Case 1:20-cv-00409-DCN Document 1 Filed 08/18/20 Page 1 of 26
`
`Christopher H. Meyer [ISB No. 4461]
`Preston N. Carter [ISB No. 8462]
`GIVENS PURSLEY LLP
`601 West Bannock Street
`P.O. Box 2720
`Boise, Idaho 83701-2720
`Office: (208) 388-1200
`Fax: (208) 388-1300
`chrismeyer@givenspursley.com
`prestoncarter@givenspursley.com
`
`Attorneys for Plaintiffs
`
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF IDAHO
`
`MIDAS GOLD IDAHO, INC.,
`IDAHO GOLD RESOURCES COMPANY, LLC,
`and STIBNITE GOLD COMPANY,
`
`No.
`
`COMPLAINT AND JURY DEMAND
`
`
`Plaintiffs,
`
`
`
`v.
`
`THE UNITED STATES OF AMERICA; U.S.
`DEPARTMENT OF AGRICULTURE; THE
`UNITED STATES FOREST SERVICE; SONNY
`PERDUE in his official capacity as U.S. Secretary
`of Agriculture; and VICKI CHRISTIANSEN in her
`official capacity as the Chief of the United States
`Forest Service.
`
`Defendants.
`
`
`
`
`
` INTRODUCTION
`
`1.
`
`Plaintiffs Idaho Gold Resources Company, LLC (“IGRC”), Stibnite Gold Company
`
`(“SGC”), and Midas Gold Idaho, Inc. (“MGII”) (hereinafter collectively referred to as “Midas” or
`
`“Plaintiffs”) bring this action under 33 U.S.C. § 1365(a), the citizen enforcement provision of the
`
`Federal Water Pollution Control Act, also known as the Clean Water Act (“CWA”), against
`
`Defendants the United States of America, United States Department of Agriculture, the United
`
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`States Forest Service (“USFS”), U.S. Secretary of Agriculture Sonny Perdue, and USFS Chief
`
`Vicki Christiansen in their official capacities (“Defendants”).
`
`2.
`
`The CWA prohibits the “discharge of any pollutant by any person,” 33 U.S.C.
`
`§ 1311(a). The discharge of a pollutant is “any addition of any pollutant to navigable waters from
`
`any point source.” Id. § 1362(12)(A). “Navigable waters” is defined as “the waters of the United
`
`States, including the territorial seas.” Id. § 1362(7). A “point source” is a “discernible, confined
`
`and discrete conveyance.” Id. § 1362(14). A party who obtains and complies with a National
`
`Pollutant Discharge Elimination System (“NPDES”) permit is exempt from the general prohibition
`
`on point source pollution. Id. §§ 1311(a), 1342(a)(1).
`
`3.
`
`On August 8, 2019, the Nez Perce Tribe (“Tribe”) filed a suit against Midas
`
`captioned Nez Perce Tribe v. Midas Gold Corp., No. 01:19-cv-307 (D. Idaho) (“Tribe’s Suit”)
`
`alleging that in violation of the CWA, Midas (and their parent entity, Midas Gold Corp. (“MGC”))
`
`has discharged and continues to discharge pollutants from multiple point sources at the Stibnite
`
`Gold Project site (“the Site”) into the East Fork South Fork Salmon River (“EFSFSR”) and its
`
`tributaries without authorization by a valid NPDES permit(s).
`
`4.
`
`The Tribe seeks declaratory and injunctive relief prohibiting Midas and MGC from
`
`discharging pollutants into the EFSFSR and its tributaries without obtaining and complying with
`
`a valid NPDES permit(s). The Tribe also seeks CWA civil penalties, under CWA § 309(d), 33
`
`U.S.C. § 1319(d), against Midas and MGC, jointly and severally, for each and every violation
`
`committed, to be paid to the U.S. Treasury. Finally, the Tribe seeks an award of litigation costs
`
`including attorney and expert witness fees, under CWA § 505(d), 33 U.S.C. § 1365(d), and any
`
`other applicable cost and fee recovery statutes.
`
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`5.
