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Feds decide not to appeal ruling halting Glacier's construction project on Maury

In a significant move, the federal government has decided not to appeal a U.S. District Court decision last August that temporarily halted Glacier Northwest's plans to dramatically increase its mining operations on Maury Island.

The U.S. Justice Department filed a notice in federal court this week that it was revoking an earlier notice it submitted that it intended to appeal. Emily Langley, a spokeswoman in the Justice Department's Seattle office, declined to explain the rationale behind the government's move, noting that the reason for such decisions "is privileged."

The decision, Langley added, went all the way to the government's top lawyer, Solicitor General Elena Kagan, appointed to the position by Pres. Barack Obama.

The move means that Glacier — an "intervenor" in the case — can still appeal U.S. District Judge Ricardo Martinez's ruling but will do so on its own. Those who have been battling Glacier's efforts at expansion said they believe that will make it harder for the mining giant to prevail in court.

"I think Glacier has a very difficult battle in front of them. It would be incredibly difficult even with the federal government at their side. Without the government, I'm not sure what their argument would be," said Amy Carey, head of Preserve Our Islands (POI), a Vashon-based group.

Glacier officials wouldn't comment on the latest development. The company filed a notice of its intention to appeal immediately following Martinez's decision.

"We're still evaluating the situation," Pete Stoltz, the company's main spokesman, said Thursday.

Martinez, in a far-reaching decision that put an 11th-hour halt to Glacier's construction project, ruled in August that federal agencies failed to uphold the nation's strictest environmental law when it awarded the corporation a permit to move forward. Specifically, Martinez said, the U.S. Corps of Engineers and the agencies it consulted with — the National Marine Fisheries Service and the U.S. Fish & Wildlife Service — failed to fully consider how noise and shading from the construction and operation of Glacier's 305-foot barge-loading pier could hurt Puget Sound's killer whales and chinook salmon.

Both are protected under the Endangered Species Act.

The ruling, should it stand, means the federal government will have to take a much more stringent review of the construction project, including what's called a full, formal biological evaluation, before a permit can be issued and construction resumed. Some have said that review could take a couple of years; Glacier said it believes it can work with the agencies to complete the process within a year.

"We've already started working on it," Stoltz said. "We're continuing to go through the process, and we're going to do everything to comply with all the requirements."

Glacier has been on a path to expand sand and gravel mining at its 235-acre site on the eastern flank of Maury for more than a decade. A year ago, it finally had enough permits in place to begin building its barge-loading pier, which would have enabled it to begin offloading sand and gravel and shipping it to customers on the other side of Puget Sound.

Such materials are needed, the company argues, to support highway construction and other needed projects in the Puget Sound area; barging, it adds, is more environmentally friendly and less costly than trucking it off the Island.

All told, the company — owned by a Japanese corporation — hopes to mine around 2 million tons of gravel a year, up from about 10,000 tons it currently mines.

But Martinez, in his ruling, sounded an alarm over the project's potential effect on whales and salmon, noting that the federal government had failed to use science in making its determination that the project would not have an adverse ecological impact. His ruling also underscored the need to consider the potential cumulative impact of ongoing construction on and around Puget Sound, which is considered imperiled. "Which raindrop caused the flood?" Martinez asked in his ruling.

The Justice Department had 60 days after Martinez's ruling to file a notice of whether it intended to appeal. It did so on the 60th day, said David Mann, POI's lawyer.

Mann said that notice of intent, however, was likely simply a placeholder. The fact that it has revoked that notice, he added, "is a pleasant surprise."

Carey agreed. "It's validating to see the (federal) agencies doing the right thing and recognizing there was an error," she said.

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