Summary judgment is sought in mine saga

News editor | June 23, 2020 1:00 AM

SANDPOINT — Environmental groups and a band of Native Americans are moving to bring a swift end to a lawsuit over federal determinations that the proposed Rock Creek Mine will not jeopardize bull trout and grizzly bear populations in northwestern Montana.

Counsel for the Ksanka Kupaqa Xa’lcin, a tribal group linked to the Ksanka Band of the Ktunaxa (Kootenai) Nation and six environmental groups, which include the Rock Creek Alliance, filed a motion for summary judgment in their lawsuit against the U.S. Fish & Wildlife Service and U.S. Forest Service on Wednesday, according to U.S. District Court records. The groups argue that the matter can be decided without the need for a trial.

“This court should enter summary judgment for plaintiffs because there are no genuine issues of material fact and plaintiffs are entitled to judgment as a matter of law,” Katherine O’Brien, counsel for Earthjustice, said in the motion.

Other plaintiffs in the suit include the Montana Environmental Information Center, Defenders of Wildlife, the Sierra Club and the Center for Biological Diversity.

The plaintiffs are seeking oral argument on the motion because the federal determinations on grizzly bear and bull trout enable RC Resources Inc. to commence development of the controversial copper and silver mining project near Noxon.

The mine would be located in the Cabinet Mountains, 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.

The groups accuse federal officials of failing to renew consultation under the Endangered Species Act to consider impacts on grizzly bear and are challenging the Forest Service’s record of decisions authorizing the inaugural phase of the mine, which the groups contend involves blasting a 6,300-foot underground adit to access the mineral deposits and generating 90,000 tons of waste.

Since the court last reviewed ESA challenges to Rock Creek Mine in 2010, the groups say the agencies now have data showing the key measures relied on to mitigate the mine’s mortality risks to grizzly bears have failed to reduce the number of grizzly bear killings in the region even without the mine underway. They further contend the agencies have conceded that an ESA analysis upheld up by the court in 2010 failed to address major, permanent harm the mine would inflict on bull trout by draining water from wilderness streams on which the species depends.

Mary Crowe Costello, executive director and co-founder of the Rock Creek Alliance, said the group’s 1,000 members are concerned about the impacts hard rock mining on wilderness lands, fish and wildlife habitat, and area lakes and streams. Construction of the mine threatens the public’s enjoyment of the area for solitude, recreation and wildlife viewing.

“A ruling by the court invalidating the Forest Service’s record of decision approving the evaluation phase and the Fish & Wildlife Service’s biological opinions would remedy this harm,” Costello said in a declaration filed in U.S. District Court.

Keith Kinnaird can be reached by email at and follow him on Twitter @KeithDailyBee.