Action Alerts

September 15, 2008 Stephanie Connolly Field Manager Cottonwood Field Office 1 Butte Drive Cottonwood, ID 83522-5200

RE: Buffalo Gulch Mine Scoping Letter, sent via e-mail and US mail

Dear Field Manager Connolly, The following scoping comments are from the Friends of the Clearwater, Idaho Conservation League, Earthworks, Western Watersheds Project, Idaho Rivers United, the Lands Council, WildWest Institute, Alliance for the Wild Rockies, and Trout Unlimited on the Buffalo Gulch Mining Project. We have several serious concerns with this project. We reserve the right to submit additional comments as new information develops. Please send a hardcopy as well as a computer disk (CD) of the Draft and Final EISs to these groups, as well as to the attorneys at the Western Mining Action Project (P.O. Box 349 Lyons, CO 80540).

At the outset it must be stressed that, due to the length of time since the submittal of the Plan of Operations (PoO) in 1989, BLM is conducting its NEPA review based on an outdated proposal. We are concerned that the project will be substantially revised during this NEPA process, which would improperly restrict the public’s rights under NEPA. Thus, as a threshold matter, BLM should require the submittal of a new PoO as it is developed for the purposes of its NEPA, FLPMA, and other reviews.

NEPA and FLPMA Analysis

In order to prevent unnecessary or undue degradation as required by the Federal Land Policy and Management Act (FLPMA), to preserve the habitat of threatened and endangered species and to comply with the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), the Magnuson-Stevens Fishery Management and Conservation Act (MSA), the Data Quality Act (DQA), and the National Wild and Scenic Rivers Act, the BLM is required to determine and disclose the site specific, project level impacts of the proposed mining operation, determine whether the plan of operation satisfies these laws, and review the mining operation’s reclamation plan to determine if it is ecologically sound, feasible, and if the mining interests have the financial resources available to carry out the land and water reclamation and to deal with potential environmentally catastrophic events such as spills and releases of mine tailings into waters of the United States and underlying groundwater formations.

One major factor in that determination will be the extent to which all impacts, including cumulative impacts under NEPA and cumulative effects under ESA and MSA, are properly assessed. Several projects are planned and/or approved for the upper South Fork drainage such as Crooked American, Whiskey South, and Eastside Township. The cumulative impacts of those need to be addressed. The cumulative impacts in NEPA and cumulative effects in ESA and MSA of future mine expansion and related development need to be addressed as well. The claim holding is far larger than the project area. We discuss many of these specific concerns in the sections below.

The presentation by the EIS contractor and subsequent discussion during the Elk City, Idaho meeting of August 28, 2008, raises some important NEPA concerns. The contractor noted the BLM could not adopt the no-action alternative in the record of decision (ROD) but suggested various permits could be denied. This may have confused people into believing that the mine was inevitable or that BLM had to approve the mine in the ROD. BLM can say no to a mine in a ROD. Indeed, the federal courts have stated that: FLPMA, by its plain terms, vests the Secretary of the Interior with the authority-and indeed the obligation-to disapprove of an otherwise permissible mining operation because the operation, though necessary for mining, would unduly harm or degrade the public land. Mineral Policy Center v. Norton, 292 F.Supp.2d 30, 42 (D.D.C. 2003).

In addition to the duty to "prevent undue degradation," FLPMA also requires that all mining operations to be in compliance with the RMP, which BLM must assure in this case. BLM must consider a range of alternatives. Given the obvious negative impacts of cyanide heap leach mining, options to that method of extraction must be fully analyzed. See "Cyanide Uncertainties-Observations on the Chemistry, Toxicity and Analysis of Cyanide in Mining Related Waters", by Robert Moran, Ph.D, Mineral Policy Center Issue Paper No. 1. (1998). If no economical or practical options to that method of mining are possible, then it raises the question of whether this is truly a valuable deposit that meets the validity requirements of federal law. The BLM needs to also balance the predicted benefits of the mine operations against the potential environmental risks and costs to the public trust natural resources under FLPMA.

Water Quality/Fisheries/Aquatic Issues

Experience with the HECLA mine within the Yankee Fork Salmon River Watershed has been instructive and problematic regarding cyanide heap leach mining. That mine was supposed to be state of the art. Apparently, the operation leaked from the very beginning. The high elevation presented problems with water accumulation. In order for the analysis to be accurate, to meet FLPMA’s requirements of preventing unnecessary or undue degradation, to meet the Clean Water Act (CWA) and its antidegradation standards, and to meet the ESA and the MSA for listed species, designated critical habitats, Essential Fish Habitat (EFH), and the recovery standards for listed species several things must occur. HECLA had to obtain a National Pollution Discharge Elimination System (NPDES) permit under the CWA and devised a method of using the larger volumes of water in the discharge stream to dilute the concentrations of its waste stream to meet Idaho surface water quality standards.

So much pollution is discharged from the HECLA Grouse Creek mine, even after water treatment that the discharge pipe could not be adjacent or tributary to the receiving stream, but rather the discharge is in the middle of a channel from a buried wastewater pipeline. This "solution to pollution is dilution" approach to attempting to comply with the CWA and state water quality standards does not address total loadings or bioaccumulations of pollutants on a daily, annual, or for the life of the mine (i.e., construction, operation, and post-operation or closure phases), nor the acute and chronic effects such loadings of heavy metals, acids, and other pollutants have on resident and anadromous fishes and their aquatic prey items.

