Buckhorn Bulletin April 2007 Vol 2 No.10

OHA Appeals Forest Service EIS for Road Access and Other Facilities
On March 21, 2007, OHA appealed the USDA Forest Service (FS) Record of Decision approving the final Environmental Impact Statement (EIS) and the use of Marias Creek Rd for access for the proposed mine on Buckhorn Mountain. The 24 foot wide road plus shoulders (of which nearly a mile would be within 50 foot of the creek), would accommodate more than 100 30 ton ore trucks per day. The FS decision also approved the discharge of water from dewatering Buckhorn Mountain enabling Kinross Gold Company to mine deep into the aquifer. OHA contends that the FS failed to choose the least damaging alternative, that the decision violates the Clean Water Act, INFISH, it’s own Forest Plan, and fails to protect Federal Reserved Water Rights among other issues.
“The Forest Service’s decisions are based on the false premise that it must approve any activity on public land requested by a mining company, no matter how destructive. Recent federal court decisions have firmly ruled against the agency’s position. It appears that the Forest Service officials have not gotten the message,” said Roger Flynn, attorney with the Western Mining Action Project, the non-profit law firm representing OHA in this appeal.
In an extensive 54 page appeal with supporting documents, OHA alleges specific inadequacies, failures and violations of law. The Regional Forester will have 45 days to respond to OHA’s appeal.

APPEAL OF RECORD OF DECISION AND FINAL ENVIRONMENTAL IMPACT STATEMENT: BUCKHORN ACCESS PROJECT
Okanogan Highlands Alliance appeals the Record of Decision (“ROD”), Final Environmental Impact Statement (“FEIS”), and associated special use authorizations for the Buckhorn Access Project issued by Okanogan and Wenatchee National Forests Supervisor James L. Boynton on January 17, 2007.
The ROD and FEIS do not comply with numerous requirements of the National Environmental Policy Act (NEPA), the National Forest Management Act (NFMA), the Federal Land Policy and Management Act (FLPMA), the Alaska National Interest Lands Conservation Act (ANILCA), the 1872 Mining Law, the Forest Service Organic Act of 1897, the Clean Water Act (CWA), Forest Service mining and land use regulations, and several other federal and state environmental and public land laws, as well as the implementing regulations of these laws. As such, the ROD and FEIS must be rescinded and remanded with instructions to comply with all applicable requirements. In addition, any special use permits, authorizations, or mining plan of operations cannot be issued by the agency.
I. VIOLATION OF FOREST SERVICE LAND USE REGULATIONS, ANILCA, AND RELATED REQUIREMENTS The ROD and FEIS are based on the erroneous position that the chosen access alternative, B1, must be granted pursuant to ANILCA and the 1872 Mining Law.
II. VIOLATION OF THE CLEAN WATER ACT
Federal agencies are prohibited from issuing a federal license or permit for any activity that may result in a discharge into navigable waters until the permit applicant has obtained certification pursuant to Section 401 of the CWA
Section 313 of the CWA requires all federal agencies to comply with state water quality standards, including a state’s antidegradation policy.
III. NFMA VIOLATIONS AND RELATED ISSUES
NFMA requires all site-specific actions authorized by the Forest Service to be consistent with Forest Plan standards and guidelines.
A. INFISH and Related Forest Plan Violations
The Forest Plans, as amended by INFISH, establishes several standards that apply to activities plans authorized under the ROD in order to protect inland native fisheries. Since some of the authorized activities are inconsistent with INFISH standards, the ROD violates NFMA.
B. Illegal Amendment of Forest Plan
The agency cannot simply label a major Forest Plan Amendment “insignificant” to accommodate a site-specific proposal from an applicant for industrial use of national forest resources
IV. FAILURE TO PROTECT FEDERAL RESERVED WATER RIGHTS
Neither the ROD nor FEIS contains any discussion about the federal reserved waters rights that protects springs and waterholes on public land in the West. The FEIS admits, the mine dewatering will severely degrade and in some cases, eliminate, the flows from several springs and waterholes on federal public land
V. VIOLATION OF NEPA
NEPA “ensures that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.” The Forest Service failed to take the required “hard look” at all direct, indirect, and cumulative impacts.
A. Inappropriate Restriction on Scope of Review and Reliance on Non-NEPA State Review
The Forest Service inappropriately limits its primary NEPA review to just the impacts from the road access project and water management facilities that will occur on federal land.
B. Inadequate Cumulative Impacts Review
The FEIS fails to fully analyze all cumulative impacts from past, present, and reasonably foreseeable future activities in the area.
C. The Connected Actions of the Mine and the Road/Water Projects Requires Review in One Federal EIS
The Forest Service should also have reviewed the impacts from the mine, milling/processing and other related activities in one FEIS since it is clear that the these activities are “connected actions” under NEPA.
D. The Forest Service Violated NEPA by Not Considering a Reasonable Range of Alternatives.
E. Lack of Adequate Mitigation Review
NEPA requires that mitigation measures be fully reviewed in the NEPA process. Without such a discussion, neither the agency nor other interested groups and individuals can properly evaluate the severity of the adverse effects. Throughout the FEIS, the Forest Service relies on vague, untested, and unproven mitigation measures. Simply relying on future state-issued permits is not sufficient
VI. VIOLATION OF THE ORGANIC ACT OF 1897, FLPMA, and the FOREST SERVICE MINING AND SPECIAL USE REGULATIONS
A. Incorrect Assumptions of Mining “Rights”
The agency has also failed to analyze, and ensure, the protection of the environment, public interest and public treasury, as required by FLPMA and the special use regulations.
B. Failure to Comply with Forest Service Regulation of Mining
A simple and generalized reduction of impacts does not equate to the strict requirements for minimization of impacts and protection of resources
C. Failure to Require Adequate Financial Assurance