`
`Plaintiffs IGRC and SGC hold patented and unpatented mining claims in the
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`Stibnite-Yellow Pine Mining District (“District”), which is located within the Boise and Payette
`
`National Forests. Four of the point sources alleged in the Tribe’s Suit—referred to by the Tribe
`
`as the Hangar Flats Tailings Pile, Defense Minerals Exploration Administration (“DMEA”) Adit
`
`and Waste Rock Dump, the Bonanza Adit, and the Cinnabar Tunnel—are situated fully or partially
`
`on National Forest System (“NFS”) lands within these Forests that are subject to unpatented
`
`mining claims.
`
`6.
`
`The lands underlying the unpatented mining claims where the Hangar Flats Tailings
`
`Pile, DMEA Adit and Waste Rock Dump, the Bonanza Adit, and the Cinnabar Tunnel are located
`
`are NFS lands owned by the United States and managed by USFS.
`
`7.
`
`The EFSFSR and its tributaries, Sugar Creek and Meadow Creek, are each a
`
`navigable water. Due to historic mining activities and/or natural mineralization in the land in this
`
`area, mineral constituents such as aluminum, arsenic, antimony, cyanide, iron, manganese,
`
`mercury, and thallium have entered the EFSFSR and its tributaries from some of the lands subject
`
`to IGRC and SGC’s mining claims at concentrations above applicable water quality criteria. Such
`
`contributions have occurred on multiple occasions during the past five years and are ongoing on
`
`at least one of those properties. Each of these pollutants can negatively impact the health of fish,
`
`other aquatic biota, birds, mammals, and humans.
`
`8.
`
`IGRC and SGC’s holdings in the District include patented mining claims on private
`
`land that are downstream of the Hangar Flats Tailings Pile, the DMEA Adit and Waste Rock
`
`Dump, the Bonanza Adit, and the Cinnabar Tunnel. Discharges from these locations undermine
`
`Midas’s efforts and vision to restore the Site and environment concurrent with all future mining
`
`phases under its Plan of Restoration and Operations (“PRO”) which is now undergoing review by
`
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`USFS under the 36 C.F.R. § 228 Subpart A regulations. Midas may be forced to incur additional
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`costs to remedy the waters impacted by the discharge of pollutants at the DMEA Adit and Waste
`
`Rock Dump, the Bonanza Adit, the Cinnabar Tunnel, and unpatented portions of the Hangar Flats
`
`Tailings Pile in order to complete the planned restoration as envisioned in its PRO. Any past or
`
`ongoing discharges therefore harm IGRC and SGC’s rights as landowners and may require MGII
`
`to perform additional work to address water quality issues at the Site.
`
` JURISDICTION AND VENUE
`
`9.
`
`Jurisdiction is proper in this Court under the CWA, 33 U.S.C. § 1365(a), which
`
`vests U.S. district courts with jurisdiction over citizen enforcement actions like the one at issue in
`
`this case.
`
`10.
`
`The requested relief is proper under the CWA, 33 U.S.C. § 1365(a), and under 28
`
`U.S.C. §§ 2201-2202 because Midas will likely have evidentiary support after a reasonable
`
`opportunity for further investigation or discovery that USFS has discharged and continues to
`
`discharge pollutants without a valid NPDES permit(s).
`
`11.
`
`12.
`
`Plaintiffs are citizens under the CWA. 33 U.S.C. § 1365(g).
`
`As required by the CWA, Midas provided Defendants with notice of its intent to
`
`sue sixty days prior to filing this Complaint. 33 U.S.C. § 1365(b)(1). At the same time, Midas
`
`also provided notice of the impending action to the United States Environmental Protection
`
`Agency (“EPA”) and Idaho Department of Environmental Quality (“IDEQ”) officials, as required
`
`by the CWA. Id. See Notice of Intent, June 11, 2020 and Attachments thereto, which are attached
`
`hereto as Exhibit A (“Ex. A”), and incorporated by reference. Neither agency has commenced an
`
`action that constitutes diligent prosecution to redress Defendant’s CWA likely violations.
`
`Therefore, this action is permitted to commence under the CWA.
`
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`13.
`
`The United States and USFS have waived sovereign immunity under 33 U.S.C.
`
`§ 1365(a)(1).
`
`14.
`
`Venue is proper in this Court under the CWA, 33 U.S.C. § 1365(c)(1), because the
`
`alleged point source pollutant discharges are located within the District of Idaho.
`
` PARTIES
`
`Midas Gold
`
`15.
`
`Plaintiffs MGII and IGRC are Idaho companies and wholly owned subsidiaries of
`
`MGC.1
`
`16.
