Draft Biological Assessment is a Product of Collaboration

Draft Biological Assessment is a Product of Collaboration

Published on February 2, 2020


Midas Gold Idaho has recently come under attack from Earthworks and six members of congress who are communicating false statements presented as facts.

The truth is, Midas Gold has advocated for provisions within the law as it has existed and been used for 34 years to bring multiple stakeholders and perspectives into the early informal consultative stages of environmental review. At no point in this process is the regulatory authority, oversight or decision-making by federal, state or local agencies abdicated or lessened.

Midas Gold Idaho has sought to bring openness, collaboration, transparency and corporate responsibility to Idaho and its people. The Stibnite Gold Project will be good for Idaho and good for the environment and its innovative approach to environmental responsibility will have a positive influence on the site and mining across the United States.

Here are the facts to correct some of the more egregious misstatements from the letter:

Myth: The letter says: “Allowing a mining company to author its own BA (Biological Assessment) on its project’s potential impacts to ESA (Endangered Species Act) – listed species created potential conflicts of interest and undermines public confidence in the permitting process.”

Fact: Midas Gold is not writing the final Biological Assessment. Five federal agencies, three state agencies, Idaho tribes and Midas Gold are participating in informal consultation to prepare a draft of the Biological Assessment.

Early on in the permitting process, Midas Gold Idaho requested that the U.S. Forest Service hold informal consultation with federal and state agencies and Idaho tribes on Section 7 of the Endangered Species Act (ESA) as part of the process to prepare a draft Biological Assessment with broad input. However, the local officials at the Payette Forest did not want informal consultation opened to non-federal agency participants.

Despite this, we believed informal consultation with a broad range of stakeholders was critical to creating the best, most comprehensive, assessment of the impact on endangered species. The entire purpose of ESA informal consultation is to identify ways to avoid and minimize potential impacts to federally-listed species as part of the project.

So, as allowed and encouraged under ESA regulations, we requested Non-Federal Representative (NFR) status so we could be at the table for the discussions around Section 7 informal consultation and continue to advocate additional stakeholders be brought into the process.

In fact, the U.S. Forest Service handbook promotes project applicants applying for the status, “There is a clear need for early, regular and fully informed coordination among federal agencies and applicants, in order to as completely as possible inform the consultation, resolve conflicts and design the project to minimize adverse effects.” There are similar statements in the ESA Consultations Handbooks jointly authored by National Oceanic and Atmospheric Administration (NOAA Fisheries) and the U.S. Fish and Wildlife Services as well.

While the U.S. Forest Service did not deny us NFR status, it is clear the Payette Forest Supervisor did not initially want to grant us NFR status. However, we strongly believed that it was wrong to exclude these other state and tribal parties and we elevated the request and were subsequently granted this status.

Once granted NFR status, we continued advocating, successfully, for additional participants to be brought into the informal consultation and to help prepare a draft Biological Assessment.

FACT: Without Midas Gold’s advocacy for a more comprehensive informal consultation and NFR status, critical voices would not have the opportunity for early input and collaboration.

It was very important to us that the informal consultation process be opened to these other federal and state agencies and Tribes because the interests of the parties are often different and distinct. If we had not encouraged and requested a collaborative informal consultation process, we would have missed opportunities for discussion on ways to avoid and minimize potential impacts.

In addition to the perspectives brought by NOAA Fisheries, which governs chinook salmon and steelhead, and U.S. Fish and Wildlife Services, which governs bull trout, the Idaho Department of Fish and Game and Idaho’s Office of Species Conservation needed to be a part of that discussion because they play a role in Idaho’s management of these species and add valuable information and experience.

Further, the voices and expertise of Idaho’s Tribes needed to be heard early, so their knowledge can be brought into the agencies’ thinking.

As the project proponent, we bring to the table years of data and analysis and a deep understanding of our proposed project. Direct conversation helps us understand the multiple regulatory and stakeholder perspectives and allows us to identify solutions that might not otherwise be considered.

FACT: Midas Gold is not in control of the report. The U.S. Forest Service has absolute authority over this process to such a degree that each informal consultation meeting and the content for each meeting must be approved by the U.S. Forest Service beforehand.

The process of preparing a draft BA through informal consultation works because it is collaborative. Despite our NFR status or involvement in the draft, we cannot do anything without first getting the permission of our lead agency. The U.S. Forest Service is required to provide guidance, supervision and independent review of the draft to ensure it meets all requirements. Regulations confirm that “if a biological assessment is prepared by the designated Non-Federal Representative, the Federal agency shall furnish guidance and supervision and shall independently review and evaluate the scope and contents of the biological assessment.”

