Documents: USFS allowing Canadian company to write their own environmental report

It will be interesting to watch how some of frequent apologists for industry, the agency or certain administrations on this blog explain this one and tell us it’s no big deal.

Documents: Mining company writing own environmental report
Source: https://www.idahostatesman.com/latest-news/article238363753.html
BY KEITH RIDLER ASSOCIATED PRESS
DECEMBER 13, 2019 04:40 PM

Documents show the U.S. Forest Service allowing a Canadian company to write a key environmental report on its proposed open-pit gold mines in central Idaho after the Trump administration became involved.

The documents obtained by conservation group Earthworks show British Columbia-based Midas Gold’s lobbying efforts after initial rebuffs from the Forest Service.

The report, called a biological assessment, would typically be written by the Forest Service or an independent contractor. Its purpose is to examine the potential effect the open-pit mines would have on salmon, steelhead and bull trout protected under the Endangered Species Act.

The assessment could sink Midas Gold’s Stibnite Gold Project if it results in habitat restoration work that makes the mines economically unfeasible.

An internal Forest Service document in February 2018 shows the agency deciding to deny Midas Gold’s request to participate as a non-federal representative in writing the assessment because the massive project would likely harm protected fish. But by October 2018, Midas Gold was not only a participant, it had taken over leading the process and writing the document.

“I think it’s particularly inappropriate for a mining company to be analyzing their own project,” Bonnie Gestring of Earthworks said this week. She obtained the documents as part of a public records request.

Mckinsey Lyon, vice-president of external affairs for Midas Gold, said it’s normal for a company to write the biological assessment for its project, and the company has been holding monthly meetings with federal agencies, state agencies and tribes.

“We will prepare the draft assessment from that collaborative process,” Lyon said. “We are really looking at this to make the process more inclusive and transparent in getting all the voices and input at the table.”

Documents show ongoing lobbying efforts with federal agencies and then a meeting in May 2018 between Midas Gold and Dan Jiron, the U.S. Department of Agriculture’s acting deputy under secretary for natural resources and environment. In November, Midas Gold met with Jim Hubbard, the Agriculture Department’s under secretary for natural resources and environment.

Meanwhile, Forest Service resistance to Midas Gold playing a significant role in writing the biological assessment crumbled, according to Forest Service internal emails, meeting notes and a memorandum.

“And to be clear,” then-Payette National Forest Supervisor Keith Lannom wrote in a short email to colleagues in October 2018, “Midas will have the lead on fish, wildlife and plants ESA (Endangered Species Act) consultation.”

Lannom, who earlier this year became a deputy regional forester based in Montana and no longer oversees Payette National Forest issues, didn’t return a call from The Associated Press.

John Freemuth, an expert on U.S. land policies at Boise State University, said it’s not unusual for companies to lobby whatever administration is in power. But he said having a company get the OK to write its own biological assessment is something he’s never heard of before.

“It looks like there was a lot of political pressure that Midas brought to bear at higher levels,” said Freemuth, who reviewed the documents. “It wouldn’t pass what people call the smell test.”

Midas Gold says the Stibnite Mining District contains more than 4 million ounces (113 million grams) of gold and more than 100 million pounds of antimony. Antimony is used in lead for storage batteries as well as a flame retardant. The U.S. lists antimony as one of 35 mineral commodities critical to the economic and national security of the country. Midas Gold says the mines will directly create an average of 500 jobs for up to 25 years.

Mining in the area about 40 miles (65 kilometers) east of McCall dates back more than a century and has resulted in two open pits, including one that has been blocking a salmon spawning stream since the 1930s. The site also has extensive tailings left from mining operations that are the source of elevated levels of arsenic.

Previous mining companies walked away, leaving cleanup to U.S. taxpayers. The U.S. Environmental Protection Agency has spent about $4 million since the 1990s restoring habitat.

Midas Gold plans additional mining in the two open pits and to create a third open pit. The work would roughly double the size of the disturbed mining area to about 2,000 acres (800 hectares) and eliminate some previous reclamation work.

