Alaska Region P.O. Box 21628 United States Department of Agriculture

Forest Service Juneau, AK: 99802-1628

File Code: 1570 Date:

DEC 12 2013

Mr. Buck Lindekugel Southeast Alaska Conservation Council 224 Gold Street Juneau, AK 99801

Dear Mr. Lindekugel:

This letter is in response to the appeal you filed regarding the Tongass Forest Supervisor's decision on the Greens Creek Mine Tailings Disposal Facility Expansion (Greens Creek) Project, which is located on Admiralty Island.

Pursuant to 36 CFR § 215.18, I have reviewed the Final Environmental Impact Statement (EIS), Record of Decision (ROD), and the administrative record for the project, which includes the project planning and appeal records. I have also considered the Appeal Reviewing Officer's (ARO) recommendation (enclosed) regarding the disposition of your appeal (No. 14-10-00-0001). The ARO recommended that I affirm the Tongass Forest Supervisor's decision.

Decision

After careful review of all the information in the record, I concur with the AR O's recommendation and I affirm the Forest Supervisor's decision. Your requested relief is denied.

My decision incorporates, by reference, the entire administrative record, which includes the appeal and project planning records, and constitutes the final administrative decision of the Department of Agriculture (36 CFR § 215.18(c)). The ROD maybe implemented 15 business days following the date of this decision (36 CFR § 215.9(b)).

Sincerely,

BETH G. PENDLETON Regional Forester

Enclosure

cc: Forrest Cole, Patricia O'Connor, Chad M VanOrmer, Katie Benning

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,~~~ United States l<ff·J}1 Department of ~ Agriculture

File Code: 1570

Forest Service

Alaska Region P.O. Box 21628 Juneau, AK 99802-1628

Date: DEC 1 2 2013

Subject: Greens Creek Record of Decision and Final Environmental hnpact Statement

To: Appeal Deciding Officer

This is my recommendation, as Appeal Reviewing Officer, on the action you should take, as Appeal Deciding Officer, on the pending appeal of the Greens Creek Mine Tailings Disposal Facility Expansion (Greens Creek) project. The following appeals were filed under 35 CFR 215:

No. 14-10-00-0001, filed by Buck Lindekugel on behalf of the Southeast Alaska Conservation Council and the Angoon Community Association;

No. 14-10-00-0002, filed by Peter Naoroz on behalf of Kootznoowoo, Incorporated; No. 14-10-00-0003, filed by K.J. Metcalf on behalf of Friends of Admiralty Island.

The appeals filed by Mr. Naoroz and Mr. Metcalf were not submitted to the correct appeals inbox within the 45-day appeal period; therefore, these appeals were dismissed pursuant to 36 CFR 215.16(a)(l).

The decision being appealed is the decision by the Tongass Forest Supervisor, Forrest Cole, to select Alternative D, with modifications, from the Final Environmental hnpact Statement (FEIS). Components of the Selected Alternative include:

• Expansion of the existing tailings disposal facility (TDF) further south into the Admiralty Island National Monument (ANM) by about 18 acres;

• Development of a reclamation material storage area near the junction of the A and B roads, outside of the ANM;

• Development of a rock quarry north of the existing TDF, outside of the ANM; • Development of a new water management pond south of the existing TDF and expansion

of existing water management ponds; and • Relocation of the B road and truck wheel wash facility to accommodate the TDF

expansion.

The Selected Alternative does not include the second TDF in the Fowler Creek watershed, or the expansion of the existing TDF into the Cannery Creek watershed. It avoids expanding the existing reclamation material storage site within ANM; instead, it adds a 4.8-acre reclamation storage site near the junction of the A and Broad. Finally, the west road is deleted in the Selected Alternative, and a much shorter road is added to provide access to the rock quarry. As discussed in the Record of Decision (ROD) [p. 3], these modifications were all included as parts of other alternatives analyzed in the FEIS. -

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Greens Creek Appeal Recommendation 2

Background

Jn February 2010, Hecla Greens Creek Mining Company (HGCMC) requested a modification of both the area and disposal capacity of the existing TDF. This request noted that all other aspects of the operation, including production rates, employment levels, and shipping procedures, would remain the same. The Tongass National Forest reviewed the HGCMC proposal; and detennined that an Enviromnental Impact Statement (EIS) should be prepared for the project. A Notice of Intent (NOi) to prepare an EIS for the Greens Creek project was published in the Federal Register on October 5, 2010. The Draft EIS was released for public comment on April 20, 2012, and on September 5, 2013, the Tongass Forest Supervisor signed the ROD for the project.

