US: Western Shoshone bring major Barrick Gold project to a halt

Published by MAC on 2009-12-06
Source: Environmental News Service (ENS)

Nevada Tribes Win Halt to Barrick Gold Mine Expansion

By Lisa J. Wolf,  Environmental News Service (ENS)

3 December 2009

SAN FRANCISCO, California - The Ninth Circuit Court of Appeals today ordered that a preliminary injunction be granted to tribal plaintiffs that halts the expansion of the Cortez gold mine in Nevada owned by Barrick Gold Corporation, a Canadian company based in Toronto.

The ruling reverses the decision of the U.S. District Court in Nevada, which had denied the motion for preliminary injunction filed by the South Fork Band Council of Western Shoshone, the Te-Moak Tribe of Western Shoshone Indians, the Timbisha Shoshone Tribe, the Western Shoshone Defense Project, and Great Basin Resource Watch in November 2008.

The plaintiffs challenged the U.S. Bureau of Land Management's approval of the Cortez Hills mine expansion in November 2008.

Today the appellate court ruled that the tribes are likely to succeed on the merits on their claims that the BLM violated the National Environmental Policy Act in failing to properly analyze the environmental impacts from the mine on groundwater, air quality, and other natural resources.

"Suspending a project until that consideration has occurred thus comports with the public interest," the court ruled.

Roger Flynn, attorney for the tribes said, "The construction has started, so obviously they've already done a lot of damage, which is unfortunate because the court said the mine approval is illegal."

"Essentially the tribes were right on a big part of the case," said Flynn.

But the tribes did not persuade the court that they were in the right on all of their claims.

Cortez Hills is an expansion of Barrick's Cortez Mine, which has produced gold continuously since the late 1960s at its location 60 miles southwest of Elko, Nevada in Lander County.

The expansion threatens Mount Tenabo, an important sacred mountain for the Western Shoshone people.

While the court granted the preliminary injunction, which halts mine construction until the case has been decided, the court did not side with the tribes on their claims under the Federal Land Policy and Management Act, FLPMA, that the mine would prevent access to their sacred sites on Mount Tenabo and thus would establish a substantial burden on the exercise of their religion.

"Tribes have not satisfied their burden of showing a likelihood of success on the merits of their FLPMA claims," the appellate court ruled.

However, the court sided with the tribes on their air and water impact claims. While recognizing "mining has been a dominant industry in Lander County since the 1950s," the court noted the Cortez Hills expansion involves "ten years of active mining and up to three years of ore processing, followed by site closure and reclamation."

Barrick Gold proposes to dig a new 850-acre mine pit; add facilities for cyanide heap-leach processing; add areas for disposal of approximately 1.5 billion tons of waste rock; upgrade its mine dewatering systems to remove surface and ground water that would otherwise fill the mines; and build and operate a 12-mile long ore-hauling conveyor system.

The project as originally proposed would have disturbed 6,792 acres within the 57,058-acre project boundary. Of the disturbed acreage, 6,571 acres were public land and 221 acres were private land belonging to the Cortez Hills mine.

The tribes claimed that the BLM violated the National Environmental Policy Act, NEPA, by failing to analyze the air quality impacts of the transportation of ore to an off-site processing facility.

In its environmental impact statement for the mine expansion, BLM estimates that five million tons of ore would be available for extraction. Plans are to transport the ore 70 miles to the Goldstrike facility for processing, in two shipments per day, every day, for 10 years.

The transport of the ore, the tribes allege, will negatively impact air quality, and the processing would result in the release of mercury, a hazardous air pollutant.

The BLM now maintains that these environmental impacts need not be discussed in the environmental impact statement, because no increase in the rate of toxic ore shipments is proposed, and the off-site facility is permitted under the Clean Air Act.

But the court ruled that, "The air quality impacts associated with transport and off-site processing of the five million tons of refractory ore are prime examples of indirect effects that NEPA requires be considered. The Council on Environmental Quality regulations define indirect effects as those "caused by the action, later in time or further removed in distance, [but] still reasonably foreseeable" and an "agency must consider them."

The court decided that "BLM is incorrect in asserting that these effects need not be considered simply because no change in the rate of shipping and processing is forecast. That may be so, but the mine expansion will create ten additional years of such transportation; that is, ten years of environmental impacts that would not be present in the no-action scenario."

"Moreover," the court adds, "even on a year-to-year basis, there has been no consideration of the environmental impact of the transportation and processing of the refractory ore."

"BLM's argument to the contrary depends on the assumption that, because off-site processing is ongoing, these impacts must have been analyzed in a NEPA document already. But," ruled the court, "that assumption is baseless: there is no indication that these impacts were properly considered at any time, even on a year-to-year basis."

