Forest Service prevails in lawsuit over gold exploration in Sierra

Hillel Aron

SACRAMENTO, Calif. (CN) — A federal judge on Thursday found in favor of the Biden administration in a lawsuit filed by four conservation groups seeking to stop an exploratory gold drilling operation on public land in the eastern Sierra Nevada Mountains near Mammoth Lakes.

"Nothing suggests the Forest Service ignored the project’s environmental effects," Chief U.S. District Judge Kimberly Mueller in a 25-page order on summary judgment. "Nothing suggests it attempted to obscure the project’s environmental effects behind multiple categorical exclusions."

Kore Mining Ltd. wants to drill 12 holes, 600 feet deep, to try to find gold on federally owned land — which is legal, so long as it applies for a permit. The federally owned land in question is, as Mueller describes it, "a wide and gently sloping expanse of 1,848 shrubby acres" pocked with hundreds of holes bored by mining companies in the 1980s and 1990s. At the time, technical limitations meant that those holes couldn't go deeper than a few hundred feet. But Kore Mining believes there might be gold up in them there hills and that deeper drilling might be possible today.

Kore's proposal would require clearing vegetation and building about a 1/3-mile temporary access roads. The U.S. Forest Service concluded in 2020 that the project "was unlikely to have any significant effects on the environment" since it would take less than a year and require less than a mile of new roads.

During the public comment period that followed, numerous environmental groups, nearby towns and government agencies objected to the project. Of particular concern was the bi-state sage grouse, an iconic bird famous for its extravagant mating dances — "Picture a spike-tailed, puff-chested small turkey in a brown tuxedo, shaking and strutting in the brush," Mueller wrote.

The Forest Service then said it would not allow Kore Mining to undertake any “disturbance activity” between March and June, the sage grouse's mating season. It also said Kore would have take a number of steps to restore the land after its exploratory drilling, including returning the land to its original slope and sowing native seeds. And a biologist would have to monitor the area for three years after the drilling stopped.

Four groups — the Center for Biological Diversity, the Western Watersheds Project, Friends of the Inyo, and the Sierra Club — filed a lawsuit in October 2021 against the U.S. Forest Service and Kore Mining to halt the project.

"This drilling project will cause exactly the kind of noise and commotion that make bi-state sage grouse abandon their habitat,” said Ileene Anderson, a senior scientist at the Center for Biological Diversity, in a statement at the time. “It’s appalling that the Forest Service is willing to push these beautiful dancing birds closer to extinction for a toxic mine.” Environmentalists also worried about the impact the drilling would have to the groundwater in the area that feeds into the Owens River, which supplies water for Los Angeles.

At issue in the lawsuit was the fact that the Forest Service relied on two categorical exceptions to bypass a more thorough environmental review of the project: “wildlife habitat improvement activities that do not include the use of herbicides or do not require more than one mile of low standard road construction” and mineral investigations that take less than one year to complete and require less than one mile of new road.

While the mining operation was covered under the second exception, the habitat restoration, and in particular the three-year monitoring period, would of course take longer than a year, and would those need to be covered by that first exception.

"It is undisputed that all drilling, grading and construction will finish within a year; Kore will regrade the pads and roads and cap its wells within a year; revegetation is a nonherbicidal wildlife improvement for sage grouse; and Kore will construct less than a mile of new access roads," Mueller wrote. The question, then, was: "Can a project be approved in two or more parts, each covered by a different exclusion?"

Mueller decided yes — though it may not be ideal, "a patchwork of individually-insufficient-but-collectively-sufficient exclusions can cover a single project or action." Or: "Zero plus zero is zero."

Though she acknowledged the practice of using multiple exceptions could be abused — "In some extreme cases, this divide-and-conquer strategy might lead to absurd results" — she added, "This is not such an extreme case."

In an email following the decision, Ileene Anderson wrote: "While disappointing, we are reviewing the court's decision and considering all options, including appeal."

The U.S. Forest Service and Kore Mining have not yet responded to emails requesting a comment.