My review of the appeal was conducted pursuant to 36 CFR 215.19. The appeal and project records have been carefully reviewed in my consideration of the objections raised by Appellant and his requested relief. The Tongass National Forest prepared the enclosed indices of the documentation supporting the decision, which are keyed to specific issues raised by the Appellant. My recommendation hereby incorporates the entire administrative record for the project.

Appellant lists many inten-elated issues in his appeal of the Greens Creek project. Although I may not have listed each specific issue, I have considered all of the issues raised in the appeal and believe that they are adequately addressed in the following discussions.

Issue 1. Whether the selection of an alternative that does not meet the project's purpose is a substantial change in the project that requires a Supplemental EIS.

Appellant asserts that the Forest Service only considered alternatives that provided capacity for 30-50 years of tailings and that the Selected Alternative is outside the spectrum of alternatives considered in the DEIS (provides substantially less capacity than any of the other action alternatives). Appellant further asserts that the public had no way of evaluating the effects of the Selected Alternative, and that this short-term solution does not address the concerns raised during the NEPA process.

Discussion

The Council on Environmental Quality (CEQ) regulations implementing the National Environmental Policy Act (NEPA) require agencies to "briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action" [40 CFR 1502.13]. The purpose and need for the Greens Creek project is to "act on HGCMC's proposed modification to its [General Plan of Operations (GPO)] to expand the TDF" [Greens Creek FEIS, Summary, p. iii] and to "consider certain changes to the approved HGCMC GPO regarding tailings and waste rock disposal and related infrastructure" [FEIS, p. 1-7; see also NOi, Project Record (PR) #744_0204].

The CEQ regulations implementing NEPA at 40 CFR 1502.14( a) also state that an analysis should "[r]igorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their

Greens Creek Appeal Recommendation 3

having been eliminated." CEQ addressed the subject of alternatives in its 40 Most Asked Questions. Question 1 b notes that "[ w ]hat constitutes a reasonable range of alternatives depends on the nature of the proposal and the facts in each case."

As stated above, the purpose and need for the Greens Creek project is to "consider certain changes to the approved [GPO] regarding tailings and waste rock disposal and related infrastructure." Based on HGCMC's request to modify its GPO, the Forest Service developed a proposed action that provided capacity for tailings and waste rock disposal "for an additional 30-50 years" [EIS, p. 1-7]. The Greens Creek DEIS and FEIS include a no-action alternative and 3 different action alternatives. The no-action alternative would provide tailings and waste rock disposal capacity to 2019 (as currently authorized), which is less than the capacity analyzed in the action alternatives, all of which provided capacity for 30-50 years of tailings and waste rock disposal.

The significant issues identified by the public for the project centered around the location of the tailings basin(s) and management rather than on duration and capacity of the alternatives. The issues identified in the DEIS and FEIS (water quality, wetlands, fish habitat, and Monument values) bear this out. Appellant's comments on the DEIS [SEACC letter, PR #744_0687] and other comments in the project record [see, for example, SEACC scoping letter, PR #744_0295; see also ACA letter, PR #744_0404] do raise questions about the alternatives. However, these comments focus on HGCMC's ability to accurately predict the rate of tailings disposal and the life of the mine out to the 99 years mentioned in the Greens Creek Land Exchange Act. I will briefly address some of Appellant's comments regarding the alternatives here; others are better addressed in my response to Appellant's cumulative effects issue, below [Issue 4].

