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Appeals Court Gives Simplot Mine Expansion Green Light by Mateusz Perkowski Capital Press, December 30, 2010

Opposition cited contamination fears

A federal appeals court has cleared the way for the J.R. Simplot Co. to expand a controversial phosphate mine in Idaho.

The company has been seeking federal approval to increase the footprint of the mine, located in the Caribou-Targhee National Forest, since 2003. Phosphate ore has been extracted from the mine for fertilizer production since the early 1980s, but existing reserves were expected to run out this year.

The U.S. Forest Service and the Bureau of Land Management approved the project in 2008, but the case has been tied up in litigation since then.

The Greater Yellowstone Coalition and several other environmental groups claim the agencies agreed to the expansion despite its potential to contaminate surface waters with selenium.

Nearby mines have already been shown to violate environmental law by polluting streams and rivers with the mineral, said Timothy Preso, an attorney for the plaintiffs, during oral arguments earlier this year.

"The question is, are we headed for another one?" he said. "There is nothing in this analysis that gives the court any assurance that we are not."

The 9th U.S. Circuit Court of Appeals rejected those arguments, ruling that the agencies' environmental review of the project had complied with environmental laws.

Plaintiffs may not agree with the conclusions of that review, but the agencies have nonetheless seriously considered the project's impacts, according to the 2-1 majority opinion.

Further mining at the site will be subject to regular monitoring by the federal government, the court said. "Should the testing reveal significant inadequacies or miscalculations in the modeling, the agencies presumably are authorized to, and will require Simplot to, take corrective action."

Circuit Judge Betty Binns Fletcher didn't sign on with the majority opinion, writing in her dissent that the agencies relied on inadequate data to approve the project.

"The majority's willingness to accept the flawed and incomplete assessments of the agencies in this case amounts to an abdication of the judicial function," she said.