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April 15, 1981

CABINET MOUNTAINS WILDERNESS/Scotchman's Peak Grizzly Bears et al., Plaintiffs,
R. Max PETERSON, in his official capacity as Chief Forester of United States Forest Service, Department of Agriculture et al., Defendants; Asarco Incorporated, Intervening Defendant

The opinion of the court was delivered by: GESELL


This case involves a challenge to a decision by the United States Forest Service approving a mineral exploration program by a private company, ASARCO, in the Cabinet Mountains Wilderness area of northwest Montana. The matter is before the Court on cross-motions for summary judgment filed by the plaintiffs, the defendants, and intervenor ASARCO. The issues have been exhaustively briefed and oral argument has been heard.

 The positions of the parties can be stated fairly succinctly. The plaintiffs assert that the exploratory drilling area is inhabited by a small, isolated population of approximately a dozen grizzly bears, which is listed as a threatened species, 50 C.F.R. § 17.11(h) (1980), under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. Approval of the exploration program, plaintiffs contend, violated the government's responsibilities under the Endangered Species Act to ensure that the government does not authorize, fund, or carry out any activity that is likely to jeopardize the continued existence of the grizzlies and to take affirmative steps to protect, conserve, and restore grizzlies to a level that would permit their removal from the Endangered Species list. Plaintiffs also contend that the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., and the regulations of the Council on Environmental Quality require that the Forest Service prepare an environmental impact statement before approving such a project, and that because this was not done the approval was not lawful.

 The government disputes both of these contentions. Defendants modified the proposed drilling plan in order to accommodate concerns for the grizzlies raised in a Biological Opinion rendered by the Fish and Wildlife Service, and defendants assert that these modifications, plus the additional programs conducted by the government to aid populations of grizzlies, meet all the requirements of the Endangered Species Act. Furthermore, defendants assert that an environmental impact statement was not required in this case because the environmental assessment statement prepared by the Forest Service properly found that the drilling project, as modified, would have "no significant impact" and thus the assessment statement alone sufficed to meet the NEPA requirements.

 ASARCO, who intervened in this case to protect its interests as the drilling permittee, goes even further than the defendants in opposing plaintiffs' position. ASARCO not only argues that there has been compliance with the Endangered Species Act and NEPA, but also suggests that there is no reliable evidence that grizzly bears inhabit this portion of the Montana wilderness and thus plaintiffs' concerns are baseless.

 The facts concerning the government's review of the ASARCO drilling project are not in dispute and have been set forth in great detail in the papers submitted by the parties. Only a brief summation is necessary here. The Cabinet Mountains Wilderness area consists of approximately 94,272 acres in northwestern Montana. ASARCO holds a claim block totaling 2,980 acres, most of it in the Wilderness area. Exploration in the ASARCO area has taken place since the 1960's, and some drilling occurred during the 1960's and 1970's on portions of the claim block outside the Wilderness area.

 In 1979, ASARCO sought to begin exploratory drilling within the Wilderness area. There was a substantial review of the proposal by the Forest Service, in consultation with the Fish and Wildlife Service, and ultimately approval was given. Four holes were drilled during the period from July to November, 1979, and the environmental impacts of the project were closely monitored and studied. In February, 1980, ASARCO proposed an expanded program of exploratory drilling to take place during the temperate months of 1980 through 1983. The project is intended to meet the time constraints placed on ASARCO by the Wilderness Act, 16 U.S.C. § 1133(d)(3) (1976), which requires that ASARCO prove no later than December 31, 1983, that the claim block contains an economically significant body of ore or else lose certain rights to the claim area.

 The specific drilling program for 1980 proposed 36 drill holes on 22 sites. Approximately the same level of drilling activity was proposed for the subsequent three years, although no precise sites were indicated. After receiving the proposed plan, the Forest Service prepared an environmental assessment. During the preparation, the Forest Service sought input from individuals and groups interested in the area, received comments from well over 100 parties, and held several public meetings. Many of the plaintiffs in this case were involved in these administrative proceedings. Most importantly, the Forest Service requested that the Fish and Wildlife Service of the Department of the Interior prepare a Biological Opinion for the proposed drilling plan. The Fish and Wildlife Service did so and recommended a variety of mitigation efforts to reduce the negative environmental impacts of the project. These suggestions were incorporated into the final environmental assessment released by the Forest Service, and include a number of suggestions expressly addressed to minimizing the potential impact of the project on the grizzlies. These mitigation efforts include closing certain roads, regulating timber sales, restricting travel into and away from the drill area, and controlling activities at the drill site.

 Based on this environmental assessment, the Forest Supervisor, William E. Morden, issued a "Decision Notice and Finding of No Significant Impact" on June 17, 1980. That decision stated, in part:

After thorough review of the operating plan, the Environmental Assessment with its mitigating measures and appendices, and the compensation plan from the U. S. Fish and Wildlife Service, I conclude that the impacts of the proposed activity are adequately assessed and that appropriate measures are initiated to insure that:
The provisions of mineral regulations regarding location and exploration can be adequately met and carried out,
The wilderness characteristics of the Cabinet Mountains Wilderness will be preserved,
The continued existence of the grizzly bear is not threatened nor is its critical habitat ...

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