In his comments on the project, Appellant raised concerns about inaccurate estimates of the rate of tailings disposal in the past. The FEIS acknowledges and discusses the apparent "loss" in disposal capacity [see, for example, pp. 1-3 and 1-6; see also Appendix A, pp. A-16 and A-17]. As stated in the FEIS, the loss of storage volume that was anticipated in the 2003 Greens Creek FEIS is due to geotechnical issues and increased disposal rates, partially due to waste rock material from Site E being moved to the current TDF. In response to Appellant's comment on this issue, the FEIS [p. A-16] states:

The disposal capacity addressed in the current EIS represents a reasonable maximum design, taking into account tailings and waste rock production rates over a series of years, the need for disposal at ancillary sites (e.g. Site E), and wastes approved for disposal in the ADEC Solid Waste Permit... The Forest Service is confident that the volumes used to design the facilities described in the proposed action and alternatives in this EIS represent realistic values for production rates that are likely to occur without substantial modification to processing facilities at the mill ... If there are substantial changes in the future that warrant additional new tailings disposal locations, then these would need to be evaluated in future NEPA documents.

It is understandable that past "disposal performance" is of concern to Appellant. However, the predictions used in the FEIS are based on the best available information given the uncertainties in ground conditions, the nature of the material mined, and mineral reserves. As a result, it is reasonable to rely on them for the analysis.

Greens Creek Appeal Recommendation 4

In regard to Appellant's assertion that the Selected Alternative is outside the spectrum of alternatives considered in the DEIS (provides substantially less capacity than any of the other action alternatives) and that the public had no way of evaluating the effects of Selected Alternative, it is correct that the DEIS and FEIS did not include an analysis of the exact footprint of what ultimately turned out to be the Selected Alternative. However, the distinct nature of the locations of the proposed TDF' s in the alternatives encompasses the potential effects of the Selected Alternative. For example, the FEIS discusses the potential effects on Fowler Creek [see, for example, the discussion of effects on water resources on p. 3-69, aquatic resources on p. 3-111, and essential fish habitat on p. 3-113]. The DEIS [Volume 2, p. D-7] depicts the south layout under Alternative D for years 1-10, and it is very similar to the Selected Alternative [ROD, p. 4]. As stated in the ROD, the effects on the ANM are nearly identical to those described in the FEIS for Alternative D, and the total effects on wetlands, wildlife, aquatics, and other resources are less than any of the action alternatives.

The DEIS and FEIS include an extensive analysis of the effects of Alternative D, which would be the maximum extent of the effects associated with the activities proposed in that alternative. The potential effects associated with the Selected Alternative are substantially less, primarily because there is no tailings basin on the A Road. Furthennore, the FEIS describes how the expansion of the tailings basin "would occur in stages or phases, with each stage accommodating approximately 10 years' worth of capacity," and notes that the Forest Service and other cooperating agencies would need to approve each stage prior to initiating construction activities [FEIS, p. 1-9]. This phased 10-year approach closely approximates what would occur in the Selected Alternative, with the exception that, beyond 10 years, additional NEPA analysis may have to be completed before further disposal may occur.

The ROD [p. 3] discusses the modifications made to Alternative Din the Selected Alternative, and how these modifications are within the range of alternatives and effects analyzed in the FEIS. Table 1 of the ROD also summarizes the potential effects of the alternatives, including the effects of the Selected Alternative. Overall, I believe the FEIS and ROD provide the public a clear depiction of the effects of the Selected Alternative, and these effects are within the range of effects discussed in the DEIS and FEIS.

With regard to Appellant's assertion that the Forest Service should have prepared a Supplemental EIS, the CEQ regulations implementing NEPA at 40 CFR 1502.9( c )( 1) state that agencies shall prepare supplements to either draft or final EISs if"[ t ]he agency makes substantial changes in the proposed action that are relevant to environmental concerns" or "[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." The Forest Service did not make "substantial changes to the proposed action." The October 6, 2010 scoping letter [PR #744_ 0302, p. 7] states that the proposed action provides tailings disposal capacity for a period of 30-50 years. This alternative was clearly identified and described in the DEIS, and was carried forward through the rest of the analyses.