`
`Plaintiff SGC is an Idaho company and wholly owned subsidiary of IGRC.
`
`17. MGII was incorporated in the State of Idaho to provide exploration and
`
`development services to the Stibnite Gold Project. MGII has service agreements with both SGC
`
`and IGRC under which it is engaged to provide certain professional, human resources,
`
`administration, accounting, exploration, regulatory, engineering and other services, including on
`
`SGC’s and IGRC’s patented and unpatented claims in the District, that would otherwise be
`
`reasonably inferred to include the scope of the services contemplated and as described in the
`
`services agreement.
`
`18.
`
`IGRC is an Idaho LLC formed with a purpose of holding patented and unpatented
`
`claims in the District, including the West End Deposit and a majority of the Stibnite Gold Project
`
`exploration targets. IGRC has rights to certain patented and unpatented mining claims in the
`
`District.
`
`
`1 MGC is not a Plaintiff in this suit. MGC has no landholdings at issue in this case and was
`organized to locate, acquire, and develop mineral properties located principally in the Stibnite
`Mining District in Valley County, Idaho. Its principal business activity continues to be the
`advancement of the Plaintiffs’ Proposed Mine in Valley County, Idaho.
`
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`19.
`
`SGC was formed as an Idaho company with a purpose of holding patented and
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`unpatented claims in the District, including the Hanger Flats and Yellow Pine Deposits, the Fern
`
`prospect, and an option to acquire the historic Cinnabar mine. SGC has rights to certain patented
`
`and unpatented mining claims in the District.
`
`Defendants
`
`20.
`
`The United States is a sovereign government that owns legal fee simple title to NFS
`
`lands managed by USFS.
`
`21.
`
`U.S. Department of Agriculture is a cabinet-level Department within the executive
`
`branch of the federal government and is an agency or instrumentality of the United States.
`
`22.
`
`USFS is an administrative agency within the Department of Agriculture and is an
`
`agency or instrumentality of the United States. USFS administers all NFS lands on behalf of the
`
`United States. USFS is charged with managing the public lands and resources of the Boise and
`
`Payette National Forests in accordance and compliance with federal laws and regulations.
`
`23.
`
`Portions of the District and the Site are located on NFS land within the Payette and
`
`Boise National Forests, which are a part of USFS.
`
`24.
`
`The United States owns the paramount fee title to the lands on which third-parties
`
`hold unpatented mining claims on NFS lands. The United States is therefore the CWA “owner”
`
`of the lands subject to those claims.
`
`25.
`
`USFS manages, directs, or conducts operations on NFS lands subject to unpatented
`
`claims, including operations specifically related to pollution, and makes decisions about
`
`compliance with environmental regulations, and is therefore an “operator” of those locations.
`
`26.
`
`USFS operates NFS lands subject to unpatented claims on behalf of the United
`
`States.
`
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`27.
`
`Defendant Sonny Perdue is the Secretary of the United States Department of
`
`Agriculture, and in his official capacity is ultimately responsible for NFS land, including the
`
`Payette and Boise National Forests.
`
`28.
`
`Defendant Vicki Christiansen is the USFS Chief, and in her official capacity is
`
`responsible for NFS land, including the Payette and Boise National Forests.
`
` LEGAL BACKGROUND
`
`CWA
`
`29.
`
`Congress adopted the CWA “to restore and maintain the chemical, physical, and
`
`biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The CWA establishes an
`
`“interim goal of water quality which provides for the protection and propagation of fish, shellfish,
`
`and wildlife.” Id. § 1251(a)(2). To these ends, Congress developed both a water quality-based and
`
`technology-based approach to regulating discharges of pollutants from point sources into
`
`navigable waters.
`
`30.
`
`The CWA prohibits the “discharge of any pollutant by any person” to navigable
`
`water, unless authorized by a valid NPDES permit(s). 33 U.S.C. §§ 1311(a), 1342(a).
`
`31.
`
`“Discharge of a pollutant” means “any addition of any pollutant to navigable waters
`
`from any point source.” 33 U.S.C. § 1362(12). “Pollutant” is defined to include solid, chemical,
`
`and industrial waste discharged into water. Id. § 1362(6). A “point source” is “any discernible,
`
`confined and discrete conveyance,” id. § 1362(14), and “navigable waters” are defined as “the
`
`waters of the United States,” id. § 1362(7).
`
`32.
