creek Mine is expected to release as much as 2.5 million gallons of treated water each day into the beleaguered Clark Fork, already a victim of mining abuses that created the nation’s largest Superfund site between Butte and Missoula. Regulators agree that once the mine is closed, it will likely fill with hundreds of millions of gallons of water that may need to be treated in perpetuity. The pending threat of the Rock Creek Mine prompted American Rivers, a national environmental group, to name the Clark Fork River as one of the continent’s most endangered waterways two years ago.

“A lot of folks look at what has happened to Lake Coeur d’Alene [from nearby Silver Valley mining pollution] and see the connect,” says Mitchell. “They can’t understand why the Forest Service would approve this.”

Water quality is also at the crux of concerns about native bull trout, which reside in Rock Creek, a key Clark Fork tributary that was designated a “core recovery area” for the threatened species by a state panel appointed by former Gov. Marc Racicot.

“You can’t have these metals and nutrients coming into the water day after day and not have impacts,” Mitchell says, who finds it ironic that a $62 million program to voluntarily reduce nutrients in the Clark Fork Basin will essentially be neutered if the Rock Creek project proceeds.

Then there’s Avista Corporation’s Cabinet Gorge and Noxon Rapids recent dam-relicensing agreement, which set aside $200 million to restore bull trout habitat and complete other related mitigation. Much of that work would also be erased by new mining pollution, conservationists argue.

“The Rock Creek decision demonstrates that [the Bush administration] is bent on promoting mining interests over local community interests, regardless of the severity of the impacts,” says Bonnie Gestring of the Mineral Policy Center in Missoula. “It the administration is unwilling to protect western communities and the water resources they rely on, then we need to look at legislation that will.”

Also at risk is the inherent solitude of the Cabinet Mountains Wilderness. But agency regulators say Sterling’s right to mine its minerals outweighs any aesthetic damage that may occur.

“The ventilation adit portal and the underground mining in the wilderness are considered necessary for the mining operations,” the Dec. 26 record of decision reads. “Noise from the ventilation adit could degrade the wilderness character. However, this is not inconsistent with the Wilderness Act since this facility may be required for Sterling to exercise the valid existing rights it owns [in the Cabinets] and provide for mine worker health and safety.”

Whipsawed bureaucrats

With silver and copper prices sagging—Duval says they would have to increase at least 20 percent from current levels to even begin making this mine feasible—no ribbon-cutting ceremonies are planned just yet at Rock Creek. But last summer’s release of a 2,700-page Final Environmental Impact Statement on the project helped sharpen the swords of proponents and opponents alike. Regulators and mining officials contend they have all the potential calamities raised in the document under control if the mine opens.

“The proof on going forward is that the project has to meet federal and state laws,” says Castaneda, the Kootenai Forest’s supervisor. “We always knew that water quality would be the largest concern. All studies so far show any discharges would meet discharge requirements.”

“There are enough safeguards in place. Too many,” Duval insists. “The agencies know what they’re doing, and what they’ve done will protect the environment and the species. What else can you ask?”

Nonetheless, conservationists remain skeptical. They point to other nearby mining messes, as well as a long history of extraction companies exploiting antiquated mining laws and dumping cleanup responsibilities on taxpayers after their government-condoned mines play out.

“There’s very little credibility in the assurances when you take a look at the track record,” says Gestring. “We hear assurances from the state and federal agencies all the time, that [mining problems] won’t occur. But they do anyway. It’s a guess, and they’ve been wrong more times than right.”

“Whether the Wilderness Act itself provides legal prohibition against this mine remains to be seen,” adds Todd True, a Seattle-based attorney with the Earthjustice Legal Defense Fund, which is preparing to challenge the project. “But it most likely won’t get to the Wilderness Act because we’ll protest the mine using the Endangered Species Act and the Clean Water Act. This is a mine that shouldn’t be built because of the environmental impacts. Apparently the regulatory agencies are willing to make the public pay for these impacts.”

One glaring detail in the recent record of decision is how many times the Montana DEQ notes that it cannot impose conditions on the Rock Creek Mine not already in the law. This is because the 2001 Legislature and Republican Gov. Judy Martz, in the name of reformation, gutted the Montana Environmental Policy Act through House Bill 473, sponsored by Rep. Cindy Younkin (R–Bozeman). Because of HB 473, state agencies can no longer impose public health and safety or fish and wildlife protections on development projects unless the conditions are specifically spelled out in other state laws or the project sponsor agrees to them.

In the case of the Rock Creek project, DEQ officials admit they cannot force Sterling to bus employees to the mine or mill, which would reduce road congestion and related pollution. Likewise, they can’t mandate alternatives for the rail loading facility, or enforce provisions to make the tailings pile and the mine complex less unsightly. They can’t control sound levels from equipment or require that the company take measures to prevent increased grizzly mortality. A score of other conditions the state was unable to place on the company’s activities is listed in the record of decision. In some cases, the Forest Service was able to mandate those conditions through its federal authority. In others, Sterling agreed to stipulations the state was unable to impose.