As for "significant new circumstances or information relevant to environmental concerns," the Responsible Official acknowledges that information was provided during the preparation of the FEIS that raised concerns about the feasibility of the second TDF proposed under Alternatives C and D [ROD, p. 10]. While new information might sometimes signal that a supplement is

Greens Creek Appeal Recommendation

appropriate, the facts in this case do not warrant a supplement. The Selected Alternative is effectively a "subset" of an existing alternative, unaffected by new infonnation. The Responsible Official limited his decision to the area where the effects and feasibility were known. In addition, the ROD expressly states:

5

Although the Selected Alternative is a modification of Alternative D, adopting it does not preclude consideration or selection in the future of any of the action alternatives considered in this EIS, or other new feasible alternatives that may arise, once the additional infonnation described in this Decision is gathered, analyzed, and reviewed through future NEPA processes.

(emphasis added) [ROD, p. 14]. If the Responsible Official chooses to select another alternative or components of another alternative from the Greens Creek FEIS in the future, a supplemental EIS may be appropriate, depending on the outcome of the analysis and review of the new information described in the ROD. However, I do not believe a supplemental EIS is warranted at this time.

In conclusion, while the Selected Alternative may not meet the longer term needs of the mine, it does respond to the purpose and need for the project to "consider certain changes to the approved HGCMC GPO regarding tailings and waste rock disposal and related infrastructure." The proposed action was clearly identified and carried forward throughout the analyses, and the effects of the alternatives were appropriately analyzed. The public had an opportunity to review the potential effects and provide comment, and those comments were incorporated into the final analyses. The Selected Alternative is within the range of alternatives and effects disclosed in the DEIS and FEIS. As a result, I believe the FEIS is sufficient and a supplemental EIS is not warranted at this time.

Issue 2. Whether the Forest Service has adequately audited and monitored implementation of the Greens Creek Land Exchange Act.

Appellant asserts that the Forest Service has failed to provide any information as to what extent previous and current mining activities are occurring on preexisting or exchange properties, that there is no documentation as to whether the Forest Service has ever audited or independently verified the information provided by HGCMC or its predecessor regarding the extent of extra lateral rights (ER) with respect to its existing claims, and that this prevents the Forest Service from determining whether the mine is (and has been) operating on valid claims.

Discussion

Both SEA CC and ACA have expressed concerns about implementation of the Greens Creek Land Exchange Act and whether the Forest Service has audited or monitored HGCMC's activities on the property it acquired in the Act. The ACA's November 8, 2012 Resolution [PR #744_0404] listed the lack of monitoring information regarding ER for HGCMC at Greens Creek as a concern, and the scoping letter from SEACC [PR #744_0295] questions whether HGCMC has the ore reserves to undertake the long-term expansion plan and discusses the lack

Greens Creek Appeal Recommendation 6

of information available from the Forest Service on the status ofHGCMC's ER and development at the Greens Creek mine. The issue apparently did not emerge in the planning process as one that needed to be addressed in the EIS, nor do I think it should have been.

The Greens Creek Land Exchange Act and Agreement [PR #744_0203, #745_0206] describe the requirements under the Act for continued monitoring of pre-existing ER, collecting royalty payments (if required as a result of mining beyond the ER), and cooperating with other agencies in the administration of the Act on the lands included in the exchange. The record indicates that the Forest Service has generally complied with this requirement.

In 1997, 1998, 2007, and 2008, the Forest Service conducted formal and informal reviews of HGCMC's underground mine development (see SEACC's appeal attachments). I agree that continued monitoring is needed; however, the importance of the monitoring is to make sure that ER are being followed. If development is occurring off of existing mining claims or the ER HGCMC obtained in the Act, royalties are owed to the United States. While the Forest Service's compliance with the intent of the Act and Agreement regarding ER is an important factor to monitor, it is not relevant to the proposed action, the alternatives considered, or the analysis of the effects of those alternatives. The location and construction of tailings facilities to facilitate active mining operations is not directly related to whether HGCMC's ER have been monitored and confirmed. It is mainly an issue of financial responsibility in the administration of the Greens Creek mine. The extent of the environmental effects may be affected by additional development of the ER or beyond the ER, but those effects will be the same regardless of whether HGCMC owes the United States royalties. Therefore, I believe this issue is outside the scope of the Greens Creek EIS.

Issue 3. Whether the EIS adequately discloses consideration of the long-term and short-term costs of mitigation measures in the context of the economic viability of mining operations.

