Shoshone Battle to Stop Gold Mine on Mount Tenabo ContinuesPublished by MAC on 2010-07-09
Source: Environmental News Service (2010-06-22)
Although to some extent the recent Court of Appeals decision is a defeat for the Western Shoshone (as it reversed an earlier stay on expansion by Barrick Gold of its major Cortez gold mine in Nevada - see http://www.minesandcommunities.org/article.php?a=9880), it is still part of ongoing legal actions.
Also, although expansion can continue, US regulators must respond to a new appeals court order to better assess potential impacts. They further agreed with the tribe that the Bureau of Land Management (BLM) failed to adequately consider the projects' cumulative impacts on the Shoshone, although the claim that the BLM fulfilled its duty to consult the tribe is somewhat surprising.
Appeals Court Reverses Nevada Mine Case, Says BLM Must Weigh Cumulative Impacts
William H. Carlile
The Bureau of National Affairs
22 June 2010
PHOENIX - A federal district court must reconsider whether the expansion of a mine exploration project in Nevada requires a new environmental impact statement under the National Environmental Policy Act, the U.S. Court of Appeals for the Ninth Circuit ruled June 18 (Te-Moak Tribe of Western Nevada v. U.S. Department of the Interior, 9th Cir., No. 07-16336, 6/18/10).
The Te-Moak Tribe of Western Shoshone of Nevada had appealed a lower court's ruling in 2009 in favor of the Interior Department's Bureau of Land Management and intervenor Cortez Gold Mines (South Fork Band Council of Western Shoshone of Nevada v. Interior, D. Nev., No. 3:08-cv-616, 1/26/09; 16 DEN A-4, 1/28/09).
The tribe contended that BLM's approval of Cortez's amendment to an existing mineral exploration project in Nevada violated NEPA, the National Historic Preservation Act, and the Federal Land Policy and Management Act.
A three-judge appeals court panel affirmed rulings of the U.S. District Court for the District of Nevada with respect to the historic preservation and land policy act claims, but it reversed and remanded for further proceedings on the tribe's NEPA claims.
Roger Flynn, director and managing attorney for the Lyons, Colo.-based Western Mining Action Project, which represented the tribe, told BNA June 22 the decision sends a message to BLM and the district court, and it follows a similar Ninth Circuit ruling four years ago that BLM lost over cumulative environmental-impact analysis (Great Basin Mine Watch v. Hankins, 9th Cir., No. 04-16125, 8/1/06).
"Again, the Ninth Circuit is saying, 'District Court in Nevada and BLM, you got it wrong. You can't piecemeal the environmental reviews. You have to review the environmental impacts from a cumulative basis, particularly when there is other mining and exploration going on in the nearby area,' " Flynn told BNA.
Cortez's parent company, Barrick Gold of North America, could not be reached for comment.
Company Sought Expansion.
According to court documents, in July 2003, Cortez proposed an amendment to the Horse Canyon/Cortez Unified Exploration Project plan of operations that would permit Cortez to disturb 250 acres throughout the project area. The acreage was five times the amount approved by BLM for the original project.
Under the amendment, Cortez's exploration would proceed according to the same phased operations as outlined in the original plan of operations. The plan called for phased drill sites, beginning with 150 and increasing by 225 drill sites in Phases II and III. Cortez could not disturb more than 50 acres at any given time. Cortez estimated that the Horse Canyon project as amended would last five years.
The area is in close proximity to other Cortez operations, including an open-pit mine. Barrick's Cortez mine has produced gold continuously since the late 1960s. In addition, Cortez plans to develop two mineral deposits as the Pediment/Cortez Hills Mine Project.
According to the court, after Cortez proposed the amendment, BLM prepared an environmental assessment pursuant to NEPA, assessing the environmental and cultural resources of the project area and the potential impacts on the environment.
The assessment "tiered" to, and thus incorporated, previous environmental impact statements and environmental assessments, including those for the original Horse Canyon project and for the South Pipeline Project, another mining project located near the project area, according to the court.
BLM Must Account for Cumulative Impact.
According to Flynn, the court ruled that the environmental assessment must take into account the cumulative impacts of all activity in the area, not just the Horse Canyon plan.
In its opinion, the appeals court concluded that BLM's analysis of the cumulative impacts of the proposed amendment and the Pediment/Cortez Hills project was insufficient and, therefore, violated NEPA.