`
`The CWA’s citizen suit provision authorizes “any citizen” to “commence a civil
`
`action on his own behalf” in federal district court against “any person “[]including (i) the United
`
`States, and (ii) any other governmental instrumentality or agency to the extent permitted by the
`
`eleventh amendment to the Constitution[,]” who is alleged to be in violation of “an effluent
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`standard or limitation” of the Act. 33 U.S.C. § 1365(a).” “‘[C]itizen’ means a person or persons
`
`having an interest which is or may be adversely affected.” Id. § 1365(g).
`
`33.
`
`Citizens are required to provide notice of any alleged violations sixty days prior to
`
`commencing suit. 33 U.S.C. § 1365(b).
`
`34.
`
`A person is liable under the CWA for discharging pollutants without a NPDES
`
`permit if that person is an “owner or operator of any ‘facility or activity’ subject to regulation
`
`under the NPDES program.” 40 C.F.R. § 122.2. “Facility or activity means any NPDES ‘point
`
`source’ or any other facility or activity (including land or appurtenances thereto) that is subject to
`
`regulation under the NPDES program.” Id.
`
`35.
`
`A person or entity is an operator of a facility if it “manage[s], direct[s], or
`
`conduct[s] operations specifically related to pollution, that is, operations having to do with the
`
`leakage or disposal of hazardous waste, or decisions about compliance with environmental
`
`regulations.” United States v. Bestfoods, 524 U.S. 51, 66–67 (1998) (per curiam).
`
`36.
`
`The CWA provides for the imposition of civil penalties of up to $37,500 per
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`violation per day that occurred through November 2, 2015, and up to $54,833 per violation per
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`day that occurred after November 2, 2015. 33 U.S.C. § 1319(d) (adjusted by 40 C.F.R. § 19.4 and
`
`the Civil Monetary Penalty Inflation Adjustment Rule, 84 Fed. Reg. 2050, 2056-60 (Feb. 6, 2019)).
`
`37.
`
`District courts may issue injunctions to “enforce such [CWA] effluent standard[s]
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`or limitation[s].” 33 U.S.C. § 1365(a); Nat. Res. Def. Council v. Sw. Marine, Inc., 236 F.3d 985,
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`999–1000 (9th Cir. 2000).
`
`38.
`
`The CWA does not contain a limitations period for citizen suit enforcement actions,
`
`but 28 U.S.C. § 2462 provides a five-year statute of limitations for a suit or proceeding for the
`
`enforcement of any civil fine or penalty.
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`Framework for Mining on USFS Land
`
`39.
`
`An unpatented mining claim is a private possessory interest that can be established
`
`on lands owned by the United States that are open to mineral entry under the General Mining Law
`
`and that has been located in accordance with applicable law and regulations. Under the General
`
`Mining Law, a citizen (including a corporate entity) who holds an unpatented mining claim has a
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`conditional right to possess, use, and otherwise occupy their claim for mineral exploration and
`
`development purposes, subject to the environmental protection provisions in the applicable surface
`
`management regulations, and applicable federal and state environmental laws. The surface of the
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`federal lands upon which an unpatented mining claim is located is not private property.
`
`40.
`
`If an unpatented mining claim is located on NFS land, ownership of the land is
`
`retained by the United States and the land continues to be administered and managed by USFS.
`
`41.
`
`The United States and USFS have the right to manage both the land surface and
`
`surface resources subject to an unpatented mining claim, and do so through regulations of the
`
`Secretary of Agriculture contained in 36 C.F.R. § 228 Subpart A. See also 30 U.S.C. § 612(a)
`
`(stating holders of unpatented mining claims may not use property for purposes unrelated to
`
`mining); id. § 612(b) (stating United States retains rights in surface and vegetative estates of
`
`unpatented claims). These regulations include a requirement to obtain USFS permission for
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`operations that might significantly disturb the surface resources. See 36 C.F.R. §§ 228.4–228.5
`
`(mining activities require permit with an approved plan of operations); id. § 251.50 (non-mining
`
`operations also require approval and permit).
`
`42.
`
`USFS promulgated the 36 C.F.R. § 228 Subpart A regulations under the authority
`
`of the Organic Administration Act of 1897, 16 U.S.C. § 551 et seq.
`
`
`
`
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` BACKGROUND FACTS
` The Stibnite-Yellow Pine Mining District
`
`43.