Pollution from the Blackbird Mine Site was so severe in the Panther Creek Watershed of the Upper Salmon River Basin as to form a chemical barrier to fish migrations several miles downstream from the mine outfalls, and according to NOAA’s National Marine Fisheries Service, led to the extinction of the Panther Creek population of threatened Snake River spring/summer Chinook salmon. There needs to be complete understanding of the groundwater, surface water, and the hydrology of the area. We understand some kind of a baseline groundwater monitoring network will be established. While that is positive, it must be thorough enough to assess water quality impacts on both ground and surface water. Under Idaho law, it is recognized that surface water and ground water are hydrologically connected. American Falls Reservoir District # 2 v. Idaho Department of Water Resources, 142 Idaho 862, 155 P.3d 157 (2007).

Water balance needs to be better understood. In the case of the HECLA Grouse Creek mine, unanticipated amounts of water threatened to overtop the wastewater holding ponds. There needs to be a complete understanding of evapo-transpiration on this project before analysis and approval. This is particularly important because on the field trip the mine’s proponent seemed to suggest the area has about equal precipitation and evapo-transpiration potential. Most areas where evaporation potential equals precipitation are not forested; rather they are rangelands far drier than Elk City. The underground geology needs to be thoroughly analyzed under the best available science. The leak detection system, including the foundation beneath the liners, needs to be thoroughly tested. Leakage must not be allowed to occur.

Earthquakes do occur in the area. It is critical to test the integrity of the system by simulating a quake of the maximum likely magnitude. It is essential that the liners remain intact under the conditions of such an event. Again, state of the art cyanide heap leach mines leak as the one in Yankee Fork does. (NOTE: It should be remembered that the HECLA Grouse Creek mine in the Yankee Fork Salmon River watershed was the same late 80s early 90s vintage as when this one was first proposed) There is a north trending fault mapped on the Geologic Map of Idaho. This fault is possibly associated with the gold deposit, and there is possibility a concentration of other minerals that could be harmful to humans, fish, wildlife and/or plants. We are particularly concerned about impacts to the quality and quantity of domestic water supplies of property owners downstream of the mine in the Buffalo Gulch drainage.

The proponent explained on the field trip that the mineralized zone contained a number of layers that dipped to the east toward Buffalo Gulch. If this is the case, the topographic and hydrological divides may be different. Surface water that infiltrates to the west of the topographic divide may hit a relatively impermeable layer and flow along it to the east into the Buffalo Gulch drainage. Although a large number of test holes have been drilled to identify, sample and test geologic materials beneath the proposed project, the holes are all vertical. Angle drilling across the fault plane is needed in order to understand the nature of the fault plane. Permeability tests are needed along the fault plane. Because of fault zones' potential to transmit rapid rates of water, there is critical need for an adequate assessment of the ground water and surface water at the project site and vicinity. Determinations such as the depth to the water table, the direction of ground-water movement and the rate of ground-water movement are some of the needs.

The chemistry of the overburden, as well as the ore, should be determined. If toxic or otherwise harmful elements are present, this could have a bearing on the appropriate operation of the project. Considerable attention needs to be given to increased sediment yield to Maurice Creek, Buffalo Gulch Creek and the South Fork Clearwater River. The waste dumps will be highly erodible because of the high silt content and steep slopes. The sediment control berms will need to have large storage capacities or will have to be cleaned out periodically to avoid depletion of storage capacity, overtopping and breaching. The sediment control berm design appears to be highly inadequate. The Plan of Operation (PoO) indicates no emergency spillways for these structures. Such spillways are necessary to prevent overtopping and breaching in case of a runoff event which exceeds the design runoff. If breaching occurs, large volumes of sediment will reach habitats for threatened/endangered/sensitive species fish and other species of special concern.

Is there enough overburden to cap the leach pads and waste rock piles once it is completed? If not, what will be the contingency plan? On the field trip it was suggested the pit would fill with water and there would be no capping of the mine. Is this really the best method? The proponent should pursue an NPDES permit for the discharge of water from the pit. Sound, peer-reviewed science is required under the Data Quality Act and not just stale solutions from dated references and resources. BLM must ensure that all water associated with the Project, including any water that may accumulate, move through, or be released/discharged from the mine pit, waste piles and other facilities, comply with all state and federal water quality standards and requirements. A recent peer-reviewed study (Kuipers and Maest 2006) examined water quality predictions compared to water quality impacts at modern metal mines across the west. The report found that 76% of the mines studied exceeded water quality standards, even though no impacts were predicted during the permitting process.

Extensive geo-chemical analysis and modeling should be done to help predict water quality impacts. Geochemical analysis should incorporate the recommendations outlined in the following reports: "Predicting Water Quality at Hardrock Mines" and "Comparison of Predicted and Actual Water Quality at Hardrock Mines" available at www.mine-aid.org. Furthermore, all exceedances during model runs should be noted as violations of state and federal water quality standards. The BLM should not just report averages. In many cases, one exceedance of a numeric standard may prove lethal to a life stage of ESA/MSA listed salmonids and may be not noticed if lost in the statistics of daily and weekly averages often found in ecological modeling. In addition, metal concentrations in levels far below lethal limits may still have adverse impacts on the olfactory senses and migratory abilities of anadromous fish. The BLM should account for this possibility in the analysis. Modeling in conjunction with monitoring noted above must be done in the draft EIS. Idaho law and EPA regulations require that no further degradation occur in the South Fork drainage. The BLM is prohibited by the CWA (section 313) from permitting any activity that may violate water quality standards and requirements. Further, BLM cannot authorize perpetual treatment, as that would violate BLM’s duty to require full and complete reclamation under FLPMA and other federal law.