Appellant asserts that information regarding the feasibility of alternatives must be included as part of the NEPA analysis so that the Forest Service can take a hard look at mitigation measures, such as flow augmentation technology, that avoid the effects of mixing toxic pollutants into high quality waters like Young Bay.

Discussion

The regulations implementing NEPA at 40 CFR 1502.16 require agencies to consider the potential direct and indirect effects of proposed activities, and their significance, on the environment. As stated in response to Appellant's comments related to this issue, they do not require agencies to conduct a cost-benefit analysis of each alternative [FEIS, p. A-19].

The regulations also require agencies to "rigorously explore and objectively evaluate all reasonable alternatives" [40 CFR 1502.14(a)]. The Greens Creek DEIS and FEIS included a no­action alternative and 4 action alternatives. These action alternatives were based on a thorough review of both technical and financial feasibility, and the project record demonstrates that the feasibility of these alternatives and their related costs were thoroughly reviewed and considered [see, for example, PR #744_0268, #744_ 427, #744_274; see also FEIS, Appendix A, pp. A-11 to

Greens Creek Appeal Recommendation 7

A-12, A-19]. These documents include an exchange ofreports and letters between the Forest Service and HGCMC, including information that compares the economic feasibility/costs of the various action alternatives at the mine. The Technical Report (Preliminary and Comparative Construction Cost Analysis) prepared for the project represents a conceptual and semi­quantitative comparison of the action alternatives in terms of financial costs to the company [PR #744_0268]. HGCMC responded to this Report [PR #744_0274], providing a more quantitative analysis of the action alternatives, concluding that "Alternative Bis the only technically, environmentally, and economically feasible alternative."

While the Responsible Official acknowledged HGCMC's position in the ROD, he also stated that he was "not confident that these alternatives are infeasible" and ''believe[ s] additional information needs to be collected regarding feasibility of alternative sites before authorizing activities that would affect the fish-bearing portions of Tributary Creek" [ROD, p. 10]. In my opinion, the Responsible Official has adequately considered the costs of the action alternatives, and his decision demonstrates that he worked hard to balance those costs with the potential environmental effects of the project.

For alternatives that are eliminated from detailed study, the NEPA regulations require agencies to "briefly discuss the reasons for their having been eliminated" [ 40 CFR 1502.14(a)]. The Greens Creek DEIS, FEIS, and project record demonstrate that the Forest Service did consider several other alternatives that were not carried forward in the DEIS and FEIS. These include alternative TDF locations, alternative facility designs, and reduction of pyrite concentrate in the tailings and alternative water treatment methods.

Alternative facility locations included shipping tailings off-site. As stated in the FEIS, the costs associated with shipping tailings off-site make such an alternative prohibitively expensive [see, for example, FEIS, p. 2-32]. Alternative on-site locations were also considered, and the FEIS describes the process used to consider these other locations, which included a review of slope, presence of wetlands, and drainages supporting anadromous fish populations [pp. 2-32 to 2-33]. While this process led to the development of the facility location identified for Alternatives C and D, no other suitable alternative on-site locations were identified [Id.]. Alternative facility designs, including disposal of tailings in a slurry form, were also considered but eliminated due to greater land disturbance and higher volumes of water to be managed (for tailings slurry disposal) and costs, complexity, and impacts to wetlands (alternative facility design) [p. 2-33]. Reducing the pyrite concentration in the tailings was also considered, as it had been for the 2003 Greens Creek EIS. This alternative was not carried forward because oflogistical and operational constraints and the potential for more adverse effects on water quality, aquatic life, ANM resources, and human health [pp. 2-33 to 2-34]. The FEIS also discusses the flow augmentation technology suggested by Appellant. As stated in the FEIS, flow augmentation is a method that could be used to dilute the effluent prior to discharge. This discharge is regulated by the Environmental Protection Agency (EPA) and the Alaska Department of Environmental Conservation (ADEC), and the Forest Service cannot compel these agencies to require particular treatment technologies or dilution methods [p. 2-31].