But Midas Gold’s plan includes cleaning up tailings by capturing gold with new technologies. Ultimately, the company says, it will restore much of the area when mining is finished.

The Nez Perce Tribe has treaty rights to the area and has come out against new mining amid concerns for fish habitat. Below the mining area is about 80 river miles of habitat for spring/summer Chinook salmon, steelhead and bull trout in the South Fork of the Salmon River and its tributary, the East Fork of the South Fork. The Salmon River itself is home to additional federally protected salmon, including endangered sockeye salmon.

The biological assessment will be used to create a draft environmental impact statement expected to be released in early 2020, with a final decision possible later in the year. The U.S. Fish and Wildlife Service, NOAA Fisheries, the U.S. Army Corps of Engineers and the Forest Service will have to sign off on the plan.

Midas Gold officials said the draft biological assessment has not yet been written, but an outline of the document has been created.

Freemuth, the public lands expert, said if the project is approved, a lingering question will be whether land and wildlife managers or political appointees made the decision.

“At the end of the day, people are going to sue if they think that the document is insufficient,” he said. “This will be heavily scrutinized.”

UPDATE (12/23/2019): Foreign Mining Firm Writing Its Own Environmental Report For U.S. Forest Service Loses Round In Court

A Canadian gold-mining company allowed by the Trump administration to write its own assessment of the environmental impact of its proposed project on federal lands has lost a round in court against the Nez Perce tribe in Idaho.

25 thoughts on “Documents: USFS allowing Canadian company to write their own environmental report”

  1. The pattern is clear:
    The agency cannnot complain about lawsuits unless they continually refuse to abide by the laws so they can complain about citizen oversight lawsuits.

    There aren’t many other circumstances where government officials can approve projects in violation of laws, regulations and protocols with no personal nor professional accountability which routinely costs the taxpayers millions of dollars.

    Things would be quite a bit different if recidivist line officers were fined with jail time rather than rewarded with promotions and bonuses for breaking the laws they are obligated to abide the letter and intent of.

    Reply
    • Midas Gold is an interesting project and the approach by the applicant has been similar to other Canadian junior mining firms. The Draft EIS has been released with disclosure of uncertainty but without additional mitigation measures that were proposed by the subject matter experts.

      Reply
  2. Matthew, as much as you would like to present a “gotcha” moment for the apologists, Mr. Freemuth states appropriately that the “lingering question will be whether land and wildlife managers or political appointees made the decision.” When it comes to minerals/energy issues, local and regional FS officials have little to no influence.

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    • So allowing foreign mining companies to write their own environmental report to conduct mining operations on American’s public lands is fine with you, as long as a district ranger or forest supervisor ends up signing the Record of Decision? Do we really want to go down that road and let that Genie out of the bottle concerning America’s public lands legacy?

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      • Matthew, I think the mining genie has been out of the bottle since 1849, or about 171 years. When I ask my Colorado friends why looking at mines on our public lands doesn’t bother them, they say, “because they’ve always been here.” Which is not to say that new mines should be approved.. but many parts of the west have active mining on public lands.

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      • Matthew, you misunderstand my statement. I kept my opinion out of the conversation deliberately (for the record, I disapprove of what this story tells us). I point out that energy-related projects on public land are rarely within the sole discretion of local decision makers, so it may not matter what people think locally because the discretion on what to do has been removed from their control. That is why Mr. Freemuth’s statement is so poignant.

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  3. I don’t see what all of the fuss is about. Who Knows, these foreign industrialists might even do a better job than the “dastardly” US federal agencies that so many people find shortcomings with. Surely you don’t think that the foreign industrial biological assessment would be accepted carte blanche without any review by the BLM/USFS/… Surely the assessment will either be accepted with modifications or rejected out of hand.

    Even if the assessment was accepted without any review, you’d still get to sue if you didn’t like it. Which is no different than if the BLM/USFS/… writes it. If, perchance, you do like their free or cheaper environmental review, then the BLM/USFS/… gets to use our taxpayer money and federal employees to do something that otherwise wouldn’t get done like working to ameliorate some very high risk sites.