Under the CWA, a new point source discharge affecting a parameter associated with the 303(d) listing is prohibited. The South Fork is a 303(d) stream as is Buffalo Gulch. This nondegradation standard applies since any new discharge affecting these parameters would by definition violate the requirement that: "existing instream water uses and the level of water necessary to protect the existing uses shall be maintained and protected." (40 CFR 131.12(a)(1)). (NOTE: this antidegradation standard means that no degradation will occur--not some degradation can occur as long as the beneficial uses are protected and standards are met. See, PUD No. 1 of Jefferson County v. Washington Department of Ecology, 114 S.Ct 1900(1994)). BLM cannot allow discharges into an impaired water since such discharges may "cause or contribute" to a water quality violation. 40 CFR §122.4(i). See also IDAPA 58.01.02.054.04. Federal courts have prohibited the issuance of any new NPDES permit "until all necessary TMDLs are established for a particular WQLS [water quality limited stream]." Friends of the Wild Swan, Inc. v. U.S. EPA, 130 F. Supp.2d 1199, 1203 (D. Mont. 1999)(emphasis added), affirmed in relevant part, 74 Fed. Appx. 718: 2003 WL 21751849 (9th Cir. 2003).

As the Ninth Circuit has stated:

Prohibition on Permit Issuance Until All TMDLs are Established

Appellants argue that the district court's order prohibiting new permits or increases in permitted discharges until all necessary TMDLs are established for particular WQLSs interferes with the regulatory scheme, which does not require a complete ban on discharges in violation of state water quality standards. See Arkansas v. Oklahoma, 503 U.S. 91, 108, 112 S.Ct. 1046, 117 L.Ed. 239 (1992). The district court's order, however, does not impose a complete ban but only restricts the issuance of new permits or increased discharges for WQLSs, which are already in violation of state water quality standard. This comports with the regulatory requirement precluding issuance of new permits for new sources that will cause or contribute to a violation of water quality standards. See 40 C.F.R. § 122.4(i). Friends of the Wild Swan, Inc. v. U.S. EPA, 74 Fed. Appx. 718: 2003 WL 21751849 (9th Cir. 2003). Thus, until the TMDL is established, no new discharges of copper, sediment, or low (or high) pH are allowed. The Ninth Circuit recently rejected the EPA’s and the mining industry’s argument that new discharges could be allowed in an impaired water. Friends of Pinto Creek v. EPA, 504 F.3d 1007 (9th Cir. 2007). The federal court in Hells Canyon specifically held that the Forest Service violated the CWA when it approved mining operations with discharges into impaired waters. This court cannot find support in the record for the Forest Service's position that implementation of the requirements to the PoOs as outlined in Alternative 4 of the ROD will protect water quality and result in no measurable increase in sedimentation. This court finds the Forest Service's decision to allow new mining operations on § 303(d)-listed streams arbitrary and capricious. Hells Canyon Preservation Council v. Haines, 2006 WL 2252554, *5 (D. Or. 2006). Since Buffalo Gulch and South Fork are listed as impaired surface waters, the BLM, IDEQ, and EPA should be examining total maximum daily loads (TMDLs) of all potential contaminants and not just concentrations as required by State Water Quality Standards. Examples that may be limiting to salmonid spawning and coldwater biota designated uses include: water temperatures, siltation, turbidity, pH, heavy metals, other toxics, and nitrates Under Idaho State Water Quality Standards and the Federal CWA, there are in addition to numeric criteria other water quality standards referred to as "narrative" standards that often refer back to Common Law and the legal idea of Nuisance. Examples of narrative standards that must also be addressed by the EIS and met by the mine’s operation, post-operation, and closure phases are: streams must be free of nuisance algal growth; streams must be free of noxious odors, tastes, and discoloring.

The BLM’s EIS and ESA/MSA consultations have failed to address the narrative water quality standards applicable to Idaho streams, springs, and rivers as well as waters of the United States. Additionally, case law, which would apply to BLM as it does to its sister agency the US Forest Service, states the agency cannot approve the project before the information and data necessary for NPDES permits have been obtained. See Dubois v. U.S. Dept. of Agriculture, 102 F3d 1273 (1st Cir. 1996). Furthermore, the BLM cannot meet its duty under the mining regulations to ensure that the project will comply with the CWA without an understanding of the specific nature of the discharges. The Court in Dubois also ruled, "the Forest Service was obligated to assure itself that an NPDES permit was obtained before permitting the [requested activity]." 102 F.3d at 1300. In addition, BLM cannot approve a PoO until it has received the CWA Section 401 certification from the State of Idaho. See Hells Canyon, 2006 WL 2252554, at *3-4. This issues of the NPDES permit, state permits and other permits need to be evaluated in a revision of the DEIS (and final EIS) and the BLM needs to better clarify the process. The discussion during the field trip and public meeting in Elk City on Thursday, August 28, suggested that the permitting processes would follow the final EIS and Record of Decision (ROD). That seems to conflict with the findings of the court in Dubois cited above. Listed fish species are found in the area. These include the Snake River Basin steelhead and bull trout. Westslope cutthroat trout threatened Snake River spring/summer Chinook salmon, and the Pacific lamprey are also species of great concern. As such, under section 7 of the ESA, consultation for listed species (Snake River Basin steelhead, Snake River spring/summer Chinook salmon, and bull trout) must occur. In addition, cumulative impacts to listed fish species downstream (threatened Snake River fall Chinook salmon) must also be considered in the section 7 ESA consultations. Questions of jeopardy and incidental take must be answered by the BLM and the Services (US Fish and Wildlife Service and NMFS). There is also designated critical habitat for Snake River Basin steelhead, Snake River spring/summer Chinook salmon, and Snake River fall Chinook salmon that need to be judged for the potential of adverse modification and adverse effects (and any "adverse modification" of critical habitat must be prevented under the ESA).

