# Joint Appendix — Alaska v. Southeast Alaska Alaska Conservation Council (No. 07-990) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0065%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 2009 ## Text \O'e — | SEP 17 2008 OFFICE OF THE CLERK ~\ oO Nos. 07-984 and 07-990 IN THE Supreme Court of the United States COEUR ALASKA, INC., Petitioner, Vv. SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL., Respondents. STATE OF ALASKA, Petitioner, . SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL., Respondents. On Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit JOINT APPENDIX Volume 1 of 2 (Pages la-286a) THEODORE B. OLSON THOMAS S. WALDO Counsel of Record Counsel of Record GIBSON, DUNN & CRUTCHER LLP EARTHJUSTICE 1050 Connecticut Ave., N.W. 325 Fourth Street Washington, DC 20036 Juneau, AK 99801 (202) 955-8500 (907) 586-2751 Counsel for Petitioner Counsel for Respondents Coeur Alaska, Inc. Southeast Alaska Conservation Council, et al. [Additional Counsel Listed on Inside Cover] PETITION FOR WRIT OF CERTIORARI FILED JANUARY 28, 2008 CERTIORARI GRANTED JUNE 27, 2008 1.O0adn 7 ail MATTHEW D. MCGILL AARON D. LINDSTROM GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Ave., N.W. Washington, DC 20036 ROBERT A. MAYNARD PERKINS Coik LLP 251 East Front St. Ste. 400 Boise, ID 83702 Counsel for Petitioner Coeur Alaska, Inc. JONATHAN S. FRANKLIN TILLMAN J. BRECKENRIDGE FULBRIGHT & JAWORSKI L.L.P. 801 Pennsylvania Ave., N.W. Washington, DC 20004 (202) 662-0466 TALIS .J. COLBERG Attorney General STATE OF ALASKA Department of Law P.O. Box 110300 Juneau, AK 99811 (907) 465-3600 CAMERON M. LEONARD Assistant Attorney General STATE OF ALASKA Department of Law 100 Cushman St., Suite 400 Fairbanks, AK 99701 (907) 451-2311 Counsel for Petitioner State of Alaska Scotr L. NELSON PUBLIC CITIZEN LITIGAITON GROUP 1600 20th St., N.W. Washington, DC 20009 (202) 588-1000 Counsel for Respondents Southeast Alaska Conservation Council, et al. GREGORY G. GARRE Solicitor General Counsel of Record RONALD J. TENPAS Assistant Attorney General ELLEN DURKEE LANE MCFADDEN Attorneys DEPARTMENT OF JUSTICE Washington, DC 20530-0001 (202) 514-2217 Counsel for Federal Respondents DAVID C. CROSBY Counsel of Record 5280 Thane Road Juneau, AK 99801-7717 (907) 586-6262 Counsel for Respondent Goldbelt, Inc. [List of Additional Counsel Continued from Front Cover] TABLE OF CONTENTS Page Volume I A. G. Relevant Docket Entries from the United States Court of Appeals for the Ninth Circuit, No. 06-35679 ...............cccccceeceeees la Relevant Docket Entries from the United States District Court for the District of Alaska, No. 1:05-CV-00012- Response to Comments Document re- garding Section 404 Definitions of “Fill Material” and “Discharge of Fill Mate- gt EEE Sa ea ne 22a Kline Environmental! Research, Ken- sington Project Lower Slate Lake Tailings Impoundment: Habitat Crea- tion and Mitigation Plan (July 14, 2003).....128a Memorandum from Ed Kline, Kline En- vironmental Research, to Susan Hitchcock, Corps of Engineers (Dec. 23, ERSTE NCTE ur eae Reena aCe ra 13la Memorandum from D. Regas, et al., EPA, to R. Smith, EPA Region X (May Si TIL ssdiidisiscteneurnniddcsideiidaimditecnigadcbniabdiaebedenetune 14la Technical Memorandum from Ed Kline, Kline Environmental Research, to Rick PRMD GENE, DF, TO Pccencacccsiccccsevcncsscesccnsces 150a Letter from Dan Easton, State of Alaska Department of Environmental Conservation, to John Leeds III, De- partment of the Army (Dec. 6, 2004) ........... 155a il I. Forest Service, Kensington Gold Project Final Supplemental Environmental Impact Statement (Dec. 2004) (ex- J. Forest Service, Kensington Gold Project 2004 Record of Decision (Dec. 2004)............ K. Coeur Alaska, Inc., Reclamation and Closure Plan for the Kensington Gold a L. Letter from Ron Klein, State of Alaska Department of Environmental Conser- vation, to Rich Richins, RTR Resource Management, enclosing Certificate of Reasonable Assurance (May 6, 2005) .......... M. Corps of Engineers, Section 404 Permit I I cscs caiecaaldndtaniaconentendainenaniel Volume II N. EPA, Record of Decision: Kensington Gold Project, Section 402 NPDES Per- eB citi tcnniitiiscintitetiatnistninciienosiencee O. EPA, NPDES Permit No. AK-005057 i iiscctiininspdipeinihinnsinsesndesoeneses P. Declaration of Joe Kahklen (Oct. 12, Q. Corps of Engineers, Kevised Record of SE INN TE, SII vcnisedccnccctinntancocceensens R. Corps of Engincers, Section 404(b)(1) Evaluation for Kensington Gold Project I a caibealenioaioaiion ili Corps of Engineers, Section 404(b)(1) Evaluation for Cascade Point (Mar. 29, TET SE ATT 434a First Amended Complaint (Apr. 4, EERIE ee Se a 459a Opinion of the United States District Court for the District of Alaska (Aug. 3, ST ichlisinsidaeihipininsiihsilgeiliininabatipihiibaiignimddbedeveineineiies 478a Declaration of Randy Wanamaker (Aug. a eeisinnenon 497a Order of the United States Court of Ap- peals for the Ninth Circuit Granting Injunction Pending Appeal (Aug. 24, Ee en a 509a Order of the United States Court of Ap- peals for the Ninth Circuit Denying Motion to Vacate the Injunction Pend- ing Appeal (Dec. S, 200G).........c.cecccsesseccesesees 5lla Opinion of the United States Court of Appeals for the Ninth Circuit (May 22, Order of the United States Court of Ap- peals for the Ninth Circuit Denying Rehearing En Banc (Oct. 29, 2007).............. 552a . Order of the United States Court of Ap- peals for the Ninth Circuit Staying the Mandate (Nov. 14, 2007) .....................ee cece 554a AB. Order of the United States Court of Ap- peals for the Ninth Circuit Directing Preparation of Reclamation Plan (Nov. SE HE til oteiinaisanenasuedeanaibaisaiadbiniinsiiainescenes 555a la APPENDIX A General Docket United States Court of Appeals for the Ninth Circuit Court of Appeals Docket #: 06-25679 Docketed: 08/10/2006 Termed: 05/22/2007 Nature of Suit: 1893 Environmental Matters Southeast Alaska, et al v. USACE, et al Appeal From: US District Court for Alaska, Jun- eau Case Type Information: | 1) civil 2) united states 3) null Originating Court Information: District: 097--1 : CV-05-00012-J-JKS Trial Judge: James K. Singleton, Senior Dis- trict Judge Date Filed: 09/12/2005 Dese Order/Judgment: Date NOA Filed: Nee OO 08/04/2006 08/07/2006 | * eK K * | 2a SOUTHEAST ALASKA CONSERVATION COUNCIL; SIERRA CLUB; LYNN CANAL CONSERVATION, Plaintiffs - Appellants UNITED STATES ARMY CORPS OF ENGINEERS; TIMOTHY J. GALLAGHER, Colo- nel, in his official capacity as District Engineer; LARRY L. REEDER, in his official capacity of Chief of the Regulatory Branch; DOMINIC IZZO, in his official capacity as Principal Deputy Assis- tant Secretary of the Army (Civil Works); UNITED | STATES FOREST SERVICE, Defendants - Appellees COEUR ALASKA, INC.; GOLDBELT, INC.; STATE OF ALASKA, Defendant-intervenors - Appellees AMERICAN RIVERS; CLEAN WATER ACTION | NETWORK; COOK INLETKEEFPER; EARTHWORKS; FRIENDS OF THE EARTH; NATIONAL WILDLIFE FEDERATION; NATURAL RESOURCES DEFENSE COUNCIL, INC.; OXFAM AMERICA; UNITED STATES PUBLIC INTEREST RESEARCH GROUP; _WATERKEEPER ALLIANCE; MEMBERS OF 3a CONGRESS OF THE UNITED STATES, FRANK PALLONE, JR.; EARL BLUMENAUR; RAUL GRIJALVA: MAURICE D. HINCHEY; RUSH HOLT: MIKE HONDA; DENNIS KUCINICH; BETTY MCCOLLUM: JAMES A. MCDERMOTT: MARTIN T. MEEHAN: DONALD M. PAYNE: | JANICE D. SCHAKOWSKY; CHRISTOPHER H. SHAYS; FORTNEY H. (PETE) START, JR.; NEW | | STUYAHOK TRADITIONAL COUNCIL; MOUNTAIN STATES LEGAL FOUNDATION: | SOUTHEAST CONFERENCE; CITY AND | BOROUGH OF JUNEAU: BERNERS BAY CONSORTIUM: NATIONAL MINING ASSOCIATION, Amici Curiae 08/10/2006 8 _ Filed (filed per 8/24/06 order) Ap- pellants Southeast Alaska Conservation, et al., emergency motion for injunction; exhibits; proposed order; served on 8/10/06 [5915052] (to MOATT) | 08/14/2006 10 Filed appellee Coeur Alaska, Inc.'s "faxed" motion to strike plntfs' emergency motion for injunction pending appeal; served on 8/14/06 | [5918608] (to MOATT) (hardcopy recvd 8/17/06) * * K K XK 4a See | " | | 08/18/2006 13 Filed federal appellees USACE, et | al. "faxed" response in opposition | to emergency motion for injunction. pending appeal [5915052-1]; served on 8/18/06 (to MOATT) [06- | 35679] (hardcopy recvd 8/21/06) * * * * * 08/18/2006 15 Filed appellee Goldbelt, Inc.'s "faxed" response in opposition to emergency motion for injunction (5915052-1]; declaration of Randy | Wanamaker; exhibits; servedon | 8/18/06 (to MOATT) [06-35679] | (hardcopy recvd 8/22/06) | 08/18/2006 16 Filed appellee Coeur Alaska, Inc.'s. "faxed" response in opposition to | emergency motion for injunction pending appeal (5915052-1]; | served on 8/18/06 (to MOATT) [06- | 35679] (hardcopy recvd 8/21/06) | 08/18/2006 17 Filed appellants Southeast Alaska, et al. "faxed" response in opposi- | tion to motion to strike emergency > motion for injunction pending ap- | peal [5918608-1]; exhibits; served | on 8/18/06 (to MOATT) [06-35679] | (hardcopy recvd 8/22/06) | * Oe Kk | 08/21/2006 20 Filed (filed per 8/24/06 order) Ap- pellants Southeast Alaska _ 5a 08/22/2006 21 08/24/2006 24 9/14/2006 28 10/04/2006 41 | 10/04/2006 42 Conservation, et al. "faxed" reply | in support of emergency motion [5915052-1]; exhibits; served on 8/21/06 (to MOATT) [06-35679] (hardcopy recvd 8/24/06) Filed Appellee Coeur Alaska, Inc.'s "faxed" reply in support of its mo- | tion to strike [5918608-1]; served | on 8/22/06 (to MOATT) [06-35679] | (hardcopy recvd 8/23/06) Filed order MOATT ( Alfred T. GOODWIN, Stephen R. REINHARDT, ): * * * * (Order granting injunction pending ap- peal. See J.A. 458a.] | * * *K *X * : Filed original and 15 copies Appel-; lant Southeast Alaska, et al's : opening brief ( Informal: n) 54 pages and five excerpts of record in 3 volumes; served on 9/12/06 [(06-35679] * KKK * Filed original and 15 copies appel- : lee Coeur Alaska, Inc.'s 51 pages brief, 2 vols of joint Supp EOR (w/federal appellees); served on 10/3/06 (PANEL) [06-35679] Filed original and 15 copies appel- lees' US Army Corps of Engineers, Timothy J. Gallagher, Larry L. 6a ee eee | 10/06/2006 52 | 10/06/2006 53 10/24/2006 58 11/07/2006 67 11/22/2006 70 Reeder, Dominic Izzo, US Forest Service's 42 pages brief, 2 vols. of joint Supp EOR (w/appellee Coeur Alaska); served on 10/3/06 (PANEL) [06-35679] xk AK HK *K Filed original and 15 copies appel- lee State of Alaska's 19 pages brief; served on 10/6/06 (PANEL) (06-35679] Filed original and 15 copies inter- venor- appellee Goldbelt, Inc.'s 16 pages brief; served on 10/3/06 [06- | 35679) * * Ke K Filed original and 15 copies aplts Southeast Alaska, et al., reply brief, ( Informal: n ) 40 pages, and | 5 supp’! excerpts in 1 vol.; served on 10/13/06 (panel already served) | (06-35679] * * KK * Filed aple Coeur Alaska, Inc.'s ur- | gent motion to vacate injunction pending appeal on or before 12/8/06; exhibits; served on 11/7/06 (6000308] (faxed to PANEL) * * * * * Filed Appellants Southeast Alaska, et al., response in opposi- — _ tion to Coeur Alaska's urgent __ Ta 11/30/2006 71 | 12/04/2006 72 12/08/2006 73 05/22/2007 91 motion to vacate injunction {6000308-1]; exhibits; served on 11/21/06 (fedex to PANEL) [06- 35679] Filed Appellee Coeur Alaska, Inc.'s reply in support of its urgent mo- tion to vacate injunction pending appeal on or before 12/8/06 [6000308-1]; served on 11/30/06 (faxed to PANEL) [06-35679] ARGUED AND SUBMITTED TO Procter R. HUG, A. W. TASHIMA, | Susan P. GRABER [06-35679] Filed order (Procter R. HUG, A. W. TASHIMA, Susan P. GRABER,): Appellee Coeur Alaska, Inc.'s Ur- gent Motion Under Circuit Rule 27-3(b) to Vacate the Injunction Pending Appeal is denied. * * * * [See J.A. 460a.] * * KX Kk * FILED OPINION: REVERSED and REMANDED ( Terminated on the Merits after Oral Hearing; Re- | versed; Written, Signed, Published. Procter R. HUG, au- thor; A. W. TASHIMA; Susan P. GRABER. ) FILED AND ENTERED JUDGMENT. [06- 35679] * * * K OX 8a 08/20/2007 102 08/20/2007 104 08/27/2007 106 10/12/2007 115 [08/20/2007 101 [6265410] Filed original and 50 | copies Appellee State of Alaska's | petition for rehearing en banc, 18 p.pages; served on 8/17/07 (PANEL, ALL ACTIVE JUDGES | AND INTERESTED SENIOR JUDGES) [06-35679] | | | [6265430] Filed original and 50 copies Appellee Coeur Alaska, Inc. | petition for rehearing en banc, 20 | p.pages; served on 8/17/07 | (PANEL, ALL ACTIVE JUDGES | AND INTERESTED SENIOR JUDGES) [06-35679] | | | (6267155) Filed original and 50 | copies Appellee Goldbelt, Inc. peti- tion for rehearing en banc, 13 p.pages; served on 8/17/07 (PANEL, ALL ACTIVE JUDGES | AND INTERESTED SENIOR | JUDGES) [06-35679] | Filed order ( Procter R. HUG, A. | W. TASHIMA, Susan P. GRABER, | ): Plntfs-aplts are requested to file | responses to Federal aples' peti- tion for limited panel rehearing | and each of the intvrs-aples' peti-_. tions for rehearing en banc. Responses are to be filed by 10/5/07. (06-35679] * kK KK Filed original and 3 copies Appel- — 9a 10/12/2007 10/23/2007 | 10/25/2007 : 10/29/2007 116 123 128 129 lants Southeast Alaska, et al. re- sponse to federal aples' petition for limited panel rehearing [6265284- | 1]; served on 10/11/07 (to PANEL) |(06-35679] Filed original and 50 copies Appel- lants Southeast Alaska, et al. response to petition for rehearing en banc of aple Goldbelt, Inc. [6267155-1]; 8 pages; served on 10/11/07 (PANEL, ALL ACTIVE JUDGES AND INTERESTED SENIOR JUDGES) [06-35679] KKK KX Filed orig & 50 copies of Aplits Southeast Alaska, et al. response to petitions for rehearing en banc | of Coeur Alaska, Inc. and State of Alaska in 28 pgs; served on 10/11/07. (PANEL, ALL ACTIVE JUDGES & ANY INTERESTED SENIOR JUDGES PREVIOUSLY | SERVED) [06-35679] Filed Appellants Southeast Alaska, et al. response in opposi- tion to motion of Coeur Alaska, Inc. to file reply brief in support of petition for rehearing en banc (6325729-1]; served on 10/24/07 (faxed to PANEL) [06-35679] Filed order ( Procter R. HUG, A. W. TASHIMA, Susan P. GRABER, 10a 11/02/2007 133 11/14/2007 139 11/15/2007 140 | 11/26/2007 142 | 06/11/2008 148 ): The panel has voted to DENY the federal aples' petition for lim- | ited panel rehearing... (6265284-1] The petitions for rehearing en | banc are DENIED. (6265410-1), (6265430-1], (6267155-1] [(06- 35679] | * * * KX Filed aple Coeur Alaska, Inc.'s we tion to stay issuance of the mandate pending the filing and disposition for a petition for writ of certiorari; served on 11/2/07 | (63399 16} (faxed to PANEL) | * *K KK Filed order ( Procter RR. HUG, A. | W. TASHIMA, Susan P. GRABER, ): * * * *(Order staying the man- date. See J.A. 503a.] Filed Appellants Southeast | Alaska, et al..response in opposi- | tion to motion of Coeur Alaska, In.c, to stay issuance of the man- date [6339916-1]; exhibits; served _ on 11/14/07 (to PANEL) [06-35679] Filed order ( Procter R. HUG, A. W. TASHIMA, Susan P. GRABER, ): * * * *(Order re reclamation plan. See J.A. 504a.]) kK KK * } Filed order (A. WALLACE lla 06/26/2008 149 07/07/2008 150 | 07/07/2008 151 | 07/08/2008 152 07/23/2008 154 TASEIMA, SUSAN P. GRABER and PROCTER R. HUG) The par- ties are directed to provide a status report on the Government’s | reclamation plan, which was due May 1, 2008. Filed joint status report; served on 06/25/2008. (PANEL) Filed order (A. WALLACE TASHIMA, PROCTER R. HUG and SUSAN P. GRABER) In order | to keep the court fully informed, we request the parties furnish three copies of the reclamation plan. Received notice from the Supreme Court. Petition for certiorari GRANTED on 06/27/2008. Su- preme Court Number 07-984 Received notice from the Supreme Court. Petition for certiorari GRANTED on 06/27/2008. Su- preme Court Number 7-990. The case is consolidated with No. 07- 984. * OK Ke Kk Filed an orig. & 4 copies Appellee Coeur Alaska, Inc.'s reclamation Plan. (fed-ex PANEL) 12a APPENDIX B U.S. District Court District of Alaska (Juneau) CIVIL DOCKET FOR CASE #: 1:05-cv-00012-JKS Southeast Alaska Conserva- Date Filed: tion Council et alv. United 09/12/2005 States Army Corps of Engi- Date Terminated: neers et al 08/03/2006 Assigned to: James K. Sin- Jury Demand: None gleton, Jr Nature of Suit: 893 Case in other court: Environmental Mat- 9CCA, 06- ters 35679 Jurisdiction: U.S. Cause: 05:702 Administra- Government Defen- tive Procedure Act dant | ~vanel # Docket Text i * eK KK 13a 04/04/2006 28 AMENDED COMPLAINT (First) against Timothy J. Gallagher, Larry L. Reeder, Dominic Izzo, U.S. Forest Ser- vice, United States Army Corps of Engineers, filed by Southeast Alaska Conserva- tion Council, Sierra Club, Lynn Canal Conserva- tion.