Greens Creek Appeal Recommendation 8

In my opinion, the ROD, FEIS, and project record demonstrate that the Forest Service considered reasonable alternatives for the Greens Creek project, and adequately explained why other alternatives were eliminated from detailed consideration. The Forest Service was not required to conduct a cost-benefit analysis of the alternatives, but did consider the technical and financial feasibility of the different alternatives along with the environmental costs of those alternatives, and the Forest Supervisor's decision reflects that consideration. As stated in the ROD, the Forest Supervisor believes that additional information regarding the feasibility of alternative sites should be collected and reviewed before authorizing activities that would affect the fish-bearing portions of Tributary Creek within the ANM. I believe the Forest Supervisor's decision demonstrates an adequate consideration of the costs of the project - both the financial costs to HGCMC and the environmental costs associated with expansion of the TDF further into ANM or the effects associated with construction of a second TDF - and is reasonable given the need to ensure that operations at the Greens Creek mine can continue while additional information is gathered, analyzed, and reviewed.

Issue 4. Whether the EIS adequately analyzed the cumulative effects of mining development under the 1995 Greens Creek Land Exchange Act.

Appellant asserts that the Act allows for mining through 2095, but that the FEIS does not provide any quantified or detailed information of the cumulative effects associated with a long-term strategy for tailings disposal. Appellant asserts that there is no information on the location of additional disposal areas or the direct, indirect, or cumulative effects of this additional tailings disposal on affected resources, including Monument values, and that the general statements in the FEIS about cumulative effects on marine aquatic resources do not constitute the "hard look" required by NEPA.

Discussion

The CEQ regulations implementing NEPA define "cumulative impact" as the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (federal or non­federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time [40 CFR 1508.7].

Appellant asserts that the cumulative effects analysis should project potential effects, in detail, all the way until 2095 because that is the timeframe identified in the Greens Creek Land Exchange Act. I disagree. The Act represents an agreement between HGCMC and the United States and not a commitment to do anything on the ground, much like a forest plan sets the bounds for the types of projects that may be done but doesn't provide the site-specific information needed to conduct a detailed project analysis. Appellant suggests that because the FEIS mentions the possibility of mining until 2095 [p. 3-295], that it is a given fact that mining activities will continue to that date because of the date in the Act. However, the same section of the FEIS states there are "no proposals to mine past 50 years."

Greens Creek Appeal Recommendation 9

The FEIS acknowledges that if mining activities were to continue beyond 50 years, approximately 150 acres of additional disposal area may be needed. The FEIS also briefly discusses the effects on various resources should development continue until 2095 [pp. 3-303 through 3-312]. Projecting out 30 to 50 years is a long time by any project standards, and there is a great deal of uncertainty in doing so for that length of time. In his comments on the DEIS [PR #744_687], even Appellant acknowledges that geotechnical issues may arise [p. 5], "dumping rates may increase" [p. 6], and "production may increase due to more efficient technology'' [p. 6]. With changing metal prices, new technology (including those that may reduce disposal rates), unknowns about the ore body, and other factors, it would be speculative to try to identify specific project needs and their related effects further out in time.

With regard to Appellant's assertions about the analysis of cumulative effects on marine aquatic resources, the FEIS and project record demonstrate that the potential effects of the project on marine resources have been a major consideration throughout the planning and decision-making process. The project record includes discussions of pre-mining conditions in Hawk Inlet and how they may have been affected by activities at the Greens Creek mine [see, for example, PR #744 0141, #744 0750]. The FEIS and project record include a thorough discussion of the - -past and present monitoring programs that are conducted by the regulatory agencies, as well as the results of that monitoring. The FEIS discusses the potential effects of the project on aquatic resources [pp. 3-84 to 3-113], and this analysis is based on the monitoring results, projected effects of the proposed TDF expansion, adaptive management strategies, and infonnation obtained from other regulatory agencies. The FEIS discusses the potential cumulative effects on aquatic resources [pp. 3-304 to 3-305], concluding:

Cumulative effects are not anticipated to produce significant adverse impacts to aquatic resources. Effects to aquatic resources would be similar if mining continued through 2095, although the location of waste facilities may vary, potentially affecting new watersheds and additional fish habitat.

I believe this conclusion is based on sound monitoring results and the best available information regarding future projections.