    There wouldn’t be any translation costs as anyone can read British-Canadian spelling, eh. So it sounds like a win win for all. Everybody ought to be happy with this innovative solution.

    Signed,
    Gil (50% Canadian)

    Reply
    • Kind of my thought too- private industry can write reports or hire consultants to do it, but the FS has to review it and sign off on it. If it’s done poorly, they typically have to go back to the drawing board. Clearly, a consultant working for the private interest is conflicted and pressed to get it done fast, but it can be corrected.

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  4. Matthew, I don’t see myself as an “apologist for industry or the administration”. I just try to illuminate different sides to a question that are often not explored in today’s news, with both difficulty paying journalists, and funding sources for journalism that have certain limited points of view (on either “side.)”

    So I will argue: (1) yes, political appointees get to make decisions. I attended a court case brought by the State of Wyoming in which I heard the judge say something like “elections have consequences.” Now.. you can say that only some political appointees can make decisions, but not others. But that’s not how the system works.

    (2) This may not be as bad as it looks. My experience is from another time-sucking, lengthy and protracted battle.. the Village at Wolf Creek. A contractor did the NEPA, which isn’t the same, of course as a BO, but hear me out.

    a) it’s easier for Feds to review docs than to write them (it’s always easier to critique something than to do it in the first place). If a company wants to do something, why not use their time instead of federal time? Think of all the useful things the feds could be doing instead of writing a first draft.

    b) if it’s used in a government decision, the FS has to review and approve it. All those emails will be discoverable.. say if they didn’t do what the FS told them to, then the judge will see that pretty clearly.

    If the FS doesn’t review it, that would be illegal and a judge would tell them to start over. The story actually says ” “We will prepare the draft assessment from that collaborative process,” Lyon said. “We are really looking at this to make the process more inclusive and transparent in getting all the voices and input at the table.””

    So… the FS knows that this will probably go to litigation. There may be several cycles, as in some projects I’ve been involved with. But if they’re doing a BO now, chances are that we will be one or two administrations down the road by then.

    I do think that this article’s statement:
    “Mining in the area about 40 miles (65 kilometers) east of McCall dates back more than a century and has resulted in two open pits, including one that has been blocking a salmon spawning stream since the 1930s. The site also has extensive tailings left from mining operations that are the source of elevated levels of arsenic.

    Previous mining companies walked away, leaving cleanup to U.S. taxpayers. The U.S. Environmental Protection Agency has spent about $4 million since the 1990s restoring habitat.”

    It didn’t mention what kind of clean up regs are in place now and whether they are different from those 100 or so years ago. If we still don’t have those regs in place… well that would be a problem.

    Reply
    • Sharon – there is validity in having input from an applicant on a project, particularly complex ones such as Midas Gold. While the history of mining on public lands goes back centuries, the clean up and the reclamation of sites is a bit more nuanced. How many mines that were developed since the 1950’s have been successfully closed and reclaimed? Cripple Creek mine near Leadville, Questa mine in New Mexico and others are still not closed and it has been some time since there was active mining at the site.
      The question for me is if the mining company conducts the analysis, as is done in Canada, does the agency review and approve the analysis and if so, is there staff with time and qualifications for conducting the review?

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      • That’s a great question, Leslie and I do not know the answers for sure. It’s still a federal decision and in my experience the agency still have to review and approve the analysis.

        My own experience with the minerals folks in the Forest Service (the national office was down the hall from me in R-2) is that they were top-notch and if they didn’t know they would know people who did in other agencies (MSHA, EPA and others whose acronyms I don’t remember).

        At the same time, if you look at it pragmatically, I’d guess all mines on federal land will be litigated. So all the analysis will be gone over with a fine tooth comb in litigation. I’ve even seen judges weigh in on technical details of analysis.

        So if I looked at it, I’d say there’s 1) what the mining proponents know 2) what the feds know and 3) what comes out in court. You are going to get all three, no matter whether you start with the feds analyzing it or the proponents.