(Schane, Demian) (Entered: 04/04/2006) * KKK * 04/05/2006 31 MOTION to Intervene by Coeur Alaska, Inc.. (Attach- ments: # 1 Text of Proposed Order Motion to Intervene# 2 # 3)(Berghoff, John) (Entered: 04/05/2006) xe KK *K 04/06/2006 33 MOTION to Intervene by State of Alaska. (Attach- ments: # 1 Proposed Order# 2 Proposed First Amended An- swer)( Heese, Ruth) (Entered: 04/07/2006) x KK KK l4a 04/07/2006 38 MOTION to Intervene by State of Alaska. (Attach- ments: # 1 Proposed Order# 2 Proposed First Amended An- swer)(Heese, Ruth) (Entered: 04/07/2006) * eK KK 04/07/2006 41 MOTION for Summary Judg- ment by Southeast Alaska Conservation Council, Sierra Club, Lynn Canal Conserva- tion. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Injunction# 2 H#ZSH4AH#5SHGCHT#H#S#HO#H IO # 11)(Schane, Demian) (En- tered: 04/07/2006) * * KK * 05/03/2006 61 RESPONSE in Opposition re 41 MOTION for Summary Judgment filed by Goldbelt, Incorporated. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Ex- hibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Ex- hibit # 9 Exhibit # 10 Exhibit)(Crosby, David) (En- tered: 05/03/2006) * * KK *K 15a 05/05/2006 67 RESPONSE in Opposition re 41 MOTION for Summary Judgment filed by State of Alaska. (Attachments: # 1 Exhibit State's A# 2 Exhibit State's B# 3 Exhibit State's C# 4 Exhibit State's D-I# 5 Exhibit State's D-II# 6 Ex- hibit State's E# 7 Exhibit State's F)(Leonard, Cameron) (Entered: 05/05/2006) x KKK * 16a 05/05/2006 71 RESPONSE in Opposition re 41 MOTION for Summary Judgment filed by Coeur Alaska, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Ex- hibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11, pages 1-34# 12 Exhibit 11, pages 35-68# 13 Exhibit 12# 14 Exhibit 13# 15 Exhibit 14# 16 Exhibit 15# 17 Exhibit 16# 18 Exhibit 17# 19 Exhibit 18# 20 Exhibit 19# 21 Exhibit 20# 22 Exhibit 21# 23 Exhibit 22# 24 Exhibit 23# 25 Exhibit 24# 26 Exhibit 25# 27 Exhibit 26, pages 1-30# 28 Exhibit 26, pages 31-55# 29 Exhibit 27# 30 Exhibit 28# 31 Exhibit 29# 32 Exhibit 30# 33 Exhibit 31# 34 Exhibit 32)(Berghoff, John) (Entered: 05/05/2006) * * KK * 17a 05/05/2006 80 REPLY to Response to Motion re 41 MOTION for Summary Judgment filed by Southeast Alaska Conservation Council, Sierra Club, Lynn Canal Con- servation. (Attachments: # 1 Exhibit 43# 2 Exhibit 44# 3 Exhibit 45# 4 Exhibit 46# 5 Exhibit 47, part 1# 6 Exhibit 47, part 2# 7 Exhibit 48, part 2# 8 Exhibit 48, part 2# 9 Ex- hibit 49# 10 Exhibit 50# 11 Exhibit 51# 12 Exhibit 52# 13 Exhibit 53# 14 Exhibit 54# 15 Exhibit 55)(Schane, Demian) (Entered: 05/18/2006) * * * *K K 05/18/2006 104 REPLY to Response to Motion re 41 MOTION for Summary Judgment filed by Southeast Alaska Conservation Council, Sierra Club, Lynn Canal Con- servation. (Attachments: # 1 Exhibit 43# 2 Exhibit 44# 3 Exhibit 45# 4 Exhibit 46# 5 Exhibit 47, part 1# 6 Exhibit 47, part 2# 7 Exhibit 48, part 2# 8 Exhibit 48, part 2# 9 Ex- hibit 49# 10 Exhibit 504 11 Exhibit 51# 12 Exhibit 52# 13 Exhibit 53# 14 Exhibit 544 15 Exhibit 55)(Schane, Demian) (Entered: 05/18/2006) 18a * * KK * 08/03/2006 118 JUDGMENT that complaint is dismissed w/prejudice; judgment is entered in favor of Defendants . Signed by Judge James K. Singleton on 8/3/2006. (DPM, ) (Entered: 08/04/2006) 08/04/2006 117 MEMORANDUM DECISION denying 41 Motion for Sum- mary Judgment; granting 80 Cross-Motion for Summary Judgment; complaint is hereby DISMISSED w/prejudice . Signed by Judge James K. Singleton on 8/3/2006. (DPM, ) (Entered: 08/04/2006) 08/04/2006 119 MOTION for Preliminary In- junction Pending Appeal (shortened time) by Southeast Alaska Conservation Council, Sierra Club, Lynn Canal Con- servation. (Attachments: # 1 Proposed Order Granting In- junction Pending Appeal)(Waldo, Thomas) (En- tered: 08/04/2006) KKK AK K 19a 08/07/2006 125 NOTICE OF APPEAL as to 117 Order on Motion for Summary Judgment by Southeast Alaska Conserva- tion Council, Sierra Club, Lynn Canal Conservation. (Attachments: # 1 Civil Cover Sheet Civil Appeals Docketing Statement# 2 Exhibit Repre- sentation Statement)(Waldo, Thomas) (Entered: 08/07/2006) * * * * * 08/22/2006 136 RESPONSE in Opposition re 119 MOTION for Preliminary Injunction Pending Appeal (shortened time) filed by State of Alaska. (Attachments: # 1 Exhibit Hughes Declaration part 1# 2 Exhibit Hughes Dec- laration part 2)(Leonard, Cameron) (Entered: 08/22/2006) 20a 08/22/2006 137 RESPONSE in Opposition re 119 MOTION for Preliminary Injunction Pending Appeal (shortened time) filed by Coeur Alaska, Inc.. (Attach- ments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N# 15 Exhibit O# 16 Exhibit P)(Berghoff, John) (Entered: 08/22/2006) 08/22/2006 138 RESPONSE in Opposition re 119 MOTION for Preliminary Injunction Pending Appeal (shortened time) filed by Goldbelt, Incorporated. (Crosby, David) (Entered: 08/22/2006) * * KK * Zla 08/23/2006 143 REPLY to Response to Motion re 119 MOTION for Prelimi- nary Injunction Pending Appeal (shortened time) filed by Southeast Alaska Conser- vation Council, Sierra Club, Lynn Canal Conservation. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Schane, Demian) (Entered: 08/23/2006) eK AK KK 22a APPENDIX C RESPONSE TO COMMENTS DOCUMENT FOR FINAL RULE AMENDING THE ENVIRONMENTAL PROTECTION AGENCY'S AND U.S. ARMY CORPS OF ENGINEERS' CLEAN WATER ACT SECTION 404 DEFINITIONS OF "FILL MATERIAL" AND "DISCHARGE OF FILL MATERIAL" May 3, 2002 23a TABLE OF CONTENTS I sail icceneies carted biechinapeietindaibedd ladasibecmseti 1 lcci idepan duincsauiinodinle ek ae A. April 2000 Proposal............. > Access Roads 22.8 22.8 28.9 28.9 28.9 Tailings Facility 113.4 50° 86.1° 86.1¢ 86.1° Stormwater De- tention/Sediment 75 7.6 a” ma af Ponds Laydown Area 08 0.8 5 5 5 Borrow Site(s) 54.7 36.6 84 84 84 Brae paces 93 93 16 16 16 Personne] Camp’ 6 6 NA NA NA Batch Plant 13 1.3 NA NA NA ell si 6 6 6 6 6 — a Temporary Temporary 36.3 36.3 36.3 Upper Portals 6 6 BY em Bi me ema - -" - 88 19 Inundation (during opere- NA NA NA 112 NA tions only) a insite 268.6 187.1 196.6 216.6 197.4 * Located underground. » Isotainer storage included in laydown area, process area, and marine facility acreages * Figure includes 33-ecre DTF, 6-acre berm, and 10-acre staging area. op igure includes pipeline a» ws. (vad and cutoff road. ® Figure is included in the ps se area acreage * Not required because o Jualin access tunnel ® figure included in DTF acreage. NA = Not applicable. 180a Raasgon Oats Propet Ptnas SES mt} Se on} Da Ns WS a [% as 1 ae WAU) ) Se LOIR Bs i ‘ x Su ALN oe (ASS Ne \\ o | \Y al ot i my ‘3 NURS SOR Vy y, e oN) ee Pee 4 Jy F) 4 hee: Poa e &, ‘Ak PERERA rhe - . \ pve: " 4 ” ‘ “Peso ed * “ ~ . oe i = FIOURE 2-1. OVERALL LOCATION OF FACILITIES BEST AVAILABLE COPY 18la [ | Ste eee ue Aa A. ed tee 4 NY we FIGURE 24 ALTERNATIVES 6, C, AND D, JUALIN PROCESS ARIA 2.2.2 Alternative Al: Reduced Mining Rate DTF Alternative Al represents one possible development scenario if the No Action Alternative was selected under current economic conditions. It is included to provide a mechanism for comparing all alternatives under a similar development scenario. Because AIl- ternative A represents an approved Plan of Operations, the limited mining scenario under Alter- 182a native Al could not be imposed on the company if the No Action Alternative was selected. Alternative Al would result in 4.5 million tons of tailings being placed in the DTF, assuming that 40 percent of the tailings would be backfilled. As de- scribed under the selected alternative in the 1997 ROD and as Alternative A in this analysis, the DTF would be constructed in three phases, each of which would use a separate cell within the DTF footprint. The size of the DTF under Alternative Al is assumed to be the same as that proposed for the first cell un- der Alternative A (40 acres, including 6 acres for the structural berm). The analysis assumes a distur- bance footprint of 50 acres during development of the DTF to allow room for staging of the dewatering op- erations and material stockpiles. This staging would have occurred within the full DTF footprint under Alternative A. The reduced mining rate presented under Alternative Al would produce very limited amounts of waste rock. Because waste rock would not be available for use in DTF construction under Alternative Al, the impact analysis assumes that the same number of acres of sand and gravel borrow area as that under Alternative A would be required. The analysis also assumes that about half of the coarse and fine till borrow area would need to be developed to support construction of a smaller DTF. Other as- pects of Alternative Al, including transportation of employees and materials, would be the same as those described under Alternative A. The life of the opera- tion would be reduced to 10 years following 2 years of construction. 2.2.3 Alternative B: Proposed Action Alternative B reflects:a number of changes to the mine plan associated with the No Action Alternative. 183a These changes include constructing an underwater TSF within Lower Slate Lake, relocating milling op- erations to the Johnson Creek drainage, and eliminating the personnel camp. The operation would mine a smaller amount of ore with a higher average gold concentration compared with that pro- posed under Alternative A. Alternative B would include the development of a tunnel to connect the Kensington and Jualin areas of the mine. Access to the site would be from marine terminals built in Slate Creek Cove and at Cascade Point. A daily crew shuttle boat service would transport employees to and from the project site. The TSF would be sized to accommodate the disposal of 4.5 million tons of tail- ings. Borrow areas would need to be developed for construction of the TSF dam and roads. The produc- tion rate would be approximately 2,000 tons of ore per day. This alternative includes recycling water from the TSF to the mill circuit. Alternative B would require upgrading the 5-mile-long access road, con- structing a 3.5-mile pipeline access road, and constructing a 1-mile cutoff road connecting the other two roads. 2.2.4 Alternative C: Dock Location and Design / Diversion Alternative C would include a dock in Echo Cove, approximately 0.75 mile north of the existing Echo Cove boat ramp. Mine workers would use this dock to reach the crew shuttle that would deliver them to the dock at Slate Creek Cove. The landing craft ramp at the Slate Creek Cove marine terminal would be eliminated, minimizing the amount of fill in the in- tertidal areas. Alternative C would not include recycling water from the TSF and the mill circuit. The “no recycle" aspect was included in Alternative C 184a at the request of the operator to address the possibil- ity that the operator might be granted an exemption from the regulatory requirement at 40 CFR Part 440 that process water must be recycled. This alternative would also include diversion channels to direct the flow from Mid-Lake East Fork Slate Creek and over- land runoff from undisturbed areas around the TSF. The diversions would require a dam on Upper Slate Lake to maintain water levels in the diversion suffi- cient to reach the spillway at the TSF dam. The diversion would discharge to a spillway at the top of the TSF dam. The purpose of the diversion, would be to minimize the volume of fresh water in contact with the tailings. The remaining project components, including the production rate of 2,000 tons per day of ore and the access tunnel, would be the same as those under Alternative B. 2.2.5 Alternative D: TSF Water Treatment and Pipeline Diversion Alternative D includes a modified TSF design. A dam would be constructed in Mid-Lake East Fork Slate Creek, and it would gravity-feed a diversion pipeline. TSF water would be pumped to a reverse osmosis treatment system. The treatment plant effluent would discharge into the diversion pipeline, which would flow to East Fork Slate Creek below the TSF dam. Once tailings disposal was complete, the tail- ings would be capped with native material unless the operator can demonstrate that uncovered tailings would not cause toxicity throughout Lower Slate Lake after closure. The remaining components would be same as those of Alternative B. 185a 2.3 PROJECT COMPONENTS STUDIED IN DETAIL 2.3.1 Project Location/ Duration Figure 2-1 shows the location of project facilities, which would be built on National Forest System lands as well as private land (dark shading). Under Alternative A, the facilities would be contained within watersheds draining to Lynn Canal. The process area would be near the Kensington 850-foot portal and would consist of the mill, warehouse buildings, maintenance shop, administrative offices, and laboratory. The personnel camp would be near the wastewater treatment plant, downslope of the process area. Under Alternatives B, C, and D, por- tions of the operation (waste rock disposal and wastewater treatment of the mine drainage) would remain within the Sherman Creek drainage; how- ever, facilities would also be built in the Johnson Creek and Slate Creek drainages, within the Bailers Bay watershed. Under Alternatives B, C, and D, the facilities mentioned above would be moved to an area above the historic Jualin Mine (Figure 2-5) consist- ing mostly of patented mining claims (private land). The personnel camp would be eliminated. Under Alternative A, the active life of the project would be at least 12 years based on the existing re- serve, following a 2-year construction period. Alternative Al would have an active life of 10 years following a 2-year construction period. Mining opera- tions lasting 10 years are projected under Alternatives B, C, and D, following an 18-month con- struction period. 