In my opinion, the analysis of the potential cumulative effects associated with the Greens Creek project were adequately considered and disclosed in the FEIS and project record.

Issue 5. Whether the subsistence analysis conducted for the Greens Creek project was adequate and consistent with Section 810 of the Alaska National Interest Lands Conservation Act (ANILCA) and NEPA.

Appellant asserts that the finding that the Selected Alternative will not significantly affect customary and traditional uses in the Hawk Inlet/Greens Creek area ignores the adverse effects on such uses resulting from past, present, and reasonably foreseeable operations of the Greens Creek mine. Appellant asserts that the Forest Service relies on the fact that Angoon residents did not report use areas within Hawk Inlet from 1991-1995 to support its conclusion, and that this ignores the long history of this traditional use area. Appellant furthers asserts that the displacement of Hawk Inlet users has had significant cultural costs to Tribal members, and that

Greens Creek Appeal Recommendation

the ROD ignores the fact that construction and operation of the Greens Creek mine and its adverse effects on the resources and users of Hawk fulet and the surrounding uplands have resulted in cumulative significant impacts to Tribal members, in violation of ANILCA.

Discussion

10

Section 810(a) of ANILCA requires that in detennining whether to permit the use, occupancy, or disposition of public lands, an agency must evaluate the effects on subsistence uses and needs, the availability of other lands for the purposes sought to be achieved, and other alternatives that would reduce or eliminate the use, occupancy, or disposition of public lands needed for subsistence purposes. Section 810(a) also requires that no use or occupancy oflands under Federal jurisdiction can significantly restrict subsistence uses until the Federal agency determines that:

(A) such a significant restriction of subsistence uses is necessary, consistent with sound management principles for the utilization of the public lands, (B) the proposed activity will involve the minimal amount of public lands necessary to accomplish the purposes of such use, occupancy, or other disposition, and (C) reasonable steps will be taken to minimize adverse impacts upon subsistence uses and resources ....

The potential effects of the Greens Creek project on subsistence resources are discussed in Chapter 3 of the FEIS [pp. 3-234 to 3-248] and in Appendices Band G. Based on the analysis in the FEIS, the Forest Supervisor concluded that none of the action alternatives, including the Selected Alternative, would present a significant possibility of a significant restriction on access to, or use of, any subsistence resources [ROD, p. 30].

The FEIS displays reported use of wild renewable resources by the communities of Angoon, Hoonah, and Tenakee Springs. The FEIS properly acknowledges that "[ s ]ubsistence is part of a rural economic system, wherein families invest money in small-scale, efficient technologies to harvest wild foods" [FEIS, p. 3-235]. The FEIS states that during the most recent subsistence harvest surveys, no Angoon residents reported subsistence harvest within Hawk Inlet [p. 3-327]. Additionally, the public hearing held in Angoon in November 2012 (which is summarized in Appendix B of the FEIS) indicated that current subsistence use of Hawk fulet by the community of Angoon is "light and dispersed," and that the level of use is attributed to the closure of the cannery there 37 years ago and the loss of the commercial fishing industry in Angoon. Stated reasons during the hearings for decreased use of the Hawk Inlet area included distance from the community and the expense of fuel to get there.

fu my opinion, the analysis of the potential effects of the project on subsistence was adequate, and was conducted in accordance with Section 810 of ANILCA. The Forest Supervisor properly determined that the Selected Alternative did not present a significant possibility of a significant restriction on access to, or use of, any subsistence resources [ROD, p. 30]. This finding is reasonable considering the lack of reported contemporary subsistence use of the project area by Angoon residents, the distance of the project area from the community, and the availability of subsistence resources closer to Angoon, and the Forest Supervisor's conclusion that the Selected Alternative did not present a significant possibility of a significant restriction of subsistence uses was consistent with applicable law and policy direction.

Greens Creek Appeal Recommendation 11

Recommendation

In my opinion, the analysis in the Greens Creek EIS and project record is sufficient to support the Forest Supervisor's decision with respect to the issues raised in the appeal. Therefore, I recommend that you affirm the Forest Supervisor's decision.

QLtrt r(I . yYl t~~(_~~&J RUTH MONAHAN Appeal Reviewing Officer

Enclosures