`
`The Site is located in the District, in Valley County, 92 miles by air northeast of
`
`Boise and 10 miles east of Yellow Pine, Idaho. Midas’s holdings in the District encompass both
`
`unpatented claims on NFS lands and patented mining claims on private land held by IGRC and
`
`SGC.
`
`44.
`
`Portions of the District and the Site are within the Payette and Boise National
`
`Forests. The Boise National Forest was created in 1908 from portions of the Payette National and
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`Sawtooth Forest Reserves.
`
`45.
`
`From the 1920s through the 1950s, the Site was mined for gold, silver, antimony,
`
`tungsten, and mercury. The Site was again mined from the 1980s to the 1990s. This cumulative
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`mining activity created a disturbed footprint with open pits, waste rock dumps, spent heap leach
`
`piles/pads, and tailings piles that remain on the landscape today.
`
`46.
`
`In September 2016, MGII submitted its PRO for the Stibnite Gold Project, thus
`
`beginning the process to seek USFS approval to construct, mine, operate, and reclaim and restore
`
`the Site. Since then, USFS has been working with MGII and other local, state and federal
`
`regulatory agencies to review the PRO, prepare an Environmental Impact Statement (“EIS”) under
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`the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332, as part of its consideration
`
`of Midas’s PRO. Once the PRO is approved by USFS under 36 C.F.R. § 228 Subpart A
`
`regulations, MGII’s implementation of the PRO must be carried out in compliance with all
`
`applicable federal and state environmental laws, including the CWA. Until USFS approves the
`
`PRO, MGII is precluded from carrying out surface disturbing activities at the Site, including
`
`surface disturbing actions which may address and remedy potential point source discharges of
`
`pollutants under the CWA.
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`47. Midas’s vision for the Stibnite Gold Project is to undertake the restoration of the
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`abandoned, historically impacted Site before, during, and after the development of a modern
`
`mining operation that produces gold, silver, and the strategic mineral antimony. Central to this
`
`vision is the idea of environmental stewardship throughout the life of the Project. MGII’s plan for
`
`the restoration and operation of the Site means it will conduct site cleanup, mining, ore processing,
`
`and reclamation and restoration work at the Site that will leave surface streams in better condition
`
`than what currently exists.
`
`48.
`
`The restoration and mining operation proposed by MGII includes source removal
`
`and, in certain areas of the Site, recovery and reprocessing of legacy tailings and reuse of waste
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`rock and spent ore left behind by previous mining operations predating Midas’s involvement in
`
`the Site. Many of the most problematic legacy impacts in the District are related to the exploration,
`
`development, and operation of antimony and tungsten mining during World War II and the Korean
`
`War that was encouraged, funded, and, in some cases, directly undertaken by federal agencies on
`
`NFS land.
`
`49.
`
`The Site has been the subject of multiple site environmental characterization studies
`
`undertaken by federal and state agencies between 1974 and 2017, in addition to five engineering
`
`evaluation/cost analysis studies between 1999 and 2006. The Site also has been the subject of
`
`three major CERCLA consent decrees to address select issues of greatest priority.
`
`50.
`
`Those consent decrees resulted in cleanup activity by prior mine operators (or their
`
`successors), including Mobil Oil Corporation, the Estate of J.J. Oberbillig, and the Bradley Mining
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`Company. These efforts were conducted under the oversight of EPA, and activities on NFS land
`
`required the consent and approval of USFS.
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`51.
`
`Cleanup efforts in the District were not comprehensive, and legacy areas of concern
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`remain. Conditions of environmental concern exist on Midas’s holdings in the District due to
`
`activities that predate Midas’s formation and involvement in the District.
`
`52. Midas has made, and will continue to make, investments in restoring the water
`
`quality in the District and addressing harms to the environment, including the fisheries, that were
`
`caused by legacy mining operations. This restoration work is a fundamental aspect of the Stibnite
`
`Gold Project as proposed in Midas’s PRO. Midas is committed through the PRO to the cleanup
`
`of the Site as an early priority. Other cleanup activity is envisioned to take place in advance of
`
`new mining operations, and is expected to continue throughout the construction, operation, and
`
`closure stages of the Project. This integrated approach is designed to achieve a net environmental
`
`benefit for the District.
`
`53.