        And it’s much easier to review an outside document (go back and do this!) than to write it from scratch. So I like the idea that our folks will spend their time on critiquing, not generating.

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        • Sharon,
          From the applicants side, there is always pressure from investors to complete the permitting stage as quickly as possible. The federal mineral folks (both BLM and Forest Service) I have worked with have all been great and technically very savvy. In terms of capabilities to me it is more of a question about staff time to validating water quality modeling, or familiarity with construction methods such as soil nail retaining walls, or different types of geosynthetic liners. It isn’t that there are not federal agency staff who understand those aspects or find people in other agency’s that do, but that takes time. The Midas Gold project is pretty complex, with some interesting modeling on water quality, air, and reclamation.
          I agree it can be easier to review a document than generate the analysis. Perhaps the question is not what does the mining proponent know, but what do they believe about the potential effects and the duration of those effects. That could influence what is disclosed in a NEPA document or the document provided to the agency. My experience is the mining companies is that those that have been through a court case or two have a better understanding of the process and the risks.
          To me it is not about more information, but often clearer information with a better understanding of CFRs definitions of adaptive management, or Land and Resource Management Plan definitions of restoration. Clear Plans of Operations about what the applicant is proposing to do, where, and when are helpful in the process.
          In terms of litigation, if the mining project is on public lands, or even private lands there is potential for litigation (Flathead citizens for quality growth Inc. vs Flathead County Board of Adjustments; Montana Supreme Court Opinion).

          Reply
          • Thanks, Leslie! It sounds like you have direct experience. I think it’s important, as you are saying, for the feds to have real experts in all these complicated areas. My only point as a person who tried to access these experts and was in a long line, had to beg, and so on…that I’d rather they spend their available time reviewing rather than writing.
            The real question to me is “does the federal government have people who have the knowledge, are we treating them right and allowing them to do continuing education and so on?” if they don’t know, they don’t know and it doesn’t matter if they write or review.

            Reply
  5. We discussed contractor NEPA for a Colville project lawsuit here (including the earlier link):
    https://forestpolicypub.com/2017/08/11/forest-service-wins-a-to-z/

    “Biological assessment” is a term for the report the Forest Service develops about effects on at-risk species. The effects on listed species are sent to the ESA consulting agencies who prepare a “biological opinion” (BO). So I don’t see the BA as much different from a NEPA document (I think they are often mixed together).

    I would pay more attention to this statement by Freemuth: “At the end of the day, people are going to sue if they think that the document is insufficient,” he said. “This will be heavily scrutinized.”

    There’s a current lawsuit alleging water pollution from existing operations:
    https://forestpolicypub.com/2019/08/21/nfs-litigation-weekly-august-21-2019/

    Reply
    • I’d bet that they are going to sue whether or not the document is “sufficient”, if the decision is to go ahead with the mine.

      Reply
    • a BA is for listed species, a Biological Evaluation is for FS Sensitive species, which is a list of at-risk species that are considered and protected in order to prevent their listing.

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  6. This rather routinely happens, in my experience. The Forest Service doesn’t have the resources to do all of this analysis, so we’d have the applicant do it under our complete supervision and review. They would usually hire a contractor to do the work, but we would review and approve the analysis, and of course the line officer has the responsibility for the analysis and decision. It does look kinda crazy from outside, but that’s how it’s often done, with full public review as well.

    Reply
  7. UPDATE (12/23/2019)

    Foreign Mining Firm Writing Its Own Environmental Report For U.S. Forest Service Loses Round In Court

    A Canadian gold-mining company allowed by the Trump administration to write its own assessment of the environmental impact of its proposed project on federal lands has lost a round in court against the Nez Perce tribe in Idaho.

    U.S. District Court Judge Barry Lynn Winmill denied a motion from Midas Gold to dismiss the tribe’s lawsuit.

    The tribe sued the British Columbia company in August, saying it violated the Clean Water Act by failing to stop the discharge of pollutants, including arsenic, cyanide and mercury, from gold mines into tributaries of the Salmon River, threatening fish populations important to the Nez Perce.