Under MSA, current, potential, and likely future effects to Chinook salmon EFH must be also be examined for adverse modification and adverse effects. Additionally, as a Federal agency, the BLM is charged under ESA to help in the recovery of listed species including Snake River Basin steelhead, bull trout, Snake River spring/summer Chinook salmon, and Snake River fall Chinook salmon. Issuing the permits and allowing this mine to operate may violate the section 7(a)(1) responsibilities that the BLM has under ESA. Pacific lamprey are being considered by the U.S. Fish and Wildlife Service for listing protection under ESA, while Westslope cutthroat trout are considered regionally sensitive species, and for both the BLM should not be making irretrievable and irreversible actions and expenditures, such as permitting the mine, they may lead to these fishes endangerment and possible extinction. The agency's duties under the ESA and MSA are not overridden by any "rights" the applicants may have under the General Mining Act of 1872 (known as the "1872 Mining Law)." The courts are clear in ruling that prohibitions under the ESA must be enforced, even to deny mining operation and: "of course", the BLM "would have the authority to deny any unreasonable plan of operations or plan otherwise prohibited by law. E.g., 16 U.S.C. 1538 (endangered species located at the mine site)." The BLM "would return the plan to the claimant with reasons for disapproval and request submission of a new plan to meet the environmental concerns." Havasupai Tribe v. U.S., 752 F.Supp. 1471, 1492 (D. Az. 1990) affirmed 943 F2d 32 (9th Cir. 1991) cert. denied 503 U.S. 959 (1992). See also Pacific Rivers Council v. Thomas, 873 F.Supp. 365 (D. Idaho 1995): Pacific Rivers Council v Thomas, 30 F.3d 1050 (9th Cir 1994) cert. denied 115 S.Ct. 1793 (1995)).

The BLM’s powers of denial would also likewise apply to the proposed mine’s closure and land and water reclamation plans, if deemed inadequate. The cumulative impacts of this mine upon water use and allocation need to be assessed. BLM must verify that (and analyze) that the Project applicant has received all the necessary water rights for the project. BLM cannot approve a PoO without such verification. Far West Exploration, 100 IBLA 306, 309 (1988). Will groundwater for municipal use be contaminated? How will this affect the agreement between Idaho, the US Government and the Nez Perce Tribe on the Snake River Basin Adjudication (SRBA)? These questions are crucial for local residents who are rightly concerned about their drinking water as well as their property values, property rights and general health and happiness. These questions are also crucial as the 1855 treaty between the Nez Perce Tribe, a sovereign nation, and US government predates and supercedes the general mining laws.

The cumulative impacts on water quality must take into consideration the economic investment, recreation, and treaty rights associated with the South Fork. The Nez Perce Tribe, US Forest Service, BLM, and Idaho Fish and Game have spent millions on restoration of the South Fork watershed. The BLM must also fully review (under NEPA and related laws) and protect (as an independent duty as well as under FLPMA), federal reserved water rights in the springs, waterholes and related waters and lands that will be affected by the Project. This includes the water and lands protected by Public Water Reserve #107. Executive Order of Apr. 17, 1926, previously codified at 43 C.F.R. § 292.1 (1938). See also GENERAL LAND OFFICE, DEPARTMENT OF INTERIOR, CIRCULAR 1066, 51 I.D. 457-58 (1926). PWR creates a federal reserved water right in water flows that must be maintained to protect public watering uses. U.S. v. State of Idaho, 959 P.2d 449, 453 (Idaho 1998) cert. denied Idaho v. U.S., 526 U.S. 1012 (1999); Cappaert v. United States, 426 U.S. 128, 145 (1976). Under this Executive Order, and related duties under FLPMA and related public land laws, the agencies cannot authorize activities that will impair the public use of any of those reserved waters. In addition, the scoping notice is silent as to whether the Project will disturb public lands withdrawn by the 1926 Executive Order. Lands withdrawn by the 1926 Executive Order are withdrawn from the filing of mining claims under the federal mining laws, including the Mining Law of 1872, 30 U.S.C. § § 21-47. With some limited exceptions, the BLM cannot approve a mining operation on withdrawn lands unless the claims proposed for use were filed before the date of the Executive Order or if the claims are for metalliferous minerals.

If the Project will disturb withdrawn lands that were not claimed prior to the 1926 Executive Order, or were subsequently claimed, but not for metalliferous minerals, the BLM cannot approve the operation. Further, any such lands that may have been claimed for minerals, but do not actually contain a valuable mineral deposit of metalliferous minerals, are withdrawn and cannot be developed. Overall, the NEPA documents must fully review the past, present, and reasonably foreseeable impacts on all of these species and their protected habitats (designated critical habitat and EFH), including BLM species of concern. The eventual agency decision must be based on protection and recovery of species under the ESA, MSA, CWA, FLPMA and agency regulations and policies. All of this information is crucial because cyanide heap leach mining poses serious risks. It has been banned in Montana because of the risks to water quality. Heavy metal contamination, acid runoff, oxidation, and cyanide poisoning are all legacies of mining, including recent mining activity, on public lands.