`
`As proposed in Midas’s PRO, both concurrent and post‐operations closure and
`
`reclamation will be undertaken so that the Site is left with a self‐sustaining natural ecosystem,
`
`enhanced habitat for the natural fish and wildlife populations, and improved water quality. Midas
`
`plans to develop water management infrastructure at the Site, relocate and reuse spent ore and
`
`construct a lined tailings storage facility, modify stream channels to reduce sedimentation, restore
`
`wetland function and reestablish fish passage that has otherwise been blocked for decades.
`
`54.
`
`Even during mining, Midas plans to concurrently reconstruct stream channels,
`
`riparian areas, wetlands, and upland habitat. Midas intends to perform work to help rehabilitate
`
`the salmon fishery in the District and create a sustainable ecosystem.
`
`55.
`
`Given the remote location of the Site, Midas will develop a water supply system
`
`that furnishes potable water, along with water for fire protection, exploration, surface mining (dust
`
`control), ore processing, and tailings transport, while maintaining a sufficient supply of good
`
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`quality water for the surrounding ecosystem by recycling the majority of the water used in all
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`aspects of the Project.
`
`56.
`
`The NFS lands subject to the unpatented mining claims held by IGRC and SGC are
`
`managed, directed, and primarily controlled by USFS. As holders of unpatented claims, IGRC
`
`and SGC must comply with USFS regulations in order to undertake certain actions on unpatented
`
`claims. These regulations include a requirement to obtain USFS permission for operations that
`
`might significantly disturb the surface resources. See 36 C.F.R. §§ 228.4–228.5 (mining activities
`
`require permit with an approved plan of operations); 36 C.F.R. § 251.50 (non-mining operations
`
`also require approval and permit).
`
`57.
`
`Upon information and belief, USFS conducts water management activities on NFS
`
`lands subject to unpatented mining claims of its own initiative and has even done so on NFS lands
`
`subject to unpatented claims held by Midas in the District. Such actions demonstrate USFS’s
`
`active management and operational control over those properties.
`
`58.
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`Upon information and belief, USFS has undertaken actions directly, or funded or
`
`approved actions, related to certain of the alleged point sources including the Hangar Flats Tailings
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`Pile. Further, upon information and belief, USFS has approved the placement of tailings, waste
`
`rock, and spent ore on what were at the time of placement, and portions of which remain, NFS
`
`lands as well as private lands subject to patented claims.
`
`59.
`
`Upon information and belief, in 2003, USFS engaged in removal actions on the
`
`Hangar Flats Tailings Pile on land subject to patented mining claims subsequently held by SGC
`
`and on NFS lands subject to unpatented mining claims subsequently held by IGRC. These actions
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`included the dismantling of an abandoned smelter stack along with relocating contaminated soil
`
`associated with the smelter to other patented and unpatented properties.
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`60.
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`Upon information and belief, in 2005, USFS re-channelized the stretch of lower
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`Meadow Creek where water from the Hangar Flats Tailings Pile allegedly enters it. This work
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`occurred on NFS lands subject to unpatented mining claims now held by IGRC. USFS also
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`relocated some mine tailings from this location to other affected patented properties in the District
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`at that time.
`
`61.
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`Upon information and belief, in 2009–2010 USFS performed earthmoving work on
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`the lands underlying both patented and unpatented claims at the Hangar Flats Tailing Pile as part
`
`of a CERCLA removal action. Upon information and belief, his work included covering legacy
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`mining wastes with fill and filling in a ditch that had previously carried stormwater around
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`contaminated portions of Hanger Flats Tailings Pile. Upon information and belief, these actions
`
`likely created or contributed to the seep identified as YP-S-5 or allowed runoff water to saturate
`
`the fill and come in contact with legacy mining wastes. Upon information and belief, USFS did
`
`not seek permission from Midas before performing this work.
`
`Hangar Flats Tailings Pile
`
`62.
`
`The Hangar Flats Tailings Pile is a legacy tailings deposit area that sits adjacent to
`
`Meadow Creek within the District. The Hangar Flats Tailings Pile is on the location of a historic
`
`tailings disposal area on the Site. Later, a heap leach facility was constructed over top of the pre-
`
`existing tailings and remains there to this day. Portions of the feature contain elevated
`
`concentrations of arsenic, antimony, aluminum, iron, manganese, and mercury. The Hangar Flats
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`Tailings Pile is not capped, so rain and snow melt infiltrate it.
`
`63.