“We’re very concerned about the environment,” Duval recently told The Western News in Libby, where a now-closed vermiculite mine across the Cabinets from the Rock Creek project has been blamed for hundreds of deaths from asbestos-related illnesses. “But I’m sure W.R. Grace said the same thing when they came here.”

Promises, promises

The Rock Creek Mine, at full production, is expected to bring an estimated 500 direct and secondary jobs to this economically distraught region, something that many local residents, accustomed to tranquility in their remote valley, see as a mixed blessing at best.

According to Sterling officials, the targeted ore body likely contains more than 300 million ounces of silver and 2 billion pounds of copper, making it a potential world-class venture. The company says the operation will pump more than $22 million a year into the area’s economy in taxes and the purchase of goods and services. Groundwork is already being laid to compensate local governments in the area for expected increased demands for services such as water, sewers and police and fire protection.

“We need employment, that’s for damn sure,” says business owner Aitken. “We need manual labor jobs for people who aren’t that educated. A lot of people are hurting around here.”

But Noxon, a community of less than 1,000 people, and nearby Thompson Falls, the Sanders County seat, have been down this road before. The departure of ASARCO, now a struggling subsidiary of global mining conglomerate GroupoMexico, left many area citizens feeling used—and wary that another strain of carpetbaggers might be taking the company’s place.

“This area is very mixed in its loyalties,” observes state Rep. Paul Clark (D–Trout Creek), whose legislative district includes the proposed mine site. “There’s a big chunk of people who want the quality of life here left the same. They want economic development, but they don’t want economic development that will ruin the quality of the environment. My position on the mine has changed substantially since ASARCO pulled out. They made a lot of promises industry always makes to get in the door. But when the chips were down, ASARCO was gone.”

Mine opponents say they’re concerned about Sterling’s viability, especially considering that some of the company’s leaders are tied to past mining failures. They contend the firm will likely have a tough time raising the capital needed to fire up the Rock Creek project.

“These people who bought the mine are not reliable, honest people,” the MEIC’s Jensen says. “They picked this thing up for cheap, and many think they plan to turn around and sell it off.”

Duval and partner Hobart Teneff were co-founders of the now-defunct Pegasus Gold Inc., best known for its Zortman-Landusky gold mines in north-central Montana. State officials had initially set a $29 million bond for the project, but Pegasus filed for bankruptcy in 1998, leaving taxpayers with a polluted legacy in the Little Rocky Mountains and reclamation costs estimated at as much as $204 million.

Duval says he shouldn’t be blamed for the ensuing financial debacle at Pegasus, because when he left the company’s board in 1987 to become a consultant, the firm was still on solid footing.

In 1988, according to research conducted by the Helena law firm of Reynolds, Motl and Sherwood, the federal Securities and Exchange Commission (SEC) filed a complaint against Duval and Teneff and fellow board member Milton Zink for alleged violations of securities laws during their tenure with Pegasus. The commission charged that the trio improperly sold Pegasus part of a Nevada mine without disclosing they had a financial interest in the property. The men, who admitted no wrongdoing, eventually consented to a U.S. District Court injunction that permanently enjoins them from further violations.

“There is a reasonable likelihood that the defendants will, unless restrained and enjoined, continue to engage in the acts, practices, and courses of business set forth in this complaint...,” the SEC wrote at the time. Duval contends that the SEC case should not be raised now because it happened so far in the past.

Duval later surfaced at Idaho’s Bunker Hill Mine—situated in another one of the nation’s most heavily polluted mining corridors—and he and partners briefly reopened the operation before the company filed for bankruptcy protection. Records show that Duval was also involved in the reopening—and subsequent bankruptcy claim—at Idaho’s Star Phoenix Mine, where workers sued to recover more than $500,000 of back pay. He still serves as president of the Midnite Mine on Washington’s Spokane Indian Reservation, which was listed as a federal priority clean-up site in 2000 because of lingering pollution problems.

Meanwhile, Sterling consultant Tim Babcock, a former Republican governor of Montana, was a key player in attempts to open the ill-fated New World Mine outside Yellowstone National Park and to dismantle Initiative 137, the voter-imposed ban on new cyanide heap-leach mining operations in the state. Babcock is also a former director of the Denver-based Mountain States Legal Foundation, long a foe of conservationists.

“In the past, they’ve made too many mistakes to be coincidental,” Clark says of the company’s leadership. “I think the integrity and the past actions of the folks who are involved in this make a difference. They’re not here for jobs. They’re not here for community. They’re here to make a buck.”

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