Terrestrial Wildlife

Aside from concerns over riparian/aquatic species and habitat, the issue of access and terrestrial species needs to be addressed with the pad, pit and other construction. Also, the impacts of improving roads in the area should be addressed. These include ESA concerns for the threatened Canada lynx and gray wolf. If cyanide were to leak into a stream from a spill, it would have devastating impacts on aquatic and terrestrial wildlife. For example, any mammal that drank from the streams could be killed. In addition, the mine site itself poses a hazard to wildlife. Fences to keep out wildlife may be necessary though they would have impacts on movement of larger species, which should be an issue for analysis in the EIS. Since the area receives a lot of snow, the height of the fence and the ability of the fence to withstand treefall need to be considered. The impacts on waterfowl and other birds need to be assessed as well. There may also be risks to human health particularly to outdoor enthusiasts that hike, camp, drink, wade, fish, and hunt in the area and downstream regions. Cyanide (and heavy metals associated with the mine and ore processing) may contaminate fish and game that may be consumed by humans.

Transportation

The cumulative impacts of transportation issues need to be addressed. How and by what routes will the cyanide and other toxic materials be shipped? Highway 14 is very winding and any accident of a vehicle hauling cyanide that dumped material into the South Fork could be catastrophic for the entire Clearwater River below the spill. Also, the routes that are chosen for transportation are also of concern. Will Highway 12 be the route taken for cyanide shipments? If so, will it come from Missoula or Lewiston? If Missoula, the issue of truck safety is also important. There have been two toxic spills recently on Highway 12, one in the Lochsa and the other in the Middle Fork Clearwater. Highway 12 from Lewiston could also present problems if the route taken is goes then to 95 up Lapwai Creek. This is also a winding road that could present hazards. These streams contain ESA/MSA-listed aquatic species as well as Designated Critical Habitat and EFH. In addition to the PoO, closure and reclamation plans, the mine needs to have emergency spill response plans including training and having the necessary equipment to respond to a spill or accidental release during any season of the year in difficult conditions posed by Idaho river canyon routes. Bonding for clean-ups associated with spills, releases, and clean-ups need to be required. How cyanide is stored during transportation and on-site are also important issues. Improper storage could result in water, wildlife or air quality problems. The amount of transportation this mine generates is also an issue. How many more vehicles will be using various transportation routes to service mine activities including workers at the mine? What type of training will the drivers receive?

The BLM should consider requiring pilot cars and two drivers in every vehicle. What are the cumulative impacts of those trips? What are the impacts of supposed minimal upgrading of the road to the mine? What about increased dust from transportation? Increased sedimentation to adjacent streams will potentially jeopardize populations of ESA and MSA listed salmonids, adversely modify their designated critical habitats and EFH, and retard their conservation and recovery. We are concerned that the roadway will not be able to sustain the estimated volume of traffic and that the county will not be able to adequately maintain the roadway. The DEIS should analyze the costs of upgrading and maintaining the road system to support the predicted increases in traffic. The DEIS should disclose the number of landslides, rockfalls, avalanches, fatalities, and other traffic accidents that have occurred along the transportation route in the last decade. This report should include the number of single-vehicle accidents, the number of multiple vehicle accidents, the number of vehicles leaving the road surface, and the number of vehicles entering the stream or river below. The percentage of alcohol or drug-related accidents should be disclosed. For each mile along the entire transportation route, the DEIS needs to analyze the threats to public health and the environment from a spill of hazardous or toxic materials. This analysis should be based on worst-case scenarios of multiple vehicles carrying full loads of hazardous materials and low stream volumes. The BLM should require an approved Transportation Plan as part of this process. The BLM should place a limit on both the total number of shipments and the number of shipments per month. By comparison, the FEIS for the Golden Hand mine on the Payette National Forest required that American Independence Mines and Minerals (AIMM) transport fuel in Department of Transportation-approved tanks at quantities not to exceed 250 gallons. We are concerned about large quantities of chemicals being transported at once because an accident could release large amounts of hazardous materials. The BLM should allow for the minimal amount of chemicals necessary for that month’s operations. If chemicals are transported and utilized as needed throughout the process, there will be a smaller stockpile on site if operations are suspended for some reason. If operations are suspended unexpectedly, there will also be a smaller stockpile to transport back out through the transportation corridor for reclamation. The operator should provide the BLM with monthly reports on chemical usage so that the allowable amounts of materials can be further refined for future operations. The BLM needs to further define the quantities of materials that can be transported on a monthly basis. The DEIS also needs to describe the distance to off site waste treatment, storage, and disposal facilities. The BLM should provide restrictions for which chemicals can be stored next to each other and transported together in the same vehicle. The DEIS should also specify the types of vehicles to be used (tanker truck, pickup, truck, airplane, etc) and the operating standards for these vehicles.