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`Two seeps are located near the base of the feature which contain elevated
`
`concentrations of arsenic, antimony, aluminum, iron, manganese, and mercury. A seep is a
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`discrete conveyance through which subsurface water reaches the surface.
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`64.
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`One of these seeps, identified as YP-S-5, is located on IGRC’s unpatented claim on
`
`NFS lands. On information and belief, other portions of the Hangar Flats Tailings Pile may also
`
`located on NFS lands.
`
`65.
`
`The United States and USFS have owned and operated portions of the land on
`
`which the Hangar Flats Tailings Pile, including YP-S-5, is located for at least the last five years.
`
`66. Midas will likely have evidentiary support after a reasonable opportunity for further
`
`investigation or discovery that pollutants have discharged from YP-S-5 into the EFSFSR on
`
`several occasions during the five years preceding the date of this Complaint. Midas will likely
`
`have evidentiary support after a reasonable opportunity for further investigation or discovery that
`
`these pollution discharges have been recurring and will continue until appropriate control measures
`
`are implemented.
`
`67. Midas will likely have evidentiary support after a reasonable opportunity for further
`
`investigation or discovery that the pollutants in this water have resulted from contact with legacy
`
`mining wastes.
`
`68. Midas will likely have evidentiary support after a reasonable opportunity for further
`
`investigation or discovery that these pollution discharges from the Hangar Flats Tailings Pile are
`
`not authorized by a valid NPDES permit(s) and are not otherwise exempt from CWA permitting
`
`requirements.
`
`DMEA Adit and Waste Rock Dump
`
`69.
`
`The DMEA Adit and Waste Rock Dump are located within the boundaries of
`
`IGRC’s unpatented mining claim(s) on NFS lands owned by the United States. Adits are small
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`exploratory tunnels bored into the mountainside, sometimes miles long, which are typically graded
`
`such that water could drains out through the adit opening.
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`70.
`
`The DMEA Adit and Waste Rock Dump are located on NFS lands and are located
`
`in an area outside of the Project footprint, meaning it is not proposed for any planned disturbance
`
`as a part of the development of the Stibnite Gold Project.
`
`71.
`
`The United States and USFS have owned and operated the DMEA Adit and Waste
`
`Rock Dump for at least the last five years.
`
`72. Water from the base of the DMEA Adit contains aluminum, arsenic, antimony,
`
`iron, mercury, and manganese. Water samples at a seep downgradient from the Waste Rock Dump
`
`contain aluminum, antimony, arsenic, iron, manganese, and mercury. This seep is located on NFS
`
`land. Water from this seep reaches the EFSFSR. Midas will likely have evidentiary support after
`
`a reasonable opportunity for further investigation or discovery that the pollutants in this water have
`
`resulted from contact with legacy mining wastes.
`
`73. Midas will likely have evidentiary support after a reasonable opportunity for further
`
`investigation or discovery that pollutants have discharged from the DMEA Adit and Waste Rock
`
`Dump into the EFSFSR and have done so on several occasions during the five years preceding the
`
`date of this Complaint. Midas will likely have evidentiary support after a reasonable opportunity
`
`for further investigation or discovery that these pollution discharges have been recurring and will
`
`continue until appropriate control measures are implemented.
`
`74. Midas will likely have evidentiary support after a reasonable opportunity for further
`
`investigation or discovery that these pollution discharges from the DMEA Adit and Waste Rock
`
`Dump are not authorized by a valid NPDES permit(s) and are not otherwise exempt from CWA
`
`permitting requirements.
`
`Bonanza Adit
`
`75.
`
`A small seep, originating as a small pond on a bench on a hillside that has been
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`excavated across its face by legacy exploration activities, exists near the Bonanza Adit. Midas
`
`will likely have evidentiary support after a reasonable opportunity for further investigation or
`
`discovery that this seep has a hydrological connection to the Bonanza Adit.
`
`76.
`
`The Bonanza Adit and nearby seep are located on IGRC’s unpatented mining
`
`claims in the District on NFS land owned by the United States. The Bonanza Adit and nearby seep
`
`are located in an area outside of the Project footprint meaning it is not proposed for any planned
`
`disturbance as a part of the development of the Stibnite Gold Project.
`
`77.
`
`The United States and USFS have owned and operated the Bonanza Adit and
`
`nearby seep for at least the last five years.
`
`78. Midas will likely have evidentiary support af