The tribes also contend the BLM failed to conduct an appropriate mitigation analysis with respect to the environmental consequences of mine dewatering.

The extensive removal of groundwater implicit in this project is expected to cause some number of local springs and streams to dry up, the court observed. "At least 15 springs are not expected to recover within 100 years. As the EIS concedes, these are significant environmental harms."

"Though NEPA, of course, does not require that these harms actually be mitigated, it does require that an EIS discuss mitigation measures, with 'sufficient detail to ensure that environmental consequences have been fairly evaluated,'" the court noted.

The court decided that the BLM did not inadequately study the serious effects of processing refractory ore and exhausting scarce water resources. "The likelihood of irreparable environmental injury without adequate study of the adverse effects and possible mitigation is high," the court decided, saying, "Indeed the District Court did not question the irreparable environmental harm threatened by this massive project, and that will be visited most directly on the plaintiffs."

The case is already back in federal district court in Nevada. Flynn filed the first brief of the main part of the case with the judge in Reno on Tuesday. Barrick and the BLM's response brief is due in January and Flynn's reply is due in February.

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Western Shoshone Prevail at Ninth Circuit Court on Mt. Tenabo - Court Issues Ruling Enjoining Cortez Hills Open Pit Gold Mine

Court Agrees with Western Shoshone and Allies that the Interior Department's Approval of the Mine Likely Violated Federal Law

Western Shoshone Press Release

3 December 2009

San Francisco,CA and Crescent Valley, NV - In a major ruling, the federal Ninth Circuit Court of Appeals today issued its ruling enjoining the construction and operation of the Cortez Hills gold mine, proposed by Barrick Gold Corporation. The Ninth Circuit reversed the decision of the U.S. District Court for the District of Nevada, which had denied the motion for preliminary injunction filed by the plaintiffs. The plaintiffs in the case are: the South Fork Band Council of Western Shoshone, the Te-Moak Tribe of Western Shoshone Indians, the Timbisha Shoshone Tribe, the Western Shoshone Defense Project, and Great Basin Resource Watch (the "Plaintiffs"). The Plaintiffs challenged the U.S. Interior Department's Bureau of Land Management ("BLM") decision to approve the Cortez Hills Mine in November of 2008.

In overturning the District Court's decision, the Ninth Circuit ruled that the Plaintiffs were likely to succeed on the merits of their legal arguments that BLM violated federal environmental and public land law in approving the Mine. The Ninth Circuit also found that enjoining the Mine was in the public interest due to the "irreparable environmental harm threatened by this massive project." Among other issues, the Ninth Circuit ruled that the Plaintiffs were likely to succeed on their claims that BLM violated the National Environmental Policy Act in failing to properly analyze the environmental impacts from the Mine on groundwater, air quality, and other resources. "Suspending a project until that consideration has occurred thus comports with the public interest."

The Cortez Hills Mine would be one of the largest open pit cyanide heap leach gold mines in the United States. It would be located on the flank of Mount Tenabo - an area well-known for its spiritual and cultural importance to the Western Shoshone. The area is home to local Shoshone creation stories, spirit life, medicinal, food and ceremonial plants and items and continues to be used to this day by Shoshone for spiritual and cultural practices. Over the years, tens of thousands of individuals and organizations from across the United States and around the world have joined with the Shoshone and voiced their opposition to this mine. The proposed mine area has been found by the BLM, in repeated ethnographic studies, as being of extreme spiritual and cultural importance to the Western Shoshone. One report says: "Mt. Tenabo is ... considered a traditional locus of power and source of life, and figures in creation stories and world renewal. As the tallest mountain in the area - the most likely to capture snow and generate water to grow piñon and nourish life - it is literally a life-giver. Water is to earth what blood is to the body, and these subterranean waterways are likened to the earth's arteries and veins."

The Mine is proposed by Barrick Gold Corporation, the world's largest gold mining company, headquartered in Toronto, Canada. The mine would blast and excavate a new massive open pit on Mount Tenabo over 800 acres in size, with a depth of over 2,000 feet. It would include several new waste disposal and processing facilities (including a cyanide heap-leaching facility), consisting of approximately 1,577 million tons of waste rock, 53 million tons of tailings material, and 112 million tons of spent heap leach material. The Mine would include an extensive groundwater pumping system to dewater Mount Tenabo (in order to keep the open pit and mine workings dry during mining) and associated water pipelines that will transport the pumped water away from Mount Tenabo. In total, the mine would permanently destroy approximately 6,800 acres land on and around Mount Tenabo, over 90% of which is classified as federal "public" land. Despite the pending case before the Ninth Circuit appealing the District Court's denial of the Plaintiff's motion for preliminary injunction in January, 2009, Barrick decided to begin construction of the Mine. The Ninth Circuit's ruling today orders the District Court to issue an injunction against the Mine.