Specifically, the BLM should require regular vehicle inspections to ensure that brakes, lights, and seatbelts are functioning properly. Only inspected vehicles should be allowed to transport certain chemicals. Chemical containers need to be rated to withstand impacts, pressure, and extreme temperature gradations. For example, if there were a vehicle fire next to a river, a container could become super-heated and then roll into the cold river. The differential expansion and contraction in the lid and body of the container could result in a catastrophic leak. The transportation route should be examined to locate particularly hazardous areas that could be improved through guardrails, lower speed limits, additional turnouts, or other road improvements. A Spill Prevention, Containment, and Countermeasures plan should be required given the sensitive nature of this watershed. This plan would require that each vehicle is equipped with all necessary equipment for spill containment and countermeasures and that all drivers are trained and tested in rapid response. Fuel containment equipment, including chemical absorbers and booms to intercept stream transport need to be on site. Regularly inspected fire extinguishers need to be placed in all vehicles. In case of a vehicle fire, each vehicle should be required to contain a Pulaski axe, fire rake, McLeod fire tool, fire flag, and shovel.

Power Supply

Because of potential air and water quality impacts from the transportation, storage and combustion of diesel fuel needed for mining operations, the BLM should develop an alternative that dramatically decreases the need for large quantities of diesel fuel. Although the trucks at the mine site would still require diesel fuel, other facilities could be powered through this system. The BLM should examine what percentage of the mine’s power needs could be provided by a powerline system. Of course back-up diesel generators would still be required for all safety systems. A powerline would also help reduce the amount of diesel exhaust blowing over Elk City, reduce the noise of generators, and reduce the risk for small diesel leaks at each generator. A powerline would also reduce the number of diesel fuel trips along the South Fork of the Clearwater River. This reduction would lessen the risks for traffic accidents during busy summer months when the road is busiest.

Air Quality

Air quality is a concern with cyanide, off gassing, and with wind blowing on waste material. The DEIS needs to assess this potential impact especially since the proposed mine is situated on top of a windy ridge. Elk City residents are downwind. NEPA and the Clean Air Act require BLM to fully analyze all air quality impacts – not only for hazardous emissions such as cyanide, but also for criteria and other pollutants such as PM2.5 and PM10.

Noise

We are concerned about the noise from mine operations on Elk City residents and visitors, wildlife, and recreationists. The DEIS needs to describe the volume (decibels) and regularity of noise from mining and transportation activities and analyze how local resident, campers, and visitors in the area will be affected. This analysis should include impacts on wildlife in the area, particularly threatened or endangered species.

Visual Effects

We are concerned about visual effects for Elk City residents, visitors and recreationists. Effects may include exhaust, smoke, and dust during the day and lights at night. Clear views of the night sky are important for many residents and campers and we are concerned that light pollution will impair visitor experiences. As such, Elk City Mining should utilize "dark sky" principles in which lights are strategically located, directed down toward the ground and a lower wattage is used.

Recreation Impacts

Elk City is a popular destination for hikers, hunters, trail enthusiasts, and fishermen. The DEIS should describe the impacts to recreationists in this area. Details of where public access will be allowed and where it will be restricted need to be included in the DEIS. The DEIS should present photographs depicting the proposed mine operation (including structures, pits, pads, smoke, and dust) from peaks in the Elk City area. The BLM cannot approve the PoO if it would violate Visual (VMS) requirements in the RMP.

Noxious Weeds

The BLM should require the use of native species to the maximum extent practicable. There is already a considerable infestation of spotted knapweed in the area. Because of bull trout and other listed fish species, it may be difficult to utilize herbicides in this area. Furthermore, treatments such as herbicides and biological control agents may further compromise the ecological integrity of these areas.

Socio-Economic Analyses

The DEIS should describe the potential socioeconomic impacts of the project in the construction, operation and closure phases. This analysis should include potential impacts to residential, retirement and vacation properties and recreational values and experiences in the region both during mine operations and after closure. For example, the broad impacts on water quality and residents need to be addressed which includes the lifestyle of residents, feelings of assurance that water supplies are safe and potential impacts to stock from water quality impacts. The impacts on local residents, their lifestyles and property must be addressed. This includes but is not limited to health, hours of operation (noise, activity, light), drinking water, property values and rights (including stock and other animals), lifestyle, and enjoyment of their property. Indeed, many local residents made it clear during the field trip and subsequent meeting they feel their quality of life, property values, and use and enjoyment of their property may be threatened by this proposal. The DEIS must address these issues in detail. One of the most important ecological services that public lands provide is clean water. The Buffalo Gulch drainage currently provides the drinking water supply for several property owners and it is reasonable to expect this percentage to increase in the future. Given the fact that the Clearwater River system is widely used to promote Idaho businesses by the state and private companies, this analysis should focus on the current and projected economic returns provided by the Clearwater River system and what the short and long term economic losses may be if there is a catastrophic spill and a resultant fish kill or water shortage. The BLM should also examine the long-term impacts of any negative stigma associated with Clearwater River system as a result of a spill, even after the effects have dissipated. Hunting and fishing revenues in Idaho top $540 million dollars annually and are an important economic driver for local communities. We are concerned about loss of these opportunities as a result of permitted or unpermitted activities. In addition, the mine may necessitate local fishing and hunting restrictions. Because of risks of a diesel or process fluid spill from an inadvertent rifle bullet from the area surrounding the Buffalo Gulch mine, no hunting or recreational shooting should be allowed within projected bullet ranges of the mine facilities.

Wild and Scenic Rivers

The South Fork is a study segment for National Wild and Scenic River status. This must be assessed. If the BLM action to permit the mine degrades the study reach, it will violate the Nationwide Rivers Inventory Executive Order (and the Wild and Scenic Rivers Act’s requirement) not to degrade a study segment while it is being studied for inclusion in the National Wild and Scenic Rivers System.

