Forest Service responds to lawsuit
by ANTHONY QUIRINI - Ravalli Republic
All vested parties involved in a lawsuit seeking to stop mining at the Lost Horse Quarry have filed their briefs and now a federal judge in Missoula will decide what happens next.
In July, a group of Bitterroot Valley residents filed a lawsuit against the Forest Service after it gave the okay to Ravalli County to extract 1,000 cubic yards of rock from the quarry south of Hamilton.
The group is alleging the Forest Service violated the National Environmental Policy Act and the National Management Act when it excluded the mining project from review. Additionally, the plaintiffs say the agency failed to analyze the mining effects on endangered species, such as peregrine falcons, bull and westslope cutthroat trout.
The quarry is 4.99 acres, and to be categorically excluded from NEPA a project has to be five acres or greater.
The group is asking a judge for an injunction to halt the project until a ruling is issued.
The Forest Service filed its response to the lawsuit Tuesday.
The agency said the group failed to demonstrate irreparable harm and that the plaintiffs are unlikely to succeed in landing an injunction.
“Thus, a project to remove minerals from 4.99 acres of a community pit is eligible for categorical exclusion, whether the pit is immediately adjacent to the forest boundary, accessed via easement over private land, or 2.4 miles down an existing Forest Service road,” the agency’s attorneys’ Wlliam Mercer and Mark Steger Smith wrote. “The agency’s interpretation of its regulation here is certainly not “clearly erroneous or inconsistent with the terms of the regulation and therefore must be uphold.”
The agency’s lawyers also said the Forest Service addressed the project’s potential impacts on endangered species.
“The Forest Service prepared both aquatic and terrestrial biological assessments to assess the project’s potential impacts,” the attorneys wrote, noting that bull trout only live upstream from where the quarry is located. “The area to be disturbed by the project (which has been previously disturbed) is comprised of scree and loose rock, which is not nesting or foraging habitat for peregrines ... the climbers who brought this lawsuit pose a greater risk of disturbance to peregrines than do the short-term operations at the quarry.”
As well, the defendants claim that balancing the harms and public interest should weigh in when granting an injunction.
“Plaintiffs make no bonafide showing of any actual harm,” they wrote. “On the other hand there are real costs and negative impacts from enjoining the project. The citizens of Ravalli County would bear substantial increased costs if they had to buy the rock, rather than get it for free.”
The commission originally asked the agency for the rock for a grant funded bridge replacement project up Kootenai Creek. The grant funds covered everything except for the rip-rap rock, which county officials estimate will cost in excess of $30,000 - money the commission says it doesn’t have.
If a judge grants an injunction, the county will likely have to buy the rock elsewhere or the bridge replacement funding will be lost. The cost for the rip-rap may ultimately come from the taxpayers.
Reporter Anthony Quirini can be reached at 363-3300 or aquirini@ravallirepublic.com
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