State joins mining association in lawsuit over cyanide process

State joins mining association in lawsuit over cyanide process

By Bob Berwyn, Summit correspondent, Aspen Times

April 25, 2005

Summit County - State officials have joined the Colorado Mining Association (CMA) in challenging Summit County's popular mining regulations in court.

The CMA, a powerful lobbying and trade group, sued the county commissioners in March 2004, asserting that state law pre-empts the county's regulations. The rules were adopted by the county commissioners in January 2004 after a series of hearings showed broad local citizen support.

Partly at issue in the lawsuit is whether the county can ban cyanide heap leach mining, used to profitably extract gold from low-grade ore. The toxic chemicals used for heap leach mining can have devastating environmental impacts if the process goes awry.

The lawsuit in Summit County District Court could be a test case for the mining industry. Several other local governments in Colorado have adopted similar bans in recent years, and Montana voters recently enacted a statewide ban. Mining industry executives argue such bans are driven by a far-reaching, extreme anti-mining agenda and say they don't recognize the economic benefits of mining activities.

Backers of the Summit County ban have said such regulations are crucial for the long-term protection of natural resource assets, which form the basis for the county's tourism-based economy.

The heap leach mining method involves piling up mountains of ore and spraying them with a cyanide solution to extract the gold. Mining industry officials say the technology has been used safely and with no environmental damage at numerous sites. But environmental watchdog groups say the process inevitably leads to poisonous discharges.

In January 2005, shortly before the county's deadline for responding to the CMA's opening brief in the case, the Colorado Attorney General's Office entered the legal fray, allying itself with the CMA on behalf of the Colorado Mined Land Reclamation Board.

State officials said it's standard policy not to comment on any pending legislation, but CMA attorney Paul Seby explained the industry's position in a March 2004 interview with the Summit Daily News:

"The Summit Board of County Commissioners exceeded its statutory authority by adopting new performance standards for toxic and acidic chemicals," Seby said.

"The theme is pre-emption," Summit County Attorney Jeff Huntley said of the lawsuit. "They are claiming, in essence, that the state has occupied the field of mining regulation and permitting."

The county has responded by asking Judge David Lass to strike parts of the state's brief that exceed the original parameters of the lawsuit, Huntley said.

Local backers of the mining regulations have said local governments should have the ability to protect citizens and chart their own course, within reasonable limits.

"If we feel it's in our interest, we should be able to adopt regulations that are more restrictive than the state's," said Silverthorne resident Howard Hallman, who lobbied for the mining regulations. "I think it's unfortunate that the state has chosen to weigh in on one side."

"They're taking a view of the law that argues for pre-emption of state law over local control," said Jeff Parsons, a Boulder-based attorney with the nonprofit Western Action Mining Project. The project is fighting the case on behalf of two grassroots citizen groups, the Alliance for Responsible Mining and the Sierra Club Blue River group, both allied with Summit County in support of the mining regulations.

Parsons said the CMA in part is attacking a very specific provision in Summit County's mining regulations, claiming that the county can't regulate "state-designated" chemicals, authorized for use in mining under state regulations.

But he explained that state mining laws also include specific provisions for local control and that Summit County's regulations were designed with those provisions in mind.

In fact, Summit County planners worked with state experts to draft the mining rules, said Huntley, adding that county officials were "surprised" when the attorney general's office sided with the mining industry.

"That's typically something that's done at the appellate level," Huntley said of the state brief filed in support of the mining trade group.

"They're not technically a party to the case," he said, explaining that, with an amicus brief, third parties like the state have the opportunity to make their interests known to the court.

He said the issues raised by the state's brief never came up during numerous conversations with state officials as the mining regulations were being drafted.

"We felt the state was being kind of one-sided," Huntley said, explaining the county's move to have parts of the document stricken from the court record.

Lass could rule on the county's motion to strike part of the state brief any day, according to Parsons.