Ecology to Issue Water Rights: Places Kinross Interests Over Public Interest
It appears that the Washington State Department of Ecology is not concerned about the impacts of dewatering Buckhorn Mountain. In order to mine, people and fish and wildlife would be deprived of clean water. In some creeks it would be replaced with treated water that "meets minimum standards", other areas no replacement is planned. Ecology is not concerned that mine shafts would change the way water flows from Buckhorn Mountain affecting people dependent on that water. Ecology is not concerned that for the 15-40 years it would take to refill the aquifer inside Buckhorn Mountain the creeks, springs and seeps critical for healthy fish and wildlife would be deprived of water.
Ecology's mission is to protect our water, to keep it clean and healthy. Ecology should be protecting the public interest.

Once again Ecology is on track to disregard the laws that protect people's water and the public interest and giveaway more water from basins that they acknowledge have been over appropriated for more than 50 years and issue water rights to a multinational mining company.
There is no dispute that granting the proposed water right to Kinross would result in an impairment of existing rights. The only way to resolve this impairment would be mitigation. The proposed mitigation is insufficient and would not prevent impairment of existing rights.

OHA had some suggestions for comment to Ecology:

• Dewatering Buckhorn Mountain is unacceptable. The mitigation offered by Kinross does not come close to offseting the harm to senior water right users and the public interest.
• The speculative nature of the mitigation proposed does not meet the requirements that new water rights not impair existing rights and that new rights not be detrimental to the public welfare.
• The mitigation offered by Kinross is off-site and out- of-kind, primarily enhancement of downstream wetlands and streams instead of a long-term commitment to on-site restoration.
• There is an unreasonable level of uncertainty regarding the hydrogeologic modeling of the impacts of mine dewatering and the resulting streamflow depletion.
• No reliable mitigation is being offered for stream depletion during the post-mining refilling of the Buckhorn aquifer.
• Baseflow calculations of streamflows are questionable.
• Aquifer properties where stream flow reductions would take place are scarce. The modeling inputs are based on untested assumptions of aquifer behavior.
• Ecology fails to consider the cumulative impacts of granting Kinross water rights on local water supply and downstream water resources.
• Granting water rights to Kinross would be inconsistent with past actions by Ecology.
• There is too much uncertainty that the mitigation plan would adequately protect existing rights and instream flows from harm.