186a 2.3.2. Mining Methods The proposed mining methods are similar to those presented in the 1997 Approved Plan of Operations. The following discussion provides a brief summary of mining methods based on details provided in the 1992 FEIS. The reader is referred to pages 2-5 through 2-7 of that document for additional details. Under Alternatives A and Al, the ore body would be accessed by the existing tunnel at the Kensington 850 portal. Under Alternatives B, C, and D, the Jualin tunnel would be used as the primary access for workers and materials into the mine, as well as ore haulage between the mine and mill. The Jualin tunnel would be 18 feet wide by 15 feet high to ac- commodate 40-ton haul trucks. On the Jualin side, the portal would be near the mill at an elevation of 1,050 feet. From the portal, it would slope downward at a grade of 1.5 percent for 5,000 feet toward the ex- isting Kensington tunnel, which it would intersect at an elevation of 932 feet. The tunnel would be driven from both sides to reduce the duration of the pre- production development period and to eliminate the need for a ventilation raise to the surface. The esti- mated schedule for completing the tunnel is about 150 days. The Kensington ore body consists of a dense pattern of quartz veins and veinlets that extend from the surface to a depth of approximately 3,000 feet. The ore zone averages approximately 60 feet wide but ranges in width from 22 feet to more than 165 feet. The ore body is irregular in shape and erratic in the distribution of gold content. Coeur selected a mining method called the long-hole, open-stope technique on the basis of a number of factors, such as the spatial 187a and physical characteristics of the deposit, econom- ics, and environmental considerations. The long-hole, open-stope technique is employed in situations where ore occurs in wide and steeply dip- ping vein deposits. Mining would progress throughout the ore body as dictated by mine design, stope size, backfilling sequence, and other key ele- ments that maximize extraction of the mineral resource. The long-hole, open-stope method allows for flexibility in handling irregular ore body widths and allows efficient removal of ore. It also allows safe working conditions while using a minimal workforce. Figures 2-13 and 2-14 depict the extent of the mine workings under Alternatives Al , B, C, and D in rela- tion to the ground surface and surface water drainages, respectively. The operation under all the alternatives would mine the Kensington ore body. Alternative A proposes to process ore at a rate of 4,000 tons per day (tpd) and produce approximately 26 million tons of tailings over the life of the mine. The DTF would be sized to hold a maximum of 20 million tons, and 25 percent of the tailings would be backfilled. Under Alternatives Al, B, C, and D, a smaller portion of the same ore body would be mined at a rate of 2,000 tpd. The 2,000-tpd operation would target smaller quantities of higher-grade ore (ore with a higher gold content) than the operation proposed under Alternative A. Operations under Alternative Al, B, C, or D would produce a total of 7.5 million tons of tailings over the life of the mine: 4.5 million tons (60 percent) would be disposed of in the TSF (or the DTF in the case of Alternative Al), and 3 million tons (40 percent) would be backfilled. 188a 2.3.3 Waste Rock Disposal Waste rock is material encountered during the min- ing process that has a gold content less than that economically recoverable. During operations, waste rock would be hauled to the surface for storage, use, or disposal. Under Alternative A, waste rock would be used as foundation, drainage, and berm material in construc- tion of the DTF. A 15-acre temporary stockpile would be located near the mine opening for the first 3 to 4 years while the DTF was being developed. Once the DTF became active, the demand for waste rock would essentially equal production; that is, all waste rock would eventually be used in the DTF. Section 2.3.3 of the 1997 SEIS provides a more detailed dis- cussion of waste rock management under Alternative A. Very little waste rock would be produced under Alternative Al. Under Alternatives B, C, and D, most of the waste rock would be generated in the process of developing the access tunnel between the Kensington and Jualin portals. This tunnel would not be developed under Alternative A or Al. The waste rock would be hauled by truck to a 31.5-acre permanent disposal site near the Kensington 850-foot portal. There would also be capacity to store approximately 500,000 tons of waste rock on 4.8 acres in the vicinity of the process area at Jualin. Under all alternatives, waste rock could also be placed underground as part of the back- fill process. 189a PIGURE 344 UNDERGROUND MIME WORSDNDS URDER ALTERNATIVES i] . TO GURFACE WATER At, 8, C, ANDO 2.3.4 Ore Processing Ore processing refers to the methods by which gold is separated from the surrounding material. The steps in ore processing would be nearly the same under all alternatives; the only difference would be the loca- tion of the processing facilities. Processing steps include crushing, grinding, flotation, thickening, and filtration. Under Alternatives A and Al, crushing would take place underground and all the other steps would be conducted in buildings. Under Alternatives B, C, and D, all steps would be done in buildings. Table 2-4 summarizes the chemicals and materials used in the milling process under each alternative. 190a Table 2-4 Chemical and Material Use Approximate Daily Use (tons) Milling Reagent Container Alternatives Process | or Material (Shipping and Storage Alternative A JAL, B, C, and D Crinding |Steel balls 10 ton steel bins 56 465 Potassium amy! xanthate [50-gallon drum 1 0.5 MIBC (frother) 50-gallon drum 0.4 0.2 Flocculant 1-ton Flo-bin 0.2 0.1 Flotation |Polymer 50-gallon drum 0.02 0.01 Surfactant 50-gallon drum 0.04 0.02 [Seale inhibitor ~~"160-gallon drum na ay an Lime* 1,000-1b bags 2 1 * Lime is also used in concentrate thickening. The mill would be located at the Kensington process area under Alternatives A and Al and at the Malin process area under Alternatives B, C, and D. In each case, ore would be hauled from the active mining area and dumped down an ore chute. The material would then be sent through the primary crusher, which would reduce the size of the ore to less than 6 inches. The crushed ore would then be hauled by truck to the coarse ore stockpile at either the Ken- sington side (Alternatives A and Al) or Jualin side (Alternatives B, C, and D) of the operation. There, the ore would be fed into a hopper with a vibrating feeder and then onto a belt that would discharge into a semiautogenous grinding (SAG) mill. The SAG mill would be set up in a closed circuit with a horizontal vibrating screen and a ball mill. Over- sized material would be fed back into the SAG mill, while undersized material (minus 100 mesh) would be directed to hydrocyclones. Hydrocyclones use cen- trifugal force to separate coarse material from fine material. The heavy material (underflow) from the cyclones would be directed to a gravity concentrator used to recover coarse gold. Lighter materials from the cyclones would be fed back to the cyclone circuits, eventually overflowing from the cyclones to a condi- tioning tank feeding the flotation circuit. 19la The flotation process would involve separating the gold from the barren material in a froth flotation. A slurry would be fed from the cyclones to the condi- tioning tank, where conditioners (e.g., potassium amyl xanthate) and frothing agents would be added. These materials would cause the sulfide and tellu- ride minerals (both gold-bearing) in the slurry to attach to air bubbles once air was pumped through the system. The bubbles containing the mineralized portion of the slurry, including the gold, would form a froth on top of the flotation tank. The gold-bearing froth would then be skimmed off and collected. This "concentrate" would flow through additional flotation tanks to further concentrate the gold. The flotation process would separate approximately 93 to 96 per- cent of the non-gold material from the ore fed into the system, leaving 160 to 280 tons (under Alterna- tive A) or 80 to 140 tons (under Alternatives Al, B, C, and D) of flotation concentrate per day. Most of the chemicals added to the system would stay in the flotation tanks or be removed with the flotation con- centrate as opposed to being discharged with the tailings. Most of the metals associated with the ore body would be removed from the system with the gold concentrate. Following the final flotation, the concentrate would be dewatered before being placed into specialized 8- foot by 8-foot by 20-foot sealed marine transport con- tainers for shipment to an _ existing, off-site processing facility outside Southeast Alaska. Under Alternative A the average production would be ap- proximately 1,400 tons (40 containers) of concentrate per week. The production level would average ap- proximately 700 tons (20 containers) of concentrate per week under Alternatives Al, B, C, and D. 192a 2.3.5 Tailings Disposal Tailings are the material that remains in the flota- tion tanks once the gold-bearing material has been removed. This Final SEIS evaluates two methods of tailings disposal. Under Alternatives A and Al, tail- ings would be placed in the DTF. Alternatives B, C, and D would employ wet (underwater or subaqueous) tailings disposal methods in the TSF constructed in Lower Slate Lake. Under all the alternatives, the op- erator would backfill some of the tailings to permit the maximum extraction of the resource and provide structural stability within the mine. Under Alterna- tive A, the operator would backfill at least 25 percent of the tailings generated. Under Alternatives Al , B, C, and D, the operator proposes to, backfill at least 40 percent of the tailings generated over the life of the operation. Dry Tailings Disposal The following discussion is taken from Section 2.3.6 (pages 2-20 through 2-22) of the 1997 SEIS. Addi- tional detail on the DTF can be found in that document. Under Alternatives A and Al, the DTF would be constructed using methods similar to the construction of landfills. The slurry would be thick- ened to approximately 55 percent solids. The thickened slurry would be moved from the mill to the DTF through an 8,000-foot, gravity-fed pipeline. The pipeline would be built within the footprint of the haul road for most of its length. The pipeline would be approximately 14 inches in diameter with a 20- inch casing for spill containment. At the DTF the tailings would be dewatered, using plate filters (or the design equivalent), to a moisture content of 5 to 18 percent. The filter cake would then be loaded into trucks and placed in the DTF. 193a The DTF would be constructed in a series of three stages or cells. Before placement of the first lift of each cell, a series of foundation drains would be in- stalled to form the base. The drains would be laid out in a herringbone pattern and consist of gravel wrapped in geotextile material. A minimum of 2 feet of waste rock or development rock would be placed over the drains. Each cell would consist of five to seven lifts, each 28 feet high. Tailings would be placed (unconsolidated) into the 28-foot lifts followed by 1 foot of compacted, low-permeability fine till and 1 foot of waste rock to provide a cover and working surface. Stockpiles of waste rock to be used in DTF construction would be placed within the footprint of the next cell. The final cover for the facility would consist of 6 to 8 feet of coarse and fine till. The un- derlying fine till layer would serve as a capillary break, and the overlying coarse till would promote infiltration and drainage. Growth media would be placed on the coarse till to support revegetation. To ensure that tailings placed into the DTF did not contain excess moisture, there would be no tempo- rary storage at the process area or the dewatering area. Tailings would be placed directly into the DTF or backfilled. The operation would generally expose less than 5 acres of tailings to direct precipitation at any one time (before concurrent covering and revege- tation), as illustrated in Figure 2-15. An engineered structural berm would be constructed around the north, south, and west sides of each cell to increase the stability of the facility. The berm would be constructed of waste rock, compacted tail ings, or other suitable material. The berm would extend to a height of approximately 100 feet along the west slope and 50 feet along the north and south 194a slopes. Under Alternative A, the DTF, including the berm, would ultimately cover 113 acres and have a capacity of 20 million tons of tailings. Under Alterna- tive Al, the DTF would cover approximately 40 acres and be able to store 4.5 million tons of tailings. Subaqueous Tailings Disposal Under Alternatives B, C, and D, tailings would flow by gravity as a slurry from the mill facility located on private land near the Jualin Mine portal to the TSF at Lower Slate Lake through a 3.5-mile pipeline (Figures 2-5 and 2-6). The pipeline would be double- walled, high-density polyethylene (HDPE), approxi- mately 6 inches in diameter. Flow sensors with automatic shutdown mechanisms would be used to detect any blockages or breaks in the system. Before the slurry left the mill, a polymer and floccu- lant would be added to agglomerate the small particles and enhance settling once the tailings were deposited into the TSF. The polymers and flocculants are not toxic and would have no effect on water qual- ity beyond their capability to improve the efficiency of settling out fine material. The tailings slurry would be discharged into the TSF through perfora- tions in a portion of the tailings delivery pipeline submerged in the TSF. A portion of the perforated segment of the pipeline would always be above the bottom of the TSF, allow- ing the tailings to flow freely from the pipe. The perforations would be very large in comparison to the size of the tailings particles to prevent the tailings from clogging the pipeline. Valves would be placed in the delivery pipeline to allow for maintenance or re- location of the tailings discharge point (perforated pipe). The tailings pipeline would be moved periodi- cally to ensure equal distribution of the tailings. 195a Under Alternative B, water from the slurry transport of tailings and natural inflow from the drainage ba- sin would maintain a relatively consistent lake volume and thus provide water cover for the tailings. The tailings would be deposited to a final elevation of 704 feet with a constant cover of at least 9 feet of wa- ter. Figures 2-16 and 2-17 provide an overview of biological activity in Lower Slate Lake before and af- ter mining operations. The maximum depth of the tailings at closure would be approximately 120 feet. The operational details of the facility at the initial dam construction stage (705 feet) have yet to be de- termined. Water would be recycled from the TSF for reuse in the process facilities at an average rate of 100 gallons per minute (gpm). Under Alternative C, all natural inflows from the channel between the two lakes (Mid-Lake East Fork Slate Creek; see Figure 3-3) and the drainage areas surrounding the TSF would be diverted around the TSF. In this case, natural flows would be captured in diversion ditches, carried around the north and east shores of the TSF, and discharged to a drop structure constructed at the TSF dam spillway. Water from the TSF would not be recycled under Alternative C. Under Alternative B, a drop-structure spillway would be installed at the east abutment of the dam to direct discharge from the TSF to East Fork Slate Creek. An energy dissipater at the bottom of the spillway would allow the water to flow into East Fork Slate Creek without affecting the downstream velocity in the creek. Operationally, water would be pumped from a clear portion of the pond, away from the tailings discharge, to the spillway inlet for dis- charge. The operator would manage the TSF so that the water is maintained at a steady level. This ap- 196a proach would maintain flow-through conditions so that releases from the TSF would be roughly equiva- lent to the natural inflow to the lake from natural sources. Under Alternative C, the discharge from the TSF would be pumped to the diversion channel, where it would combine with the natural flows in the diversion channel before flowing into East Fork Slate Creek below the embankment. Upon completion of mining operations, the lake ecosystem would be rees- tablished at its new level and flows would passively discharge through the permanent embankment spillway. * KKK KK 2.3.6 TSF Dam Construction The TSF would be formed in part by the natural lake basin at Lower Slate Lake and a dam constructed at the outlet of the lake. The dam would be a concrete- faced rockfill dam constructed in two phases. During operations, the dam of the TSF would be 90 feet tall and approximately 500 feet long. The TSF would be sized to accommodate 4.5 million tons of tailings. Figure 2-19 shows the TSF dam. The phased ap- proach to constructing the dam would allow tailings disposal to begin once the first stage of the dam was completed. The second stage would be built while mining operations and tailings disposal were active, likely 4 to 5 years into the process. * KK * KK K 4.9.3 Effects Common to Alternatives B, C, and D Under Alternatives B, C, and D, mine drainage would be treated the same as under Alternative A. However, most operations would occur within the Johnson Creek drainage (access roads and process 197a area) and the Slate Creek drainage (access roads and the TSF). The same indicators as described under Al- ternatives A and Al were used to compare the potential impacts. Integrity of Freshwater Habitat Alternatives B, C, and D would require a stormwater diversion channel above the Jualin Mine portal and process area bench and would discharge to Johnson Creek. Stormwater discharged from the diversion would not affect fish or other aquatic organisms. Alternatives B, C, and D include tailings disposal in Lower Slate Lake through a slurry pipeline from the mill. For the purposes of this analysis, it is expected that all fish and most other aquatic life (such as macroinvertebrates, periphyton, and zooplankton) in Lower Slate Lake would be lost during operations as a result of this action. Some individuals might sur- vive, but marginal food sources and the lack of suitable habitat as the lake elevation rises appear to be the major limiting factors. Two species of fish are present in Lower Slate Lake: three-spine stickleback (a forage fish) and Dolly Varden char (a sport fish). Estimates of mortality based on the survey completed in 2001 indicate ap- proximately 1,000 Dolly Varden char could be lost because of the tailings disposal in Lower Slate Lake (Kline, 2003a). The Dolly Varden char in Lower Slate Lake appear to be small and exhibit slow growth, ac- cording to a comparison of the literature on other Dolly Varden char in Southeast Alaska lakes (Kline, 2003a). As discussed in Section 3.9.2, the number of three-spine sticklebacks in Lower Slate Lake has not been defined, although it is likely greater than the number of Dolly Varden char. The entire population 198a of three-spine sticklebacks could be lost during op- erations. Placement of tailings in Lower Slate Lake would raise the lake level to the point that most of both channels of Mid-Lake East Fork Slate Creek would become inundated. Kline (2003c) indicated that there is no evidence that Lower Slate Lake Dolly Varden char spawn in Mid-Lake East Fork Slate Creek. Dolly Varden char have been captured in this system in June, August, September, and October. In the ac- cessible reaches of Mid-Lake East Fork Slate Creek, an average of seven Dolly Varden char were captured in each sampling effort. Of the fish captured in this system, 90 percent have measured less than 5.5 inches in total length. These fish represent the lower 50 percent of the Dolly Varden char hi the Slate Creek system and are thus unlikely to include sexu- ally mature fish. This lack of evidence of stream spawning is not sufficient to rule out the possibility that some stream spawning occurs; however, in this case, it appears very limited. Mortality of macroinvertebrates and other aquatic organisms would also occur in close proximity to the deposited tailings. As the water level in the TSF rose, lakeshore vegetation would become inundated and provide new microhabitat and detritus for colo- nizing macroinvertebrates. Generally, macroinverte- brate species adapted to highly variable stream envi- ronments are better able to tolerate change than those in more stable lake and pond environments (Mackie, 1998). Impacts on species abundance and diversity resulting from catastrophic substrate loss or degradation are well documented. Reports of heav- ily disturbed streams indicate that macroinverte- brate recovery can occur within time frames ranging 199a from months to a few years (Appendix C; Hill, 1975; Gore, 1985; Thomas, 1985), though responses can vary for individual species (Minshall, 1982). Figures 2-16 and 2-17 provide overviews of Lower Slate Lake before operations and after closure. As discussed below under Sedimentation and in Appen- dix C, toxicity tests show that the tailings might not provide suitable habitat for macroinvertebrates. Over the long term, as natural materials redeposit throughout the lake, the larger shallow/productive areas should increase the available habitat (and cor- responding fish and macroinvertebrate populations). In the proposed reclamation plan, after mine closure the lake would have at least an equivalent area of plant and shallow water macroinvertebrate habitat that is not covered by tailings. It is therefore as- sumed that post-closure habitat should be adequate to support a macroinvertebrate population at least comparable to the pre-mining population. The work completed to date demonstrates that the TSF can be restored to at least equivalent habitat and fish populations after closure. The operational monitoring described in Section 2 would be used to further refine and optimize the reclamation plan. These data would be reviewed by the Forest Service and ADNR, which would approve and oversee im- plementation of the final reclamation plan.. As required by the ADNR ‘Title 41 permit, downstream fish passage would have to be provided at closure from Upper Slate Lake through Lower Slate Creek to East Fork Slate Creek below the lakes. Upstream fish passage would not be restored from East Fork Slate Creek below Lower Slate Lake to Lower Slate Lake. 200a The existing Jualin access road would be maintained as the primary access to the mine under Alternatives B, C, and D. The road would be upgraded as needed to suit construction and operational requirements and extended from Jualin to the proposed mine por- tal using appropriate Forest Service BMPs. This road has two stream crossings over Johnson Creek. Exist- ing bridges would be upgraded. Construction would be consistent with Forest Service standards and guidelines (TRAN214), including the use of erosion control and stabilization measures. The installation or improvement of the bridges would also be done under ADNR Title 41 permits that would address impacts on fish habitat. * * KK K OK Sedimentation Sediment resulting from road construction and im- provement and, to a lesser extent, from mine operation could be carried into the Slate and Johnson Creek drainages. Impacts on the stream systems from these relatively minor amounts of sediment from construction-related activities would be similar to those described under Alternative A. Under Alternatives B, C, and D tailings would be de- posited subaqueously into the TSF. AScl Corporation (2000a, 2000b) conducted habitability tests using several amphipods on shallow and deep Lower Slate Lake sediments, a control lake sediment, and sedi- ment composed of Kensington Mine tailings. AScl Corporation (2000a, 2000b) conducted tests using Hyalella azteca and Chironomus tentans in the vari- ous sediments to determine effects on survival, growth, emergence, and egg production. Results of the habitability tests on Hyalella azteca indicated 201la the control lake sediments and Lower Slate Lake sediments (both shallow and deep) supported accept- able growth as defined by weight and length. The tailings sediment sample caused a statistically sig- nificant reduction in the survival of Hyalella azteca when compared with the control lake sediments and Lower Slate Lake shallow and deep sediments. Spe- cifically, the survival of Hyalella azteca was as follows: e 83 +13 percent in control lake sediments ¢ 76 + 22 percent in Lower Slate Lake deep sedi- ments e 62 + 28 percent in Lower Slate Lake shallow sediments e 5+ 8 percent in tailings sediments The suggested USEPA minimum survival rate of Hyalella azteca for a 28-day sediment exposure is 80 percent. The effect of the tailings sample on Hyalella azteca reproduction could not be determined because of low survival in the tailings sample after 28 days. Results of the habitability tests on Chironomus ten- tans indicated that the control lake sediments, Lower Slate Lake sediments, and tailings supported accept- able 20-day growth. Samples from shallow Lower Slate Lake and deep Lower Slate Lake and tailings samples supported emergence rates of 85 percent, 53 percent, and 43 percent, respectively, showing a sta- tistically significant reduced emergence rate of Chironomus tentans when compared with the control lake sample and shallow Lower Slate Lake sedi- ments. USEPA recommends a minimum endpoint of 50 percent for emergence. These results indicate that mortality of and repro- ductive effects on Hyalella azteca and Chironomus 202a tentans that attempted to recolonize the deposited tailings would occur as a result of subaqueous tail- ings deposition in the TSF. It is likely that similar effects on other macroinvertebrates and aquatic in- sects would occur. Appendix C shows that the sediment is not toxic to fish populations. However, the reduced number of macroinvertebrate and aquatic insect forage species might indirectly affect post-deposition fisheries populations. As discussed previously, it is assumed that the majority of the fish and other aquatic life in Lower Slate Lake would be lost during operations as a result of tailings disposal. Some individuals might survive, but limited food sources and the lack of suitable habitat as the lake elevation rose appear to be the major limiting fac- tors. At closure, the shallow aquatic habitat that is not covered by tailings should support near-term resto- ration of the macroinvertebrate and fish populations in the lake. Modeling shows that the tailings would not generally resuspend and redeposit over the natu- ral sediment areas (Appendix C). Finally, some uncertainty is associated with these analyses, including the tailings toxicity test results. Reasonable "worst-case" assumptions, however, have been made here and in Appendix C in presuming that all aquatic life would be lost in the TSF during operations and that the tailings would not support macroinvertebrates after closure (Tetra Tech, 2003b). As additional test and operational data became available, the mine operator would modify tailing deposition procedures and the reclamation plan to maximize opportunities for improving aquatic re- sources in the lake. KKK KK 203a Functional Losses. The predominant wetland types that would be affected by Alternatives B, C, and D are forested and emergent wetlands. Forested wet- lands at the outlet of Lower Slate Lake received high functional ratings for wildlife habitat, carbon/detrital export, and fish habitat. They received moderate rat- ings for sediment/shoreline stabilization and nutrient cycling. Emergent wetlands within the vi- cinity of the proposed process area received moderate ratings for all functions except groundwater inter- change (low). Wetlands in the vicinity of the Slate lakes and Spectacle Lake form a large forest and emergent wetland ‘system. This area would experi- ence approximately 23 acres of impacts under Alternative B, almost 35 acres under Alternative C, and 25 acres under Alternative D. The for- ested/emergent system provides high levels of wildlife habitat and moderate values for fish habitat, nutrient cycling, carbon/detrital export and sedi- ment/toxicant retention. Of the additional affected acres under Alternative C, the inundation of 11 acres around Upper Slate Lake would occur only during the life of the project. These wetlands would be ex- pected to reestablish once the water levels receded. Construction and operation of the TSF would result in the permanent loss of 23 acres (13.5 acres of for- ested wetlands and 9 acres of emergent wetlands). The direct loss of function would result from the placement of fill, burial by tailings, or inundation. With the exception of the areas inundated by the TSF or buried by the dam, impacts on forested wet- lands would remain in place through the duration of operations and would begin recovery with reclama- tion. The loss of the habitat function would not occur simply as result of construction and operation of the project because the presence of humans and equip- 204a ment would likely affect the habitat values well be- yond the direct impacts on, forested wetlands. The loss of hydrologic functions of the DTF began. Under Alternative A, some of the palustrine forested and scrub-shrub wetlands in other portions of the project area would become emergent or aquatic bed wet- lands (borrow areas), while others would be encouraged to return to their pre-mining form follow- ing reclamation. Alternative Al would have proportionally fewer impacts on wetlands in the ter- race area because of the reduced footprint of the DTF. By comparison, Alternatives B, C, and D would affect substantially fewer acres of wetlands but would af- fect a greater number of wetland types, including palustrine emergent, palustrine aquatic bed (Upper Slate Lake), and lacustrine (Lower Slate Lake). Lower Slate Lake provides high values for fish habi- tat, high values for wildlife habitat, and moderate values for nutrient cycling and carbon export. Upper and Lower Slate lakes provide aquatic habitat for the Dolly Varden char, three-spine sticklebacks, and benthic organisms that inhabit the lake. In addition, the lake margins support the wide variety of wildlife in the area, including moose and Vancouver Canada geese. Not all functions provided by the lakes would be lost during construction and operations; however, the value for fish habitat is assumed to be lost for the duration of operations and the value in terms of wild- life habitat wouid be reduced at a minimum. Nutrient cycling and production export values would aiso be lost during operations. The diversity in form provided by the palustrine emergent wetlands pro- vides moderate wildlife habitat values and sediment retention, as well as high values for flood flow altera- tion. The forested wetlands would provide values 205a similar to those associated with Alternatives A and Al. Impacts on the emergent, forested, and shrub- scrub wetlands would remain at least through the duration of operations; the extent of recovery follow- ing reclamation would depend to a great extent on the extent of fill removal and reestablishment of wet- land hydrology. Alternative C would also affect Upper Slate Lake (palustrine aquatic bed) during operations. The effect of losing or reducing the functions of both lakes si- multaneously during operations would _ be substantially greater than the effects on Lower Slate Lake alone under Alternatives B and D, including the loss of nutrient cycling, and production export and loss/reduction in value of habitat for fish (see Section 4.10) and wildlife (see Section 4.11). Upper Slate Lake and the wetlands surrounding it would recover from the impacts from inundation after rec- lamation; however, the recovery of emergent and submergent wetland vegetation along the margins of the lake would take years, with herbaceous vegeta- tion recovering first, followed by shrubs and trees. * * Kk Ke OK K Appendix C Ecological Risk Assessment of Aqueous Tailings Disposal at the Kensington Gold Mine * KK KK KK 4.3.3 pH Only direct exposure of aquatic receptors to water is considered an issue for pH in the ERA. In general, the scientific literature on pH is concerned with low- pH conditions rather than high-pH conditions. As a result of the milling process, the tailings decant wa- 206a ter has high pH levels (Table 3.1). The Gold Book (USEPA, 1986) lists a pH range of 6.5 to 9.0 for aquatic life, though there is no support provided for the upper value of 9.0. McKean and Nagpal (1991) report that a high pH (>9.5) can disrupt ammonia excretion across the gill epithelium and that a pH of more than 10.2 results in salmonid mortality. 4.3.3.1 Worst-Case Water The decant water has a pH of approximately 10, which is above the protective concentration pH range of approximately 6-9 for aquatic life. Although a pH of 10 would likely pose a risk to aquatic biota in the TSF, elevated pH levels are expected to occur only in the immediate vicinity of the tailings pipe outfall and perhaps in the pore water of small spatial areas around the outfall. The LSL volume of at least 1.4 x 10° gallons would be orders of magnitude greater than the projected daily tailings input of 2.1 x 10° gallons per day (148 gallons per minute [gpm]). 207a APPENDIX J 2"" HEP? ww su. er 7 SEPA USDA Fores Service, Tongass National Forcss Cooperating Agencies US Eavuanmenta! Protection Ageucy, Region 10 US Army Corps of Enginecrs, Alaska Dnurict pe A Alaska Department of Natural Resources Prepared by Tears Tech. Inc 14° Unie Dowewant Rite 1010 Lakewood, OD 802.28 December 2004 PECT AVAIL ADIEC COADV 208a Record of Decision USDA FOREST SERVICE Kensington Gold Project Juneau Ranger District Tongass National Forest Decision to be made This Record of Decision documents my selection of an alternative that will be used to amend the 1997 Plan of Operations for the Kensington Gold Project. My decision is based on the analysis and evaluations in the 2004 Final Supplemental Environmental Impact Statement (FSEIS) as well as information incorpo- rated by reference from the 1997 FSEIS and ROD and the 1992 FEIS and ROD. While the 2004 FSEIS considers and discloses all di- rect, indirect and cumulative impacts related to this project, regardless of land ownership or jurisdiction, my decision addresses only those project components subject to my authority over National Forest System lands. Other Federal and State agencies and the City and Borough of Juneau have authority to issue spe- cific permits on National Forest System lands and elsewhere. In particular, both the Environmental Protection Agency and the U.S. Army Corps of Engi- neers have yet to exercise their permitting authority over this project and have indicated their intent to issue separate Records of Decision based on this FSEIS. The State of Alaska will also rely on much of this analysis to approve activities on state lands and issue applicable permits. Implementation of my deci- 209a sion to select an alternative is subject to the comple- tion of those necessary permit processes by the other federal, state, and local authorities. As part of this decision I will also consider recom- mendations from an interagency team to modify three small Old Growth Habitat reserves located in the project area. Background The Kensington Gold Project is an underground gold mine located approximately 45 miles_ north- northwest of Juneau, Alaska. The recent history of the Kensington Gold Project began in 1990 when the Kensington Venture (a joint venture between Coeur Alaska, Inc. [Coeur] and Echo Bay Exploration) submitted plans to the Forest Service to develop the Kensington mine. The Forest Service completed the Kensington Gold Project Final Environmental Impact Statement (1992 FEIS) and Record of Decision (ROD) in 1992 to consider and disclose environmental im- pacts that could arise from the project. Alternative F, Water Treatment — Option | was selected as the basis for a plan of operations which was subsequently ap- proved by the Forest Service in July 1992. Alternative F consisted of underground mining, ore processing using cyanide vat leaching, tailings im- poundment in Sherman Creek, marine discharge of process wastewater and various support facilities in- cluding liquefied petroleum gas for power generation. In 1995, prior to obtaining all necessary permits, the joint venture was dissolved and Coeur became the sole stakeholder in the property. Coeur submitted an Amended Plan of Operations to the Forest Service in September 1995. 210a In June 1996 Coeur revised the 1995 Amended Plan of Operations in response to issues raised during scoping and at meetings with state and federal agen- cies. The 1996 Amended Plan of Operations was analyzed in the Kensington Gold Project Final Sup- plemental Environmental Impact Statement (1997 SEIS) and a ROD signed in August 1997 in which Al- ternative D (the No Action Alternative in the current SEIS) was selected. Major project changes approved as part of Alternative D in the 1997 decision included off-site shipment of concentrate rather than on-site cyanide leaching, elimination of the slurry disposal dam in Sherman Creek in favor of a dry tailings dis- posal facility and use of diesel fuel rather than liquefied petroleum gas for power generation. The Forest Service approved an amended plan of opera- tions, consistent with the selected alternative, on May 28, 1998. Coeur obtained all permits necessary for construction from federal, state, and local au- thorities. In 2001 Coeur submitted an amendment to the ap- proved 1997 Plan of Operations for the stated purpose of improving efficiency and reducing the ex- tent of surface disturbance of the approved project. The amended plan proposes a number of changes to the 1997 approved plan, including changing the loca- tion of the processing facilities from National Forest System lands in the Sherman Creek drainage to pri- vate lands in the Johnson Creek drainage near the historic Jualin Mine workings, tailings disposal in Lower Slate Lake, an access tunnel from the mill to the Kensington claims and a daily commute of work- ers via shuttle boat rather than on-site housing with helicopter access. The operation would also mine a smaller portion of the ore body containing a higher average gold concentration than proposed under pre- 2lla vious plans. The amended plan calls for the construc- tion of two marine terminals on state tidelands; one at Slate Creek Cove and one at Cascade Point, adja- cent to lands owned by Goldbelt Incorporated (Goldbelt), an Alaska Native corporation. Goldbelt would own and operate the Cascade Point dock as well as the ferry service between the two marine fa- cilities. See Chapters 1 and 2 of the FSEIS for a more detailed description of the proposed action and alter- natives. The Forest Service directed the preparation of this SEIS using a third-party contractor, Tetra Tech, Inc. The U.S. Environmental Protection Agency (USEPA), U.S. Army Corps of Engineers (USACE), and Alaska Department of Natural Resources (ADNR) participated as cooperating agencies with the Forest Service in preparing the SEIS. The current SEIS was developed to evaluate pro- posed changes to the approved plan of operations which could effect National Forest System, State of Alaska, Goldbelt Native Corporation and private lands. Approval for components not on NFS lands will be accomplished through other state and federal agencies with jurisdiction. This SEIS is intended to supplement the 1997 SEIS and 1992 FEIS. Accord- ing to requirements in the Council on Environmental Quality regulations for implementing NEPA (40 CFR Part 1500), this document analyzes and discloses the direct, indirect, and cumulative impacts associated with the proposed changes to the approved plan of operations. Decision Based on the analysis and evaluation in the SEIS for the Kensington Gold Project, it is my decision to se- 212a lect Alternative D. In conjunction with this decision, I am also approving a non-significant Forest Plan amendment to enlarge three Old Growth Habitat re- serves as recommended by an interagency review team and described in Appendix 1 to this ROD. My decision is based upon the analysis and evalua- tion in this 2004 Final SEIS as well as information incorporated by reference from the 1997 SEIS and ROD and the 1992 EIS and ROD. My selection of Alternative D, as described in the SETS, approves modifications to the 1997 Approved Plan of Operations to include the following: e A Tailings Storage Facility (TSF) will be lo- cated at Lower Slate Lake rather than a Dry Tailings Facility (DTF) near Comet Beach. The TSF will be sized to accommodate 4.5 mil- lion tons of tailings and will ultimately increase the size of Lower Slate Lake from 23 acres to 56 acres. East Fork Slate Creek will be dammed between Upper and Lower Slate Lakes and diverted by pipeline around the TSF. The construction and operation of a wa- ter treatment system for the TSF discharge is authorized as required to meet NPDES permit limits. All discharge waters are required to comply with conditions to be established in a National Pollution Discharge Elimination Sys- tem (NPDES) permit administered by the USEPA. e Surface processing of ore will be done at mill facilities located on patented (private) lands in the Johnson Creek drainage. A floatation process will be used to separate gold from tail- ings and gold concentrate will be shipped off- 213a site for further processing. Tailings will be transported as slurry through a 3.5-mile long pipeline from the mill to the TSF at Lower Slate Lake. Approximately 40% of tailings will be backfilled into underground workings. The existing Kensington and Jualin Mine ac- cess roads will be upgraded to safely accommodate mine traffic. Two new bridges will be constructed on the Kensington access road and two existing bridges will be upgraded on the Jualin access road. A 3.5-mile pipeline access road and a l-mile cutoff road will be constructed. All road construction on NFS land will be subject to Forest Service stan- dards and_- guidelines’ utilizing’ Best Management Practices (BMPs). Dry Tailings Facility (DTF), personnel camp, and mooring facilities located at Comet Beach will be eliminated. A tunnel to connect the Kensington Mine with ore processing facilities on private land near the Jualin Mine in the Johnson Creek drain- age will be built. A permanent waste rock disposal facility at a 31.5-acre site near the Kensington 850-foot portal and a 4.8-acre site near the Jualin Mine process area will be developed. Surface water diversions will be built above the Kensington Mine 850-foot portal and waste rock disposal area, the Jualin process area and mine portal, and the diversion pipe- line around the TSF. 214a e A fresh water infiltration gallery will be con- structed in Johnson Creek, subject to ADNR approval, and a 300,000 gallon tank will be built at the Jualin process area for fresh wa- ter. A water recycle pipeline will be constructed alongside the tailings slurry pipe- line to return process water to the mill. e Diesel fuel delivery, transport, and storage us- ing 6,500 gallon isotainers. Isotainers will be placed in the laydown area at Slate Creek Cove, near power generation facilities, and at equipment fueling areas. All isotainers will be stored in HDPE-lined and bermed storage ar- eas. e The development of two new sand and gravel borrow areas, as well as the continued use of two existing borrow areas, disturbing ap- proximately 7.1 acres will provide construction { materials. Inch ded in the Selected Alternative is my decision to adopt the mitigation and monitoring measures iden- tified Yn the 2004 SEIS as described in section 2.5 that are within the authority of the Forest Service. This incjudes mitigation measures for safety, and the protection of the environment. My decision is also premised upon other permitting agencies adopting the mitigation and monitoring measures identified in the SETS that are within their authority. In the event that the other mitigation and monitoring measures are not adopted, I will review this decision to determine whether any changes are needed. The legal framework applicable to authorizing a large mine requires permits from different federal agencies, each of which must engage in consultation 215a under Section 7 of the Endangered Species Act before the project may proceed. In particular, the mine op- erator must receive a permit under Section 404 of the Clean Water Act from the U.S. Army Corps of Engineers before construction or operation of marine terminals in Berners Bay. The USACE (and the For- est Service) initiated formal consultation under Section 7 and the USACE will not issue any permit for the marine terminals until consultation is com- pleted. The USACE retains full discretionary authority to deny or condition the terminal permits in response to a biological opinion or the identifica- tion of reasonable and prudent alternatives. Therefore, my decision on the plan of operations does not constitute an irretrievable or irreversible com- mitment of resources foreclosing any reasonable and prudent alternatives with regard to the marine ter- minals that might be found necessary to avoid jeopardy to an endangered or threatened species. In addition to a Section 404 permit, the operator must receive Tidelands Leases (Alaska Department of Natural Resources) for construction and operation of marine terminals. Operation of crew transport fer- ries across Berners Bay and barge traffic is subject to National Marine Fisheries Service (NMFS), U.S. Coast Guard, and Alaska Department of Environ- mental Conservation regulation. The City and Borough of Juneau (CBJ) has issued an Allowable Use Permit to Coeur for mining operations and Slate Creek Cove marine facility operation. Goldbelt has received a CBJ Conditional Use Permit for opera- tions at Cascade Point. Rationale for the Decision In making my decision, I considered the many con- cerns raised during the analysis of this project, as 216a well as those raised during the preparation of earlier NEPA documents related to the Kensington Mine. I took into account competing interests and values of the public and included mitigation measures, where possible, to avoid or minimize undesirable effects. All alternatives considered in detail are consistent with Forest Plan standards and guidelines designed to protect resources within the project area. I have carefully reviewed relevant information documented in the SEIS, discussions between cooperating agen- cies, and mitigation measures applicable to the project. Chapter 2 of the SEIS contains a detailed summary of the effects of each alternative both in tabular and narrative form. Based on that review, I believe that the actions described in Alternative D will be permitted by the other regulatory agencies. I have also considered input from USEPA in their December 1, 2004, memo (SEIS — Appendix K) iden- tifying their Environmentally Preferred Alternative (Alternative A) and Preferred Alternative (Alterna- tive. A). USEPA stated that their input was provided without the benefit of a completed practicability evaluation by the USACE or a completed Biological Opinion from NMFS. I am confident those analyses, when completed, will provide information leading to reasonable environ- mental mitigation measures for project components subject to the regulatory authority of the cooperating agencies. I have also considered the advice of the State of Alaska in its memo December 1, 2004 (SEIS — Ap- pendix K) to me_ regarding environmentally preferable and preferred alternatives. The State identified both Alternatives A and D as environmen- tally preferable and Alternative D as its preferred 217a alternative. The State of Alaska is confident that mitigation measures identified in the FSEIS, the conditional and allowable use permits issued by the CBJ, agreed to by Coeur in its transportation plan, and those identified in the BA/BE submitted to NMFS on November 17, 2004, will all serve to reduce impacts to minimal levels for resources under the ju- risdiction of the State of Alaska, herring in particular. The State of Alaska will be including a number of those mitigation measures in its Tide- lands leases for marine facilities and Alaska Coastal Zone consistency review. I agree with the comment and analysis provided by the State. As noted above, other agencies have the final deci- sion in authorizing the type of transportation system to be used to access National Forest System lands. The FSEIS does, however, attempt to predict likely effects to non-National Forest resources based on an- ticipated activities and both mandatory § and anticipated mitigation. Based on this analysis and current mitigation requirements it appears that the effects to wildlife, fish, and recreational resources in Berners Bay are minimal. It is also possible that ad- ditional permit conditions could be imposed under both the USCOE permit and the State of Alaska tide- lands lease that would further reduce impacts. Given this conclusion, and the level of concern regarding the effects of helicopter transport on wildlife and rec- reation expressed during the 1992 and 1997 analyses, both helicopter and vessel transport result in low to moderate effects on various resources, in- cluding the recreational setting. As a_ result transportation related effects are not a deciding fac- tor in my selection of Alternative D. 218a Alternative D provides the best combination of com- ponents to minimize ground disturbance, reduce impacts to wetlands, provide safe and efficient transportation of workers, and reduce on-site fuel storage with the related risk of fuel spills within the framework of existing laws, regulations, and policies while meeting the stated purpose and need. The Forest Service generally encourages use of pri- vate land for construction of privately owned facilities and roads where possible. Alternative A has the greatest impact on NFS lands in terms of surface disturbance (248 acres) whereas alternatives B, C, and D put more of the disturbance onto privately held lands, and impact less acreage of NFS lands (157 acres, 177 acres, and 159 acres respectively for alternatives B, C, and D). The EPA has indicated that both Alternative A and Alternative B could be permitted under an NPDES permit pursuant to the Clean Water Act. Without additional water treatment, neither Alternative B nor Alternative C could meet expected NPDES per- mit conditions at all times and, therefore, could not discharge to Slate Creek under all conditions. Alter- native C also does not include process water recycling which the EPA has indicated will be re- quired by the NPDES permit (40 CFR 440.104(b)). The open channel diversion of East Fork Slate Creek around the TSF in Alternative C would provide the same minimum in-stream flows to Slate Creek as Al- ternative D, but would result in more ground disturbance and be more difficult to maintain than the pipeline diversion in Alternative D. Modifying ei- ther alternative to address these concerns would - make them similar to Alternative D. 219a Alternative D disturbs approximately 197 acres, of which 96 acres are wetlands, while Alternative A (No Action) disturbs 268 acres, all of which are wetlands. Although the total disturbed wetland acreage is low for all alternatives, Alternative D does reduce wet- land disturbance by 171 acres compared to the previously approved plan and virtually all of the wet- lands affected by Alternative D will be reclaimed following closure. Approximately 164 acres of wet- lands lost to the TSF under Alternative A would not be regained. Under Alternative D, water treatment and tailings capping offer reasonable assurances that water qual- ity downstream of the TSF will be protected. Reclamation of the TSF, post closure, will recreate habitat lost during operations and restore a viable fish population comparable to pre-operational condi- tions. Both the DTF under Alternative A and the TSF un- der Alternative D pose a minor threat due to the potential for design failure. Any tailings facility ap- proved will be required to be built to high standards. Construction of the TSF dam will require certifica- tion from the Alaska State Dam Officer and bonding for maintenance in perpetuity. Alternative D provides for safer handling of fuels compared to Alternative A. The risk of diesel spills is reduced under Alternative D by requiring all diesel fuel to be delivered, transported, and stored in iso- tainers rather than pumped frem a fuel barge at Comet Beach as under Alternative A. Since fuel stor- age facilities under all alternatives would be within approved containment the effects of a spill at those facilities would be minimal should one occur. 220a Slate Creek Cove offers more reliable and safer con- ditions for marine traffic. This reduces the need to store excess fuels, chemicals, and materials onsite as a contingency for weather delays. Construction of 4.5 miles of road, common to alterna- tives B, C, D, results in a minimal change to the character of Roadless Area 301. Roads not required for future monitoring and maintenance will be re- claimed following mine closure and revegetated with native plant species. The 122-acre DTF under Alternative A would be highly visible from Lynn Canal, the only Visual Pri- ority Travel Route (VPTR) impacted by project components on NFS lands. Figure 4-1 in the SEIS provides a visual simulation of this effect. By elimi- nating this component, my decision reduces visual impacts along the VPTR. I recognize the high recreational value of Berners Bay to users. Berners Bay is an outstanding resource that provides unique opportunities for wildlife and landscape viewing. Portions of the operations will be visible from the Forest Service Berners Bay Cabin, Echo Cove, and Point Bridget. Impacts to users of Berners Bay are related to marine facilities at Cas- cade Point/Echo Cove and Slate Creek Cove and the vessel traffic between them. Although these project components are outside of National Forest System lands, the impacts related to them have been evalu- ated in the SEIS and are considered in my decision. The Forest Service will work, to the extent practica- ble, with the other Federal, State, and local agencies, as well as with the operator to minimize these im- pacts. I believe recreational values. will be maintained with the mitigation measures considered in the SEIS. I also recognize that there may be some 221a forest users that find even these minimal impacts to be unacceptable. Alternatives Considered in Detail Four alternatives were considered in detail, includ- ing the No Action Alternative. This range of alternatives addressed the major issues associated with this project. The three action alternatives dif- fered from each other in the type and location of various project components. The alternatives are summarized below. Table 2-5 in the FSEIS compares alternatives by key project components. Alternative A - No Action — As a result of this al- ternative, the Forest Service would not approve proposed changes to the 1997 Approved Plan of Op- erations. This alternative includes underground crushing of ore with aboveground grinding and flota- tion. Flotation concentrate would be shipped to a processing facility off-site. Employees would be housed on-site and transported by helicopter for weekly rotations. Supplies, including fuel, would be delivered to a marine terminal on Comet Beach. Tail- ings would be dewatered before being placed in a dry tailings facility (DTF) facing Lynn Canal. The DTF would have the design capacity to hold 20 million tons of tailings and would include an engineered berm around each cell of the facility. The production rate would be 4,000 tons of ore per day and 400 tons of waste rock per day. The waste rock would be used in the construction of the DTF. Road and DTF con- struction would require the development of sand, gravel, and till borrow areas. Alternative Al: Reduced Mining Rate, DTF - Al- ternative Al illustrates the impacts that might occur if the No Action Alternative were selected and the operator chose to mine the same ore volumes pro- 222a posed in the action alternatives. Alternative Al re- flects a mining plan similar to that described for Alternative A but uses a mining rate and tailings production levels consistent with the Proposed Ac- tion (2,000 tons per day and 7.5 million tons total, respectively). The effects of Alternative Al were in- cluded in the FSEIS for comparison purposes only. The Forest Service does not regulate mining rate or target ore body. Alternative Al would result in 4.5 million tons of tailings being placed in the DTF, assuming 40 per- cent of the tailings would be backfilled. The DTF would be approximately 65 percent smaller than it would be under Alternative A. The reduced mining rate presented under Alternative Al would produce very limited amounts of waste rock for DTF con- struction. For this reason, the impact analysis assumes the same number of acres of sand and gravel borrow areas would be required as under AIl- ternative A, although the coarse and fine till borrow area would be reduced in size. Other aspects of Al- ternative Al, including transportation of employees and materials, would remain the same as those de- scribed under Alternative A. The life of the operation would be reduced to ten years following two years of construction. Alternative B: Proposed Action — Alternative B reflects a number of changes to the mine plan com- pared with the No Action Alternative, including constructing a tailings storage facility (TSF) in Lower Slate Lake, relocating milling operations to the Johnson Creek drainage, and eliminating the personnel camp. The operation would mine a smaller amount of ore with a higher average gold concentra- tion compared with that proposed under Alternative 223a A. Alternative B would include the development of a tunnel connecting the existing Kensington Mine to the process area located near the Jualin Mine in the Johnson Creek drainage. Access to the site would be from marine terminals built in Slate Creek Cove and at Cascade Point. Crew shuttle boats would trans- port employees daily to and from the project site. The TSF would be sized to accommodate the disposal of 4.5 million tons of tailings. Borrow areas would need to be developed for construction of the TSF dam and roads. The production rate would be approximately 2,000 tons of ore per day. This alternative includes recycling water from the TSF to the mill circuit. Al- ternative B would require upgrading the 5-mile-long access road from Slate Creek Cove and constructing a 3.5-mile pipeline access road and a 1-mile cutoff road connecting the other two roads. Alternative C: Dock Location and _ Design/ Diversion — Alternative C would eliminate the dock at Cascade point and instead include a dock in Echo Cove, approximately 0.75 mile north of the existing Echo Cove boat ramp. Also, the landing craft ramp at the Slate Creek Cove marine terminal would be eliminated, minimizing the amount of fill placed in the intertidal zone. Alternative C does not include recycling process water from the TSF and the mill circuit. This alternative would include diversion channels to direct the flow from Mid-Lake East Fork Slate Creek and overland runoff from undisturbed areas around the TSF. The diversion would dis- charge to a spillway at the top of the TSF dam. The diversions would require a dam on Upper Slate Lake to maintain water levels sufficient to reach the spill- way at the TSF dam. The purpose of the diversion would be to minimize the volume of fresh water in contact with the tailings. The remaining project 224a components, including the production rate of 2,000 tons per day of ore and the access tunnel, would be the same as those under Alternative B. Alternative D: Modified TSF Design and Water Treatment — Alternative D was developed to ad- dress comments received and concerns about the TSF effluent meeting NPDES permit limitations in- tended to protect downstream water quality in East Fork Slate Creek below the TSF. Alternative D in- cludes a dam in Mid-Lake East Fork Slate Creek that would gravity feed a pipeline diversion around the TSF. Water would be pumped from the TSF to a reverse osmosis treatment system that would remove solids and metals to ensure compliance with permit limits. The treatment system would discharge to the diversion pipeline. Alternative D also requires the tailings placed in Lower Slate Lake to be capped if the operator cannot demonstrate that the tailings are re-colonized by plant and shallow-water macro invertebrates at least comparable to pre-mining con- ditions. The remaining project components would be same as those under Alternative B. Alternative D, the selected alternative, is described :« more detail above. Environmentally Preferable Alternative Environmentally Preferable Alternatives) is (are) the alternatives) that cause the least damage to the bio- logical and physical environment and which best protect, preserve, and enhance historic, cultural, and natural resources. I have identified Alternatives A and D as the envi- ronmentally preferable alternatives. While both alternatives include environmental impacts ranging from short to long term, each are protective of water and air quality standards. Each has different envi- 225a ronmentally negative and positive aspects that, when compared, make the two alternatives different but near equal with respect to overall impact to the environment. I have reviewed input from the USEPA and the ADNR in reaching my determination. The written conclusions and rationale from both agencies are provided in Appendix K to the SEIS. While the Forest Service and ADNR appear to be in agreement about the relative effects of the alternatives on the environment, the USEPA differs in its relative weighing of project effects. Several interagency work- ing meetings were held to attempt to reach consensus regarding the environmentally preferable alternative but, contrary to the USEPA' s view, no group consensus was reached. Comparing numerical differences of similar effects between alternatives (i.e. acres) provides one means of differentiating between the alternatives but is lim- ited to easily measurable effects. Weighing the actual importance of an impact on one resource against a different impact on another resource is a much more difficult undertaking. For example; weighing the ex- tremely low risk of a catastrophic event in one alternative against the certainty of a very small im- pact in a different alternative results in a very subjective ranking of one alternative against an- other. In the end, in my opinion, a meaningful difference between Alternatives A and D was not ap- parent based on the resource values affected, nor the degree to which those values would be affected. Chapter 2 of the SEIS contains a detailed summary of the effects of each alternative both in tabular and narrative form. Chapter 4 of the SEIS contains a de- tailed discussion of those effects. 226a Alternatives Eliminated from Detailed Analysis There were a number of alternatives and project components studied in the 1992 FEIS and 1997 SEIS including submarine tailings disposal, marine dis- charge of wastewater, and wet tailings disposal in the Sherman Creek drainage, among others. Those discussions are not repeated here. This FSEIS dis- cusses a number of additional alternatives and components including disposal of tailings in Upper Slate Lake, use of tailings in the construction of the Juneau Access Road, helicopter access during eula- chon and herring runs, and Cascade Point to Comet Beach crew shuttle access among others. Each is briefly discussed and reasons for not considering the alternative or project component in detail are listed. Mitigation, Monitoring, and Reclamation The FSEIS, Chapter 2, Mitigation and Monitoring list the mitigations measures required as part of al- ternative D that are designed to avoid or minimize potential environmental impacts during construc- tion, operation, and project reclamation. A summary of mitigation measures and a summary of monitoring measures, including various authorities and the re- sponsible parties, are identified in Table 2-6 and 2-7 of the FSEIS respectively. These mitigation meas- ures have been used successfully in other projects with similar types of activities. As a result, they are considered effective and are made part of this deci- sion. The mine operator will be required, as part of the amended plan of operations, to submit mitigation and monitoring plans. Mine construction may not begin until the Forest Service approves the plan of operations. Environmental monitoring programs that meet the requirements of the Forest Service, USEPA, ACOE, 227a ADNR, ADEC and other agencies will be imple- mented. These programs will be designed to determine compliance of the project with the plan of operations, other federal, state and local permits, and to validate the projected effects of the project's construction, operation, reclamation, and _post- closure conditions. Impacts that are likely to or do result in violations of regulatory stipulations will re- quire alterations of project operations and/or additional mitigation actions. Permits, Licenses and Certifications To proceed with development of the Kensington Gold Project as approved in this ROD, various permits, li- censes and certifications must be obtained from federal, state, and local agencies. The following per- mits must be obtained: USDA Forest Service Approval of the amended plan of operations includ- ing posting of the approved reclamation bond. U.S. Army Corps of Engineers Clean Water Act Section 404 Permits Rivers and Harbors Act Section 10 Permits U.S. Environmental Protection Agency Clean Water Act Section 402 - National Pollutant Discharge Elimination System Permit Clean Air Act State of Alaska, Department of Environmental Conservation Clean Water Act Section 401 Certification of the USACOE Section 404 permit 228a Cleam Water Act Section 401 Certification of the USEPA Section 402 - NPDES permit Air Quality Control Permit Domestic wastewater system plan approval Boat requirements (SPCCP and financial assur- ances) State of Alaska, Department of Natural Re- sources Water rights authorizations Tidelands leases for marine facilities Alaska Coastal Zone consistency review Certificate of Approval to Construct a Dam Title 41 authorizations for fish passage and fish habitat Right-of-way authorizations Approval of the reclamation plan. City and Borough of Juneau Allowable Use Permit for Gold Mine Development and Production within the Rural Mining District at Berners Bay. (Approved September 13, 2004) Conditional Use Permit to allow development of a ferry dock and related access at Cascade Point. (Ap- proved October 15, 2004) Public Involvement On September 13, 2002, the Forest Service published a Notice of Intent to prepare a Supplementary Envi- ronmental Impact Statement (SEIS) for the proposed project in the Federal Register (Vol. 67, No. 178, Page 58011-58012). Cooperating agencies as defined in 40 CFR, section 1501.6 are the U.S. Army Corps of Engineers, Environmental Protection Agency, and The State of Alaska. The National Marine Fisheries Service (NMFS) was invited to participate as a coop- 229a erating agency, but declined. A Memorandum of Un- derstanding was executed that included the following State of Alaska agencies as participants in the devel- opment and review of the SEIS: Alaska Department of Naturai Resources (ADNR), Alaska Department of Environmental Conservation (ADEC), and Alaska Department of Fish and Game (ADF&G). On the date of the Notice of Intent, the Kensington Gold Pro- ject Amended Plan Of Operations; Supplemental Environmental Impact Statement; Scoping Docu- ment; USDA Forest Service, Juneau Ranger District; September 2002 was distributed to agencies, organi- zations, tribes, and persons who had previously expressed interest in minerals projects on the Ton- gass National Forest. Outreach was conducted with public service announcements in the Juneau Pmpure and by radio media. On September 17, 2002 a scoping meeting/opem house was held in Juneau, Alaska at Centennial! Hall, and a second open house on September 19, 2002 in Haines, Alaska at the City Council chambers in City Hall. The open houses were designed to pro- vide background information or technical assistance that the public or interested agencies might need be- fore commenting. The scoping document was made available at these meetings. The formal comment pe- riod ended October 15, 2002. The following significant issues were identified based on comments from the public, other agencies, feder- ally recognized tribes, and non-governmental organizations. 1). Marine-related transportation will impact users of and resources within Berners Bay. 230a 2). Construction and operation of the tailings disposal facility and other mine facilities will impact aquatic resources from Slate and Johnson Creeks to Slate Creek Cove and Berners Bay. 3). The Lower Slate Lake tailings storage fa- cility, docks, access road, and other mine facilities will impact the scenic character of Berners Bay for recreationists. To address these issues, the Forest Service developed aliernatives to the Proposed Action, as described above. A Notice of Availability of the Draft SEIS was pub- shed January 23, 2004 in the Federal Register (Vol. 69, No. 15, Page 3340-3341) and copies of the docu- ment distributed to interested and affected parties. A public meeting was held on February 24, 2004 at Centennial Hall in Juneau and on February 26, 2004 at the American Bald Eagle Foundation Building in Haines. The extended comment period for the Draft SEIS closed April 7, 2004. Based on comments to the Draft SEIS, Alternative D was developed. The only new component introduced in Alternative D was a reverse osmosis water treatment facility to address concerns about the TSF effluent meeting NPDES permit limitations intended to protect downstream water quality in East Fork Slate Creek below the TSF. Planning Record The planning record for this project includes the Draft SEIS, Final SEIS, appendices, public com- ments, response to public comments, Forest Plan, all material incorporated by reference including the 1997 SEIS and ROD and 1992 EIS and ROD, and all 23la materials utilized during the analysis of this project. The planning record is being compiled and will be available for review at the Juneau Ranger District office when legal notice of this decision is published in the Juneau Empire. Findings Required by Law Tongass Land and Resource Management Plan, 1997 All project alternatives are consistent with the 1997 Land and Resource Management Plan for the Ton- gass National Forest. The site is located within an area designated as Modified Landscape with a Min- erals prescription. My decision to approve the amended plan of operations for the Kensington Gold Project as described in Alternative D is consistent with the intent of the Forest Plants long-term goals and objectives listed on pages 2-2 to 2-5. The project was designed in conformance with Forest Plan stan- dards and incorporates appropriate Forest Plan guidelines for Modified Landscape with a Minerals prescription (Forest Plan, pages 3-135 to 3-136 and 3-151 to 3-157). As part of the Kensington Gold Project analysis, three small Old-Growth Reserves (OGR) within the project area were reviewed by an interagency team . These OGRs are synonymous with the Old-Growth Habitat land use designation in the Forest Plan. A non-significant amendment expands the OGRs in VCUs 160, 190, and 200 to meet the requirements of the Forest Plan. (ROD, Appendix 1) 232a The Roadless Area Conservation Rule (Roadless Rule) On January 12, 2001 the Forest Service published a final rule for roadless area conservation known as the "“Roadless Rule", which generally prohibited commercial timber harvest and road construction within inventoried roadless areas on national forests. In December 2003, the Forest Service exempted the Tongass National Forest from the roadless rule. Alaska National Interest Lands Conservation Act (ANILCA) An ANILCA Section 810 subsistence evaluation was conducted. The Kensington Gold Project is located within the City and Borough of Juneau, whose resi- dents are non-rural for subsistence purposes in terms of the ANILCA. Documented subsistence use of the area is limited to the some fishing off Comet Beach by Skagway and Haines residents. The docu- mented use of the project area by rural residents is well below the levels considered for subsistence use. Therefore, no significant restrictions on subsistence resources would be expected by implementing any of the alternatives.. Endangered Species Act No threatened or endangered species either occur upon or would be affected by project components oc- curring on NFS land and approved by my decision. The Forest Service has determined that project com- ponents occurring outside of NFS land are not likely to affect threatened and endangered species. As indi- cated above, formal consultation with the NMFS is ongoing, and implementation of my decision is sub- ject to the completion of this process. The USACE retains the full authority to deny or condition the ac- 233a tivities at the marine terminals in response to a bio- logical opinion and any reasonable and prudent alternatives to protect listed species. Other agencies may, as a result of NMFS recommendations and fmdings, incorporate additional mitigations or modi- fications. Such mitigations and modifications will be incorporated within the permits of agencies with ju- risdiction. The Final’ Biological Assessment/ Biological Evaluation (BA/BE) submitted to NMFS on November 17, 2004 is included as Appendix J to the SEIS and contains current and expected operat- ing conditions. In the event that other mitigation measures or operating conditions are incorporated, I will review my decision to determine whether any changes are needed. Essential Fish Habitat The potential effects of the Kensington Gold Project on essential fish habitat (EFH) have been evaluated. No adverse effects to freshwater EFH will occur as a result of my decision. Although the risk of measur- able impact on essential fish habitat has been minimized, I have determined that this project could adversely affect essential fish habitat in the marine environment. Marine components of this project could have short- and long-term adverse effects on EFH. These components will be addressed by other Federal, state, and local agencies that may require mitigation measures to reduce adverse impacts to EFH. In addition, Coeur is sponsoring a monitoring plan by NMFS and the state to assess the effects of petroleum releases into Berners Bay. ! will continue to work with the NMFS in evaluating monitoring re- sults. For specific information regarding essential fish habitat and potential impacts refer to sections 234a 4.9 and 4.10, and the EFH Assessment included as Appendix B in the SEIS. National Historic Preservation Act A cultural resource survey of the area of potential ef- fect for the Kensington Gold Project was completed in 2003, in compliance with Section 106 of the Na- tional Historic Preservation Act. Determinations of eligibility for 43 historic sites within the area of po- tential effect were submitted to the State Historic Preservation Officer for its concurrence with our de- terminations of eligibility. In March 2004 the Forest Service completed the determinations of effect for each of the historic properties in each of the propose” alternatives. A mitigation plan to address the aa- verse effects to historic properties has _ been documented in a Memorandum of Agreement (MOA) between Coeur Alaska Inc., Alaska State Historic Preservation Officer, and the Tongass National For- est as executed by the Forest Service on November 29, 2004 (FS No. 05MU-111005-017). Implementation of this MOA during all phases of the mining operations, through closure, evidences that the Tongass National Forest has satisfied its section 106 responsibilities for all undertakings pursuant to the plan of operations. The area of potential effect was also evaluated for the presence of any Traditional Cultural Properties (TCP). The State Historic Preservation Officer con- curred with our determination of "No Traditional Cultural Properties Affected". Members of the Auk Kwaan were consulted regarding TCP in a May 2003 meeting in Juneau in order to complete and verify Forest Service records. 235a Coastal Zone Management Act The Coastal Zone Management Act (CZMA) requires that the Forest Service, when conducting or author- izing activities or development be consistent with the approved Alaska Coastal Management Program (ACMP) to the maximum extent practicable. This ac- tivity is one authorized under a Forest Service permit, as defined in 15 CFR 930.51(a). The Forest Service/State of Alaska Memorandum of Under- standing on Coastal Zone Management Act/Alaska Coastal Management Program Consistency Reviews (MOU) lists permitted activities normally requiring a consistency determination (MOU, Section 302.8.2.). This activity is listed in Section 302.8.2 as normally requiring a consistency determination. Coastal Pro- ject Questionnaires have been completed by Coeur Alaska, and submitted to the State of Alaska for a consistency determination. A consistency determina- tion must be received before the state can issue any permits and before the Forest Service can approve the plan of operations. Executive Orders Executive Order 11988 (Floodplain Management) This area is not located within floodplains as defined by executive order 11988. Executive Order 11990 (Protection of Wetlands) Because wetlands are so extensive in the Kensington Gold Project area, it is not feasible to avoid all wet- land areas. I have determined that the selected alternative includes all reasonable measures to minimize harm to wetlands, which may result from 236a such use. A separate permit, issued by the USACOE, is required for all wetland fill. The selected alterna- tive eliminates the permanent loss of 122 acres of wetlands resulting from construction of the DTF. Construction of the TSF will impact 23 acres of wet- lands, however, a similar amount of wetlands are expected to develop naturally or be created along the edges of Lower Slate Lake upon the completion of reclamation. Executive Order 12898 (Environmental Justice) Implementation of this decision will not result in disproportionate adverse human health or environ- mental effects to minority or low-income populations. Executive Order 12962 (Recreational Fisheries) With the application of Forest Plan standards and guidelines, including those for riparian areas, no sig- nificant adverse effects to freshwater or marine fisheries will occur. Most recreational fishing throughout the Tongass National Forest occurs by boat in saltwater, and any adverse effects would be minimal. Executive Order 13175 (Indian Tribal Governments) The Forest Service conducted consultations with the Chilkoot Indian Association, Chilkat Indian Village, and the Tlingit-Haida Central Council, as well as re- gional corporations, on the proposed project. 237a Executive Order 13186 (Migratory Birds) Implementation of this decision will not have any significant adverse effects to migratory birds and their habitat. (SEIS Appendix H) Process for Change During Implementation Proposed changes to the authorized project actions will be subject to the requirements of National Envi- ronmental Policy Act (NEPA), National Forest Management Act (NFMA), Section 810 of Alaska Na- tional Interest Lands Conservation Act (ANILCA), Coastal Zone Management Act (CZMA), 36 CFR 228 (Subpart A), and other laws concerning such changes. In determining whether and what kind of NEPA ac- tion is required, the Forest Supervisor will consider the criteria set forth in the Code of Federal Regula- tions (40 CFR 1502.9(c)), and FSH 1909.15, sec. 18, for determining whether to supplement an existing EIS. In particular, the Forest Supervisor will deter- mine whether the proposed change is a substantial change to the Selected Alternative as planned and already approved, and whether the change is rele- vant to environmental concerns. Connected or interrelated proposed changes regarding particular areas of specific activities will be considered together in making this determination. The cumulative im- pacts of these changes will also be considered. The intent of field verification is to confirm field con- ditions and to determine the feasibility and general design and location of a structure or road, but not to designate final locations. Minor adjustments are ex- pected during implementation to better meet on-site resource management and protection objectives. 238a Many of these minor changes will not present suffi- cient potential impacts to require any specific documentation or other action to comply with appli- cable laws. Some minor changes may still require appropriate analysis and documentation to comply with FSH 1909.15, sec. 18. Implementation of this Decision Implementation of decisions subject to appeal pursu- ant to 36 CFR part 215, may occur on, but not before, 5 business days from the close of the appeal filing pe- riod. Right to Appeal This decision is subject to administrative review (ap- peal) pursuant to 36 CFR Part 215. Individuals or organizations who submitted substantive comments during the comment period specified at 215.6 may appeal this decision. The notice of appeal must be in writing, meet the appeal content requirements at 215.14 and be filed with the Appeal Deciding Officer: Denny Bschor, Regional Forester USDA Forest Service, Region 10 P.O. Box 021628 Juneau, AK 99802-1628 E-mail: appeals-alaska-regional-office@fs.fed.us The Notice of Appeal, including attachments, must be filed (regular mail, fax, e-mail, express delivery or messenger service) with the Appeal Deciding Officer at the correct location within 45 calendar days of publication of notice of this decision in the Juneau Empire, the newspaper of record for the Tongass Na- tional Forest. The publication date in the newspaper of record is the exclusive means for calculating the 239a time to file an appeal. Those wishing to appeal this decision should not rely upon dates or timeframe in- formation provided by any other source. Hand delivered appeals will be accepted at the Re- gional Office in Juneau, Alaska during normal business hours (8:00 am through 4:30 pm) Monday through Friday, excluding holidays. In accordance with 36 CFR Part 215.14, it is the re- sponsibility of those who appeal a decision to provide the Appeal Decision Officer sufficient evidence and rationale to show why the Responsible Official's deci- sion should be remanded or reversed. The written notice of appeal filed must meet the following re- quirements: 1. State the document is a Notice of Appeal filed pursuant to 36 CFR part 215; 2. List the name, address, and telephone number of appellant; 3. Identify the decision document by title and subject, date of the decision, and name and identify the specific change(s) in the decision that the appellant seeks or portion of the deci- sion to which the appellant objects; 4. State how the Responsible Official's decision fails to consider comments previously pro- vided, either before or during the comment period specified in 36 CFR 215.6 and, if appli- cavle, how the appellant believes the decision violates law, regulation, or policy. 240a Contact Person Kor additional information concerning this decision or the Forest Service appeal process, contact Pete Griffin Juneau District Ranger 8465 Old Dairy Road Juneau, Alaska 99801(907) 586-8800 /s/Forrest Cole 12.9.04 FORREST COLE Date Forest Supervisor The U.S. Department of Agriculture (USDA) prohibits dis- crimination in all its programs and activities on the basis of race, color, national origin, gender, religion, age, disability, po- litical beliefs, sexual orientation, or marital or family. status. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD). To file a complaint of discrimination, write USDA, Director, Office of Civil Rights, Room 326-W, Whitten Building, 14th and Independence Avenue, SW, Washington, DC 20250-9410 or call (202) 720-5964 (voice and TDD). USDA is an equal opportunity provider and employer. 241la Appendix I Non-significant amendment to Forest Plan 242a SIGNIFICANCE ANALYSIS FOR A NON-SIGNIFICANT AMENDMENT TO THE FOREST PLAN Small Old-Growth Reserve (Habitat) Modifica- tions in Value Comparison Units 160, 190, and 200 | During the development of the 1997 Forest Plan Fi- nal Environmental Impact Statement, a conservation strategy was designed to ensure that implementation of the Forest Plan would provide a reasonable assur- ance of maintaining viable and well-distributed wildlife populations across the Tongass National Forest for 100 years. As part of this conservation strategy, a forest-wide system of large, medium, and small Old-Growth Habitats or Reserves (OGRs) was established and a set of standards and guidelines de- veloped to preserve the integrity of the forest's old- growth ecosystem. The habitats have been identified and mapped in the 1997 Forest Plan. The Old-Growth Habitat land use designation pro- vides for evaluation and possible adjustment of the location of the habitats based on site-specific infor- mation. Where feasible, the boundaries should follow geographic features so that they can be recognized in the field. The 1997 Forest Plan Record of Decision committed the Forest Service to work with the Alaska Department of Fish and Game (ADG&G) and the U.S. Fish and Wildlife Service (USFWS) to re- view the location, size, and suitability of the OGRs during project-level planning. As part of the Kensington Gold Project analysis, three small OGRs were identified within the project area (Figure 1). Small OGRs require a contiguous landscape of at least 16 percent of the total Value 243a Comparison Unit (VCU) area and 50 percent of this area must be productive old-growth timber. Along with the general criteria of size and productivity, connectivity is also a criterion. The design of each habitat should be based on wildlife concerns specific to the area. Criteria commonly used in designing small habitats include important deer winter range, probable goshawk nesting habitat, probable marbled murrelet nesting habitat, large forest blocks, rare plant associations, and landscape linkages. VCUs are distinct geographic areas encompassing one or more large stream systems with boundaries that follow watershed divides. The study area includes three VCUs (160, 190, and 200) with a small OGR within each. The Forest Ser- vice, ADF&G, and USFWS conducted an interagency review of the existing mapped small OGRs in No- vember 2003. The review team determined that none of the mapped small OGRs in the study area met the requirements for size or the amount of productive old growth established under the Forest Plan and rec- ommended non-significant modifications to each of the small OGRs. The findings and recommendation of the interagency review team are summarized be- low by VCU and explained in more detail in Appendix F of the 2004 Kensington Gold Project Supplemental Environmental Impact Statement (SEIS). VCU 160 Finding: The small OGR in VCU 160 does not meet Forest Plan standards and guidelines for size. This small OGR covers 802 acres and is 573 acres short of the 16 percent of VCU requirement. Recommendation: Increase the size of the small OGR in VCU 160. The redrawn boundaries of this OGR 244a will border but not include the tailings storage facil- ity, access roads, pipeline, and maintenance access facilities. VCU 190 Finding: The small OGR in VCU 190 does not meet the Forest Plan standards and guidelines for size nor percentage of productive old growt [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0065%3A08. Public record. Not legal advice.