As a result, we must seek permission from the U.S. Forest Service to convene meetings and get their approval on agenda items and meeting content. In these meetings, all the parties discuss the information available and the needs of the species from multiple perspectives. Midas Gold’s consultant, Brown and Caldwell, then compiles the content for the draft biological assessment based on what occurs in those meetings. That content then goes back to the participants for review.

Independent of any input from Midas Gold, the U.S. Forest Service will review the draft BA and direct the revisions it believes are necessary to ensure a complete and adequate BA. The U.S. Forest Service would then submit the BA to the U.S. Fish and Wildlife Service and the NOAA Fisheries for their independent review. These agencies would then independently prepare their respective Biological Opinions, which the project will be evaluated under ESA.  During their adequacy review, the U.S. Fish and Wildlife Service and the NOAA Fisheries can also request revisions and additions to the BA.

FACT: Contrary to what is stated in the Congressional letter, it is smart practice for applicants to take part in preparing the draft biological assessment.

ESA regulations, that have been on the books for 34 years, clearly state the authority for regulators to grant Non-Federal Representative status to project proponents to draft a BA because it promotes early collaboration and information sharing by all interested parties and benefits the species. This is something that has been done multiple times across six presidential administrations.

Myth: The letter states: This NFR status, and the associated memo that outlines the implementation plan for the Biological Assessment (BA), gives Midas authority to write the BA required by the Endangered Species Act (ESA). Allowing a mining company to author its own BA on its project’s potential impacts to ESA listed species creates potential conflicts of interest and undermines public confidence in the permitting process.”

FACT: As stated above, Midas Gold Idaho is not writing the final BA.

To claim that Midas Gold Idaho would use its status as an NFR to degrade the viability of the BA is an untrue accusation and would be pointlessly harmful to Midas Gold Idaho’s own objective of getting the project approved.

The U.S. Forest Service is the regulatory agency responsible for authoring the BA. Midas Gold is simply leading the preparation of a draft document as informed by a collaborative informal consultation with multiple state and federal agencies and tribes. This process will allow the document to be rigorously reviewed by all the agencies and tribes involved in the ESA informal consultation process.

The U.S. Forest Service regularly asks for information from the applicant across all areas of the project, because, often times, the applicant brings a valuable source of knowledge and project expertise.

The ESA informal consultation and NFR status was designed so that project proponents and a range of agency and tribal participants could have a seat at the table. Anyone suggesting otherwise clearly needs to become more informed on the rules and regulations governing this process for decades.

Myth: The letter says: “It (allowing Midas Gold Idaho to serve as a Non-Federal representative) also fails the spirit of the ESA and potentially violates related National Environmental Policy Act (NEPA) regulations.”

FACT: To be very clear, the Biological Assessment and NEPA are not the same thing.

There are times when a biological assessment (which again, it is important to note, is being written by the U.S. Forest Service in this case) helps inform portions of an Environmental Impact Statement (EIS). Regardless, the EIS is written by regulators, not the proponent.

As outlined in Section 7 of the ESA, the Federal Agency in charge of the review process determines the role of the applicant in the process. In this case, the U.S. Forest Service granted Midas Gold Non-Federal Representative status, as clearly allowed and frequently practiced under the ESA for 34 years.

Myth: The letter says: “The mine plan involves developing three open pits and permanently storing 450 million tons of toxic mine waste. Midas further proposes to store their waste in the Meadow Creek Valley, critical habitat for the salmon and bull trout.”

FACT: Today, there are over three million tons of tailings from the World War II era laying unconstrained in the Meadow Creek Valley, capped by an additional seven million tons of spent heap leach ore.  There are another ~30 million tons of legacy waste rock lying around the site from prior companies’ mining activities. The ecosystem at Stibnite, and aquatic life that depend on it, need help.

Midas Gold has proposed a redevelopment and restoration plan to better manage surface water routes to improve both ground and surface water quality. Efforts include removing and reprocessing millions of tons of historic tailings currently sitting in Meadow Creek Valley and safely storing them in a fully lined facility and relocating millions of tons of spent ore and waste rock to properly designed and engineered facilities. It also involves reconnecting salmon to spawning and rearing grounds in Meadow Valley that have been blocked for more than 80 years by the now abandoned Yellow Pine mining pit. Further, Meadow Creek has been diverted into a rock lined ditch around the historic tailings for more than 30 years, cutting off access to its headwaters.  River and habitat restoration by Midas Gold will help improve water quality and provide miles of additional spawning and juvenile rearing habitat.