Follow the Waste - Infiltration Gallery
In order to mine, Buckhorn Mountain would have to be pumped dry, removing 450 feet of hydraulic head which would have direct impacts on surrounding waterways.
The process of mining involves drilling, blasting, and trucking the broken rock to the surface, leaving behind chemicals from the trucks and blasting and releasing other elements that were previously sequestered in the earth. Kinross plans to pump these pollutants along with the groundwater into a reservoir for settling and then into a treatment facility before being discharged into ground and surface water. The resulting water is supposed to meet minimum water quality standards.
Part of Kinross's waste treatment disposal system is an infiltration gallery on National Forest Land (NFL) in the headwaters of Nicholson Creek. They claim to need the NFL because soils on their own land are not extensively thick enough to provide adequate infiltration rates and to prevent seepage of disposal water into surface water.

Mitigation or Lack thereof
Ecology is justifying permit approval on Kinross's promises to provide enough mitigation to offset the impacts of mining that could not be avoided by the proposal.
Kinross is offering to keep the cows out of the water on their own property at the Pine Chee wetland where Bartroff Rd meets the Beaver Canyon Rd. Keeping the cows out is supposed to compensate for the groundwater drawdown at seeps and springs in the headwater of Bolster Ethel and Gold Creeks due to mine dewatering. Our question is how improving their own property improves the public trust?
One of the many springs, seeps, and wetlands in the upper elevations of the Bolster Creek drainage on the west side of Buckhorn Mountain that would be reduced or eliminated.
"The ARMP focuses on preservation and limited enhancement of off-site resources, not on actual compensation for or replacement of lost resources.... Many of the resources proposed are already in existence, and are already protected by existing laws. Since these sites already provide some valuable function to aquatic resources, the additional protection of these resources as proposed in the ARMP provides no real compensation for the impacts from mining operations."
-PCHB statement regarding BMG's mitigation for the proposed Crown Jewel Mine, January 2000

Public Trust Doctrine
Code of Justinian (528 AD)
In the sixth century the Roman Emperor Justinian ordered the codification of imperial legal doctrine. The code spread throughout the Roman Empire and forms the basis for English and U. S. Common Law and spells out The Public Trust Doctrine. It says that the public - no individual, no government, no corporation and no polluter - owns our waterways.
Book II - OF THINGS
I. Divisions of Things
....For some things by the laws of nature are common to all; some are public; some belong to corporate bodies; and some belong to no one. Most things are the property of individuals who acquire them in different ways, as will appear hereafter.
1. By the law of nature these things are common to mankind - the air, running water, the sea, and consequently the shores of the sea. No one therefore, is forbidden to approach the seashore, provided that he respects habitationes, monuments, and buildings which are not, like the sea, subject only to the laws of nations.
2. All rivers and ports are public; hence the right of fishing in a port, or in rivers, is common to all men.
3. The seashore extends as far as the greatest winter flood runs up.

Clean Water Act
U.S. Congress passed the Clean Water Act in 1972. The goal of the law are broad and ambitious: fishable and swimmable waterways and zero discharge of pollution into our rivers, lakes and coastal waters.
The right to clean water is almost universally recognized worldwide. The UN Charter and the legally binding International Covenant on Economic, Social and Cultural Rights recognize the human right to clean water
Water Pollution Prevention and Control Act
Declaration of Goals and Policy
Sec.101 (a) The objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nations waters.
(1) It is the national goal that the discharge of pollutants into navigable waters be eliminated...
(2) It is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provide for recreation in and on the water be achieved...
(3) It is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited