LAPWAI - On Friday, January 15, the U.S. Environmental Protection Agency (“EPA”) and U.S. Forest Service (“USFS”) announced a settlement agreement with Midas Gold despite strong opposition from the Nez Perce Tribe. The Tribe had submitted numerous requests that the agencies allow pre-decisional public comment and evaluation by the incoming Biden Administration. In exchange for agreeing to perform very limited cleanup activities at the Site, Midas Gold received through this settlement agreement—known as an Administrative Settlement and Order on Consent—a glide path toward constructing its proposed, huge, open-pit gold mine at the historical Stibnite Mine Site (“Site”). The Nez Perce Tribe expressed their disappointed in the decision in a statement that can be read below.
“The settlement agreement issued today is stunningly inadequate and fails to accomplish the comprehensive and responsible cleanup of the Site that the Nez Perce Tribe and Idahoans deserve. Instead, the proposed cleanup actions are heavily influenced by, and appear designed to facilitate, Midas Gold's plans to re-mine the area,” stated Shannon F. Wheeler, Chairman of the Nez Perce Tribal Executive Committee. “Most of the cleanup actions are contingent on the approval of the company's mining Project, are entirely optional, and are based on protracted timelines that unreasonably delay cleanup. The only mandatory actions required by the settlement agreement do not provide anywhere near the robust, comprehensive, and Site-wide cleanup needed and which Midas Gold, in numerous public statements, has promised,” continued Wheeler. “Today’s action is simply a gift from the outgoing administration to Midas Gold.”
The only cleanup work required by the settlement agreement is the removal of approximately 2-3% of the estimated 10 to 15 million tons of existing mining waste at the Site. The company is not required to stop or treat several of the ongoing pollution discharges at the Site; it is only tasked with studying them over the next four years.
The Nez Perce Tribe was only able to consult with EPA and the Forest Service on the final settlement agreement within the last week. During those discussions, the Tribe highlighted its rights and resources at the Site and emphasized the need to comprehensively address all of the Site’s pollution. The Nez Perce Tribe also requested that EPA and the Forest Service allow the incoming Biden Administration—which will be tasked with implementing the settlement agreement—to review the agreement prior to its finalization in order to assure the Nez Perce Tribe and public that the document is grounded in science rather than politics. Both agencies refused this request and, instead, signed the decision within a few days of consulting with the Tribe.
The Site, located in the headwaters of the East Fork South Fork Salmon River in Valley County, Idaho, is part of the Nez Perce Tribe’s vast aboriginal homeland that it ceded to the United States in the Treaty of 1855. Nez Perce Tribal members continue to exercise treaty-reserved hunting, fishing, gathering, and pasturing rights in the area. The Site also contains numerous irreplaceable Nez Perce cultural resources and provides habitat for imperiled salmon and other species on which the Tribe annually expends $2.8 million in restoration efforts. In its Environmental Impact Statement for Midas Gold’s proposed mine, the Forest Service concluded that the mine will dramatically expand the footprint of previous mining operations, generate over 450 million tons of new mining waste, require water treatment in perpetuity, destroy treaty-reserved fish resources and habitat, and block treaty-reserved Nez Perce Tribal access for decades.
In 2019, the Tribe filed a lawsuit in U.S. District Court against Midas Gold for illegally discharging pollutants at the Site on the company’s private land and on its unpatented mining claims located on National Forest System land, in violation of the Clean Water Act. In response to the Tribe’s lawsuit, Midas Gold sued the Forest Service in 2020 for the pollutant discharges occurring on its unpatented claims. Under today’s settlement agreement, Midas Gold agreed to dismiss its lawsuit against the Forest Service. The settlement agreement also appears designed to undermine the Tribe’s own pending Clean Water Act enforcement action at the Site.
“Despite today’s decision, the Nez Perce Tribe remains undeterred in its ongoing efforts to lay to rest the misguided notion that the Site can only be restored by allowing a gold mining company to re-mine it. As the original stewards of this land and signatory to the Treaty of 1855 with the United States, we are committed to working in partnership with the incoming Biden Administration to think creatively and to fully explore all options for restoring the Site,” concluded Wheeler.