Treaty Rights/Other Rights

The economic impacts of traditional uses (treaty rights and recreation) could be negatively affected by this project, especially if a cyanide spill or leak were to occur. Fishing in the South Fork is important culturally and economically and, since the completion of Dworshak Dam, the South Fork has added importance as an anadromous fishery. This must be evaluated.

Claim Validity

Before rejecting the no-action alternative under NEPA, or approving a PoO, closure, and reclamation, the agency is obligated to ensure that the public's resources are not being jeopardized by actions pursuant to invalid mining claims. It is law that the mining "rights" relied upon by the agency can only be based on the discovery of a "valuable mineral deposit" on each claim to be used by the applicants. (30 U.S.C. 22). The BLM cannot presume that the filing of a mining claim means that the claim is valid (i.e. that the "rights" relied upon by the applicant are rights at all). A mining claim location does not give presumption of a discovery. (Ranchers Exploration v. Anaconda). "[L]ocation is the act or series of acts whereby the boundaries of the claim are marked, etc., but it confers no right in the absence of discovery, both being essential to a valid claim." (Cole v. Ralph, 252 U.S. 286, 294-96 (1920)). The Department of the Interior also has rules that "rights" to develop federal land do not arise without a discovery: The essential conclusion that a mining claim cannot be valid without a discovery has been restated by the courts as well as the Department. "Discovery is the sine quo non of an entry to initiate vested rights against the United States." (Davis v. Nelson, 329 F2d 840, 845 (9th Cir. 1964)); ". . . that discovery is the prerequisite to the validity of a mining claim cannot be disputed." ( Fresh v. Udall, 228 F.Supp. 738, 740 (D. Colo. 1964)). (U.S. v. Bartels, 6 IBLA 126, 127 (1972)).

The IBLA also noted that since each claim must contain a valuable mineral deposit, "the recovery expected from each claim must not only exceed the costs of mining, transporting, milling, and marketing the particular mineral deposit on that claim but each claim must also bear a proportionate share of the development and capital costs attributable to the combined operation." (U.S. v. Collord, 128 IBLA 266, 287-288 (1994)). Furthermore, the Interior Department requires that the costs of compliance with environmental regulations be factored into the validity determination. (United States v. Pittsburgh Pacific, 30 IBLA 388 (1977); Leshy, The Mining Law, (Resources for the Future, 1987); United States v. Kosanke Sand Corporation, 80 IBLA 538, 546-547 (1973)). Since the federal government can review and challenge the validity of any mining claim at any time (Cameron v. U.S., 252 U.S. 450(1920)), it must inquire into these issues at the outset as part of its NEPA review processes. Further, under the Administrative Procedures Act (APA), any BLM decision based on an assumption of claim validity and "rights to mine" must be supported by substantial evidence in the record. The BLM cannot restrict its authority based on incorrect and insupportable assumptions that the claim(s) on the site contain valuable mineral deposits (or millsite claim validity) under the mining laws. The agency's duty to protect the surface resources under the ESA, NFMA, and FLPMA, as well as its duty to make informed decisions under NEPA, would be violated by such an action. In essence, the BLM is faced with the question whether cyanide heap leach mining is appropriate given the tremendous potential long-term environmental and human costs associated with it. It isn’t a valuable discovery if the environmental costs are too great ( again, see United States v. Pittsburgh Pacific, 30 IBLA 388 (1977); Leshy, The Mining Law, (Resources for the Future, 1987); United States v. Kosanke Sand Corporation, 80 IBLA 538, 546-547 (1973)). A prudent person wouldn’t mine under conditions that could cause serious negative impacts into perpetuity.

Further, under FLPMA, BLM must ascertain the correct level of its authority over the Project. While the "undue degradation" standard under FLPMA applies where the applicant has demonstrated that it has statutory rights against the United States under the Mining Law, where Project lands have not been verified to contain, or do not contain, such rights, BLM’s more discretionary multiple use authorities under FLPMA apply. See Mineral Policy Center v. Norton, 292 F.Supp.2d 30, 46-51 (D.D.C. 2003). The BLM cannot assume that only the FLPMA "undue degradation" standard applies on lands that are not covered by valid claims, since that would directly contradict the ruling and order from the Court in that case. A proper application of FLPMA’s multiple use and sustained yield mandates (including the prohibition against permanent impairment of public resources) to those areas not covered by valid claims would result in a very different Project review and level of protection for public land resources and values. Here, BLM has not ascertained which of the applicable mining and millsite claims are valid under the Mining Law, and the proper level of authority which derives from claim status. Further, BLM has not complied with the order of the District Court in Mineral Policy Center regarding the revision of its regulations and policies to require Fair Market Value and other requirements directed by the Court. Until BLM is in compliance with the Court order and legal direction from the Court, BLM cannot approve the Project.

