U.S. Magistrate Mikel Williams has ruled the J.R. Simplot Co. can resume clearing trees, removing topsoil, constructing roads, and installing utilities, effective Friday, May 22, as Simplot prepares to enlarge its Smoky Canyon phosphate mine – dealing a setback to environmentalists trying to block the mine’s expansion in the Caribou/Targhee National Forest.
On April 10, the 9th U.S. Circuit Court of Appeals temporarily halted preparatory work for the mine’s expansion in Caribou County, not far from Afton, Wyo., after the Greater Yellowstone Coalition, Natural Resources Defense Council, Sierra Club, and Defenders of Wildlife argued it would contaminate nearby waterways, harm wildlife, and damage roadless areas.
The three-judge panel remanded the case back to Williams, who declined last November to issue a preliminary injunction blocking the mine’s expansion, upholding the U.S. Forest Service and Bureau of Land Management, who approved it. The federal appellate justices found the environmental groups had not established a likelihood of irreparable harm from potential selenium contamination.
On April 12, Simplot attorneys filed a motion to lift the temporary stay and requested an expedited proceeding. The Smoky Canyon mine provides 1.5 million tons of phosphate annually to Simplot’s Pocatello fertilizer plant. Company officials have said the mine’s reserves will be exhausted by 2010 if the company is not allowed to expand onto two forest parcels.
“Stopping work in the middle of a project like this poses problems of preserving the existing work, preventing erosion from untended work, and causes impacts to the workers and to the third-party contractors who have been performing the timbering and well drilling activities,” the lawyers said.
Simplot notes the two forest panels into which it plans to expand the mine will affect only .05 percent of the 2.7 million acres of the entire Caribou-Targhee National Forest. The phosphate industry pays up to $5 million in royalties to the federal government, some of which is returned to Idaho.
Intervening on April 20 in support of lifting the temporary stay were United Steelworkers Local 632; the Idaho Farm Bureau Federation; the cities of Pocatello, Chubbuck, Soda Springs, and Afton; and Bannock, Power, Caribou, and Lincoln counties.
Two groundwater wells required by the Idaho Department of Environmental Quality are to be installed over the next 90 days. Roads and drill pads for the wells have been completed. Road construction activity was halted by the temporary stay. Simplot will crush 160,000 cubic yards of rock to finish the grade. It will harvest 100 acres of timber, and 44 acres will be cleared of vegetation. Within the 44 acres, Simplot will salvage and stockpile 150,000 cubic yards of topsoil for future reclamation. About 450,000 yards of overburden would then be removed.
Williams is scheduled to issue a final ruling on the merits of an overall lawsuit to block the mine’s expansion by Aug. 4. An EarthJustice attorney representing the environmental groups said he intends to appeal Williams’s May 13 ruling on the temporary stay to the 9th Circuit and ask the court to expedite its ruling prior to May 22.
In his May 13 ruling, Williams noted the mine preparation work is only 800 yards from an existing mine that is six miles long and encompasses 2,600 acres of federal phosphate mineral leases. There also are thousands of acres still available for recreational activities in the Sage Creek area.
“This would suggest the harm claimed by plaintiffs is not irreparable. First, this is in a designated phosphate mining area leased to Simplot, and it will be reclaimed after mining operations are completed. Second, until this area is reclaimed after mining operations have ceased, there are far more pristine areas available for the plaintiffs’ stated purposes than this particular area. However, even assuming that it were irreparable, plaintiffs would still need to demonstrate that the balance of harms tipped sharply in their favor,” Williams stated.
“The hardships to a relatively few plaintiffs simply does not compare with the harm to Simplot, the other intervener-defendants, the struggling economies of southeastern Idaho city and counties, and possibly the national interest as well.”
Terry Uhling, Simplot senior vice president and general counsel, said he hopes Williams’s decision, the second in favor of mine expansion since November, will end legal maneuvering that has prevented opening new sections of the Smoky Canyon Mine.
“During the past 10 years, we have shown in court and in many public meetings that expansion at Smoky Canyon is environmentally sound and provides the country with a mineral that is considered vital to national interests. We have also proven that continued operation of the mine is economically important for the many communities that provide employees for the mine operations and the fertilizer manufacturing plant in Pocatello,” Uhling said.
Simplot Company President and CEO Larry Hlobik said Simplot looks forward to moving ahead with site work and the start of mine expansion. “Hopefully, this marks an end to the roadblocks and the threat to our local economies, and allows us to continue the important work of delivering nutritional requirements for the world’s increasing population,” Hlobik said.