Mine lawsuit could determine future of Soda Springs

A strange drama is taking shape in southeast Idaho with 800 jobs and the life of a rural community at stake. The stage is the United States District Court in Pocatello, in a lawsuit before Chief Magistrate Judge Candy W. Dale, a veteran of federal courts for over a decade.

The plaintiffs are three environmental action groups seeking to halt the development of a federally-approved phosphate mine in Caribou County owned by the P4 Production LLC subsidiary of the multinational Bayer AG corporation. This drama comes with a notable cameo appearance by the world’s most popular and most reviled herbicide, Roundup.

The lawsuit is just over two months old and the latest act, a counter-motion filed on June 29, argues that P4 should not be allowed to be a defendant in a case the impacts its existence as a business.

What is the purpose of the lawsuit?

The aim of the suit is to obtain an injunction to stop the development of the Caldwell Canyon Mine on the grounds the Bureau of Land Management (BLM) botched its due diligence in permitting the mine during the multiyear process required by the National Environmental Policy Act of 1970, better known as NEPA.

NEPA requires every federal agency to evaluate the environmental effects of its proposed actions prior to making any decision. It affects everything from road construction to mine development on public land. NEPA is the legislation that created the environmental impact statement (EIS) policy tool and mandatory public outreach and commentary programs that add years to any large project.

The suit started on April 27 when attorneys with Boise-based Advocates for the West (AfW) requested an injunction on the BLM’s approval of the Caldwell Canyon Mine and the EIS process behind that decision. The mine would strip over 1,500 acres along a small valley in the Caribou Range of its overburden of marine sedimentary rocks to reach the Meade Mountain shale member of the Phosphoria Formation, the aim of every phosphate mine in southeast Idaho, the nation’s second largest phosphate mining district.

AfW filed for the injunction on behalf of the Western Watersheds Project of Hailey, Idaho, the Center for Biological Diversity of Tucson, Arizona, and WildEarth Guardians of Santa Fe, New Mexico. The defendant is the BLM. The initial filing claimed that the BLM failed to adequately assess the impact of selenium pollution from the mine, the cumulative effects of phosphate mining, the indirect effect of processing the mined ore at P4’s processing plant just north of Soda Springs and the effect of the mine on sage grouse.

It is interesting that the second point in the initial filing invoked the Bayer-owned herbicide Roundup. Glyphosate, the active phosphorus compound in Roundup, is the end product of P4’s current Blackfoot Bridge Mine and the future Caldwell Canyon.

It is beyond doubt that the mine would indeed affect five documented sage grouse leks (nests), destroying one of them and disturbing the others. Unpacking the other claims in the initial filing involve some statements whose truthfulness is supported by the omission of other contradictory circumstances, like claims of the carcinogenic properties of glyphosate.

Other statements are just plain wrong, like the claim of 10 Superfund sites “in the area” when there are only six active and three additional “proposed” sites in the entire state. Three of Idaho’s six active Superfund sites involve the phosphate mining industry: one in Pocatello and two, including P4’s plant, north of Soda Springs.

What is the status of the lawsuit now?

The BLM asked for an extension to prepare its response to the case, pleading delays introduced by the change in presidential administration, which always involves a changeover in executive management of most federal agencies. The judge granted the extension, so now the BLM now has until Aug. 31 to respond.

On June 8, P4 filed a “motion to intervene,” essentially an argument that it should be a defendant in the case. In the real world, there is a certain amount of sense that P4 should have some standing in a lawsuit that would delay the development of the mine or prevent it from going forward at all. P4’s Blackfoot Bridge Mine is at the end of its life. Caldwell Canyon was to be its replacement. The lead time to locate and characterize a mine takes years, often more than a half-decade. The NEPA process to permit a mine on public land takes just as long or longer. Outside of offshore oil-and-gas field development, no other industry has higher upfront capital costs and longer lead times than mining.

Caldwell Canyon would keep close to 200 miners and over 600 phosphate plant workers continuously employed for the next 40 years. The experience of past mining ghost towns argues that stalling the mine’s development or preventing it altogether would mothball or close the plant north of Soda Springs and decimate the economy of the town.

The plaintiffs’ countermotion stated that there are four requirements for the motion to intervene to succeed: “(1) the motion must be timely; (2) the applicant must claim a ‘significantly protectable’ interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant’s interest must not be adequately represented by the parties to the action.”

The plaintiffs argued the P4 motion to intervene failed to show that BLM would not adequately represent its interests in arguing against the proposed injunction.

Whether the judge in the case agrees that BLM is solely sufficient to argue on behalf of P4’s stake in the case remains to be seen. Whether one agrees or disagrees that P4 should be denied the opportunity to participate in a case that will decide its fate as a business, there is one thing to consider that many outside the law fail to appreciate: that the legal world inside a courtroom is not the same thing as common sense, perceptions of fairness and reality outside of it.

AfW did not respond to a request for comment. P4/Bayer did not reply to an Idaho Business Review inquiry before the deadline for this article.