The Plan of Operations

During the field trip on August 28, 2008, those proposing this mine noted that the technology has changed drastically since the first mine was approved in 1990 and that the new project would incorporate these major changes. This statement was designed to lead the public to believe that this new proposal would be better and safer than the one approved in 1990. However, the scoping notice clearly states that the company is proceeding under the 1989 plan of operations (PoO). No updates of the plan of operations (PoO) has been posted on the website by BLM or made available to the public. This is clearly stale scientific information and the BLM is not using the Best Available Scientific Information and Data to formulate their regulatory decision; clearly violating the Data Quality Act. Will the 1989 PoO and its accompanying closure and reclamation plans remain operative or will they be amended throughout the NEPA process? If it is the latter, how can the public comment on such a moving target? Why wasn’t a new PoO (and associated plans) done if the current project is so much better than what was proposed in 1989/1990? The 1989 PoO raises serious questions about the impacts that we address in this scoping letter. If the technology has really changed—as we were told on the field trip—then a new P0O is necessary. Certainly, the adequacy of the 1990 EA is such that a new environmental document, an EIS in this case, must be prepared.

Alternatives and Mitigation Measures

Because of potential water contamination issues, the BLM should develop an alternative that reduces the waste rock footprint by completely backfilling the pit. We are concerned about releases of arsenic and other naturally occurring contaminants from waste rock piles. Due to the difficulty in accurately predicting future water treatment needs and the difficulty in treating contaminated water, and the costs of funding a perpetual water treatment system, the BLM should develop an alternative that precludes the need for a perpetual water treatment system. As such, we do not believe that a perpetual water treatment is the best long-term use of this watershed if there is an alternative that can avoid this possibility. The BLM should develop an alternative that does not require perpetual water treatment by significantly reducing the surface area and footprint of the waste rock pile. We are also concerned about the potential for Acid Mine Drainage. Since Acid Mine Drainage is difficult to predict, extremely challenging and expensive to manage, and increases the leaching rates of heavy metals and other contaminants, the BLM should use extremely conservative standards for identifying potentially reactive material and require the operator to minimize production of and completely isolate this material.

Bonding/Financial Assurance/Reclamation

The agency should require a financial assurance to ensure that reclamation would be completed in the event of abandonment of the site. This is especially critical due to the problematic economics and environmental impacts of gold recovery. Recovery needs to be timely and complete. Unfortunately, the HECLA Grouse Creek Mine in the Yankee Fork Salmon River drainage (Grouse Creek) will likely need to be monitored by the public forever to ensure that toxins don’t leak and damage watersheds. The BLM should detail the amount, scope, and form of the financial assurance in the NEPA process to make certain that such a critical issue is subjected to public review and comment. The agency needs to take into account the past record of claimants in compliance with all requirements in considering this project. Reclamation wasn’t completed on the test pad site. It was left mainly to natural regeneration even though it was decided in 1994 that the mine would not be built. Why didn’t reclamation occur? Was it because the company intended some day to return and build a mine? If so, what is to prevent the company from claiming, after five years, it may come back so reclamation is put on hold? The same would hold true for future mine expansion.

Wildfire and Lightning

During the field trip, the question was raised about the safety of the mine workers, facilities, liners, culverts, vehicles, and diesel storage containers in the event of a wildfire or lightning strike. Wilf Struck with the Elk City Mining Company assured us that sufficient fuel breaks would be created between the surrounding vegetation and the facilities. The DEIS should provide more information on how the facility will be "Firewise" with regard to hazardous fuels and the use of fire-resistant materials in building construction. We note that plastic culverts on the South Fork River Road on the Boise and Payette National Forests melted in the wildfires of 2007, causing both access and sedimentation problems in the area. Given the prominent height of the project area, the BLM should also consider how to minimize the damage to facilities from lightning strikes. In addition, the BLM should also analyze the safety risk should any of the facilities catch fire. We are concerned about the potential for explosions and the release of toxic chemicals, which could result in public health risks downwind in the vicinity of Elk City. If there were a toxic release that necessitated some form of evacuation of the surrounding area, this inability to place firefighters in the larger area could preclude protecting downwind homeowners and public land. Wilf Stuck also mentioned that, in the event there is a fire, that the Elk City Mining Company would be willing to deploy workers and heavy equipment to help fight fires in the area. While we appreciate this offer, in order for Elk City to be of assistance, their workers would need to obtain their Red Cards from the Forest Service and BLM. Because wildfire is a significant natural resource and public safety issue in this area and because the Buffalo Gulch facility plays a potential role in increasing or decreasing the risk factor, this issue must be fully evaluated in the DEIS.

Conclusion

As noted above, it appears that BLM’s review of the Buffalo Gulch Mining Project already suffers from a number of critical deficiencies that must be corrected. Most disturbing is the general attitude exhibited by BLM, the mine proponents and the contractors on August 28, 2008 that this mine will be built. Federal law requires that an objective analysis take place before decisions are made.

Sincerely, /s/

Gary Macfarlane Friends of the Clearwater PO Box 9241 Moscow, ID 83843 --and for-- Alliance for the Wild Rockies

Pam Elkovich Trout Unlimited 1020 West Main, Suite 440 Boise, ID 83701

John Robison Idaho Conservation League PO Box 844 Boise ID, 83702

Bonnie Gestring Earthworks PO Box 8383 Missoula, MT 59807

Debra Ellers Western Idaho Director Western Watersheds, Inc. PO Box 1030 McCall, ID 83638

Kevin Lewis Idaho Rivers United PO Box 633 Boise, ID 83701

Mike Petersen The Lands Council 25 West Main, Suite 222 Spokane, WA 99201

Cameron Naficy WildWest Institute PO Box 7998 Missoula, MT 59807

Cc: Teresa Kubo, Environmental Protection Agency Region 10, via E-mail Idaho Department of Environmental Quality Mike Doherty, US Army Corps of Engineers