    “As the tribe has repeatedly stated, Midas Gold’s failure to address unlawful pollution discharges” in Payette National Forest in central Idaho is “harming the tribe and the people of Idaho,” Tribal Chairman Shannon Wheeler said in a statement.

    The mining site is within the tribe’s aboriginal territory, where Nez Perce fishing, hunting and pasturing rights are ensured by an1855 treaty with the U.S. government.

    The area had previously been mined by various companies over decades. Midas Gold, which now owns or controls much of the site, is seeking permits to reopen mining and expand operations as part of its Stibnite Mining Project, and is carrying out exploratory drilling.

    Pollution occurring “regularly or continuously for at least the last five years,” is “ongoing now, and will continue into the future, unless the Court grants relief as requested,” the lawsuit states.

    Despite the claims, the U.S. Forest Service last year stepped aside to allow the company to take control of an assessment analyzing the impact of its own mining proposal, according to documents obtained by the nonprofit conservation organization Earthworks.

    Such an assessment is supposed to be written by the Forest Service or an independent contractor without a vested interest in conclusions, according to the group.

    “It’s particularly inappropriate for a mining company to be analyzing their own project,” said Connie Gestring of Earthworks.

    Documents show that initially strong resistance by the Forest Service to the project and involvement by Midas Gold in the assessment process began to crumble amid lobbying pressure within a receptive Trump administration. Midas Gold was eventually designated to take the lead in in creating the environmental impact report.

    “To be clear, Midas will have the lead on fish, wildlife and plants ESA [Endangered Species Act] consultation,” Keith Lannom, then supervisor of the Payette National Forest, declared to his staff late last year in an email obtained by Earthworks.

    Lobbying by companies is expected in such cases, John Freemuth, a land policy expert at Boise State University, told The Associated Press. But he has never before heard of a company being allowed to write a biological assessment analyzing its own operation.

    Mckinsey Lyon, vice president of external affairs for Midas Gold, insisted to AP that the company’s role is normal.

    The report hasn’t been completed. A decision on the Midas Gold operation will be made in 2020.

    The Environmental Protection Agency has spent some $4 million restoring habitat in the Payette National Forest after open-pit mines were abandoned by other companies, according to AP.

    Reply
  8. My guess is that there are just a handful of Forest Service people who would be considered to be qualified to even attempt such a task. Who in the Forest Service has actual experience in modern gold mining work?

    (I’m not a fan of this risky kind of mining)

    Reply
    • Larry,
      There are a number of very well qualified people at the Forest Service, NFMS, NOAA, and FWS for the analysis. In terms of the proposed mine, it is an open pit operation. I have worked with a number of Forest Service staff with experience evaluating modern gold and other open pit mine operations.

      Reply
  9. This concerns me: “The Draft EIS has been released with disclosure of uncertainty but without additional mitigation measures that were proposed by the subject matter experts.” While it may make sense to hire outside experts to conduct effects analysis, the range of alternatives to consider should be within the purview of the agency (potentially subject to feasibility limitations). The reasons for rejecting mitigation measures could be interesting.

    There is also a new lawsuit by the mining company against the Forest Service related to existing pollution on the site: “This action was a necessary step to protect Midas Gold from being held responsible for alleged water pollution from lands owned and managed by the U.S. Forest Service,” https://scnow.com/business/canadian-mining-company-sues-us-over-idaho-water-pollution/article_d5001ee8-f3f3-5ccd-937e-1574c045d1aa.html

    Reply
    • Jon,
      The mitigation measures were not rejected, however the Forest Service decided to not include them in the Draft EIS. The Forest Service did approve the range of alternatives considered based on meeting purpose and need, environmental advantage, technical and economic feasibility.

      Thanks for posting the link on the lawsuit.

      Reply
      • I guess I would say that a decision to “not include them” means they were rejected. While there can be what I would call semantical debates about whether mitigation is a part of an alternative or it’s something else, the bottom line for a final decision under the Administrative Procedure Act would be whether the decision to not include them was arbitrary, and the rationale for that decision would need to be documented in the administrative record.

        Reply

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