Midas Gold seeks to restore and revitalize fish habitat along the East Fork of the South Fork of the Salmon River and Meadow Creek – not fill it with waste and leave fish nowhere to go. Locating future tailings and development rock well upstream of the current locations will maximize the available habitat made available for restoration of fish populations.

Myth: The letter says: “The Nez Perce Tribe has invested considerable resources restoring salmon and salmon habitat in the area harmed by previous mining operations.”

FACT: The tribe has spent time and money from the Bonneville Power Administration transporting fish from one part of the river to the next, since fish migration is currently blocked by an abandoned mine pit.

The Nez Perce Tribe only truck and transport fish to Meadow Creek in years when they have extra fish in the hatchery they operate. We are not aware of any resources spent by the tribe on site restoration at Stibnite or fixing the root cause of the problems at Stibnite. Nor have they asked for permission from regulators to do any restoration work at site. In fact, no one has for many years and what reclamation that was done in the past was minimal stabilization of issues that did not fix the problems, which is why the site remains in such poor condition. Midas Gold is the only one with the plan and the financial resources to return the site and fish habitat to something close to what it once was.

The Nez Perce Tribe has worked hard to restore habitat and improve fish populations in drainages like Johnson Creek and the South Fork, located several miles from the site, which is to be commended and something Midas Gold hopes to replicate in the Stibnite area.

Myth: The letter states “Granting NFR designation for a major cyanide leach gold mine to a Canadian mining company is unnecessary, inappropriate and conflicts with the public’s interest in unbiased, science-led decision making.”

FACT: First, Midas Gold Idaho, which operates the Stibnite Project, is headquartered in Idaho and the company’s employees live and work across the state.

FACT: Second, Midas Gold Idaho has spent tens of millions of dollars on science-led research, planning, and exploring the site and the impacts of the proposed project on the site.

All of the company’s research is science-led, using experts in their fields, giving the public access to unbiased, scientific information. This information is subject to rigorous review by federal and state agencies, as well as tribes, and will form part of the Draft EIS that, once published, is open for public scrutiny during the comment period.

Myth: The letter states: “Midas therefore has a compelling financial interest in avoiding this determination or underestimating the magnitude of the potential adverse impacts of a ‘may effect’ determination. To avoid this conflict, the U.S. Forest Service should require an independent, unbiased expert to write the BA.”

FACT: An unbiased expert currently is writing the BA – the U.S. Forest Service.

Midas Gold Idaho’s financial interest is rooted in a strong, defensible, science-based evaluation of the project. It would be counter to our interest to degrade the viability of the BA or any component of the project’s regulatory review and leave a decision open to challenge.

In fact, advocating for a more inclusive and collaborative effort by multiple federal and state agencies and tribes is leading to a stronger, more complete analysis.

Transparency and collaboration are valuable, and to claim that Midas Gold Idaho would use its status as an NFR to degrade the permitting process is an untrue accusation and would be pointlessly harmful to Midas Gold Idaho’s own objective of getting the project approved.

Myth: The letter states: “NEPA regulations require that any entities preparing portions of an Environmental Impact Statement not have any “financial interest in the outcome of the project.”  The Midas BA is a critical portion of the EIS process analyzing the mine’s impacts and consideration of alternatives.”

FACT: Midas Gold is not preparing the Environmental Impact Statement.

The Environmental Impact Statement will only be written by federal regulators led by the U.S. Forest Service, with support from an independent third-party contractor under sole direction of the U.S. Forest Service. Finally, it is important to note the Biological Assessment will not be part of the EIS, will not be finalized until the preferred or selected alternative is identified in the Draft EIS and the final BA will be written by the U.S. Forest Service. Further, the Biological Opinions that form the basis of any decision are written by the U.S. Fish & Wildlife Service and NOAA Fisheries.


The American people must have confidence in the scientific review process required of any proposed projects that may have possible environmental implications. That is why Midas Gold has taken the time and dedicated resources to ensure the Stibnite Gold Project is as transparent, environmentally conscious and well-researched as possible, so it will benefit Idaho for years to come.

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