The three-member appeals panel held that the district court erred in granting summary judgment for the defendants on this issue, and remanded to the district court with instructions to grant summary judgment for plaintiffs and remand to BLM for further proceedings.
"NEPA requires the BLM to take a hard look at the cumulative impacts of the amendment and other projects within the cumulative effects area; this it failed to do," the three-judge panel said.
The three-judge panel wrote, "In sum, although we conclude that in the EA, the BLM took a hard look at the direct impacts of the Amendment and that its discussion of reasonable alternatives was proper, we hold that the BLM violated NEPA's mandate by failing to conduct a proper analysis of the cumulative impacts of the Amendment and the Pediment/Cortez Hills project on Western Shoshone cultural resources in the area."
Flynn told BNA that the opinion is particularly important now. "With gold prices over $1,200 an ounce, at record prices, we see old mines being reopened, we see a slew of new exploration and mining projects essentially unprecedented in Nevada."
The Ninth Circuit's opinion in Te-Moak Tribe of Western Nevada v. U.S. Department of the Interior is available at http://www.ca9.uscourts.gov/datastore/opinions/2010/06/18/07-16336.pdf
Tribe Loses Court Battle to Stop Gold Mine on Mount Tenabo
Environmental News Service (ENS)
22 June 2010
SAN FRANCISCO, California - An Indian tribe, an indigenous rights support group and a mining watchdog group have failed in their joint court bid to block the expansion of a gold mine in northeastern Nevada.
A three-judge panel in the U.S. Court of Appeals for the Ninth Circuit on Friday upheld a district court's grant of summary judgment against the plaintiff Te-Moak Tribe of Western Shoshone of Nevada and its co-plaintiffs, the Western Shoshone Defense Project, and Great Basin Mine Watch.
The court ruled in favor of the Department of the Interior, the Bureau of Land Management, and a mining company.
The dispute centers on the intention of Barrick Gold, a Canadian company based in Toronto, to expand its Cortez Gold Mine located in Nevada's Lander and Eureka counties.
In November 2008, the plaintiffs challenged the U.S. Bureau of Land Management's approval of the Cortez Hills mine expansion, claiming that the expansion violates the National Environmental Policy Act, the National Historic Preservation Act, and the Federal Land Policy and Management Act.
The expansion threatens Mount Tenabo, an important sacred mountain for the Western Shoshone people, the appeals court recognized in its ruling.
"Mount Tenabo, located within the project area, is considered a traditional locus of power and source of life for the Western Shoshone, and figures in creation stories and world renewal," the ruling states. "The top of Mount Tenabo is used by the Western Shoshone for prayer and meditation and although mining activities have impeded this practice, the association of the top of the mountain to Western Shoshone beliefs, customs, and practices remains."
"The project area also contains many pinyon pine trees, a source of pine nuts that were once a key component of the Western Shoshone diet and remain a focal point of Western Shoshone culture and ceremony. Although mining has impeded the collection of pine nuts, remnant stands of pinyon pine continue to be used as traditional family gathering areas by contemporary Western Shoshone. Finally, because of the Tribe's burial traditions, the ancestors of the Western Shoshone are likely buried throughout the project area," the ruling acknowledges.
But the court ruled that because the Bureau of Land Management attempted to contact the tribe by phone for a consultation on sacred uses of the land, and the tribe did not respond to the phone calls on several occasions, the BLM satisfied its obligation to consult.
The appeals court upheld the district court's dismissal of the plaintiffs' National Historic Preservation Act and Federal Land Policy and Management Act claims, but reversed and remanded with instructions to grant the plaintiffs summary judgment with respect to one of their NEPA claims.
Under the original plan of operations for the Cortez mine, the Bureau of Land Management permitted the company to disturb a total of 50 acres of land within the entire project area for all three phases of the project. In July 2003, the company proposed to amend the plan to permit Cortez to disturb 250 acres.
The Bureau of Land Management approved the amendment to the plan in violation of NEPA, as its environmental analysis of the cumulative impacts of the plan was insufficient, the Ninth Circuit ruled.
The plaintiffs deserve summary judgment on that claim and the BLM will have to conduct further proceedings, the Ninth Circuit panel ruled.
The BLM did not fail to prevent unnecessary or undue degradation of federal lands, as the plaintiffs had alleged, and so, the judges ruled, the Federal Land Policy and Management Act claim does not succeed.