"We are pleased with the Ninth Circuit's ruling," said Larson Bill, Tribal Council Member of the South Fork Band Council and Te-Moak Tribe. "This is a result of Western Shoshone people remaining committed to protecting our land and environment. It is unfortunate that the company decided to push this forward without addressing all concerns, especially those of the Shoshone people. Barrick operates world wide and is well-versed on these issues - they knew that an injunction was a possibility - especially where there has been continuous opposition and litigation." continued Larson Bill.

Carrie Dann, a world renowned Western Shoshone grandmother, and recipient of the Right Livelihood Award (known as the "alternative Nobel Peace Prize") has been among those to lead the fight to protect Mount Tenabo from mining for over 15 years. "Mount Tenabo should be left alone - no further disturbance. This mine will drain the water from Mount Tenabo. They will be sucking the water out of the mountain forever. The destruction of the water is like the destruction of the blood of the earth; you are destroying life of the earth and the people and wildlife that depend on it. Dewatering is taking the life of future generations. Water is sacred, all life depends on it," says Carrie Dann.

"None of us are opposed to mining, if it is done responsibly, however this project is as irresponsible as it gets. The BLM has a legal responsibility to protect the air, water, and ecological values of the area as well as the religious freedom of Western Shoshone, and to fully analyze the impacts of a proposed project. The Ninth Circuit correctly found that BLM failed in its legal responsibilities," said John Hadder, Executive Director of Great Basin Resource Watch.

The Plaintiffs are being represented in court by Roger Flynn of the non-profit legal firm, the Western Mining Action Project, based on Colorado, which specializes in mining, public land, and environmental law.

For more information on the Cortez Hills Project, Mount Tenabo, and the legal challenge go to www.gbrw.org and www.wsdp.org. The Ninth Circuit Decision can be downloaded at: http://www.gbrw.org/images/stories/publications/tenabo/Ninth_Circuit_injunct ion_ruling_12-3-09.pdf

Contacts:

Larson Bill, South Fork Western Shoshone, 775-397-6726, 775-744-2537
John Hadder, Great Basin Resource Watch, 775-722-4056
Julie Cavanaugh-Bill, Western Shoshone Defense Project, 775-397-1371
Roger Flynn, Western Mining Action Project, 303-823-5738

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Barrick shares plunge on Nevada mine ruling

By Cameron French, Reuters

4th December 2009

TORONTO - Shares of Barrick Gold (ABX.TO) fell 8.7 percent on Friday on fears that a U.S. court decision could derail the ramp-up of its $500 million Cortez Hills mine in Nevada, one of the company's key growth projects.

A sharp drop in gold prices also weighed on the company's stock.

An appeals court in San Francisco ruled on Thursday that the project -- which has faced opposition from local native Indian leaders and environmental groups -- requires additional environmental analysis by the U.S. Bureau of Land Management.

It will now be up to a district court to decide whether construction and preliminary mining of the deposit will be suspended.

Investors appeared rattled by the uncertainty, selling the company's shares down by C$4.32 to C$45.10 on the Toronto Stock Exchange. "It's a surprise setback," said John Ing, president of Toronto investment dealer Maison Placements.

He said the sharp move suggested investors expect the district court will halt the operation. "Everybody has assumed the cessation of mining, which is not necessarily so."

The court decision partially reverses a district court ruling earlier this year that said Barrick could proceed with development of the project, despite the opposition.

The Western Shoshone tribe claim the development of Cortez Hills would destroy a sacred landmark on Mount Tenabo, which is located about 250 miles east of Reno, Nevada.

Barrick said in a statement that it is considering its legal options.

PRODUCTION SEEN NEXT YEAR

Cortez Hills, which is an expansion of Barrick's Cortez mine, had been expected to start producing gold early next year, although some mining operations have already begun.

The combined Cortez operations are expected to produce 1 million ounces a year, or roughly 13 percent of Barrick's expected 2010 output, at cash costs of $350 to $400 an ounce.

The project is one of three massive mine projects -- Pueblo Viejo in the Dominican Republic and Pascua Lama on the border of Chile and Argentina are the others -- that Barrick expects to boost its production and lower its average costs as they open over the next few years.

In a research note, J.P. Morgan analyst John Bridges said he had projected Cortez Hills to supply about one-sixth of Barrick's pretax income next year.

Barrick's shares were also hurt by weak gold prices. The metal fell 4 percent to below $1,170 an ounce after hitting a record of $1,226.10 on Thursday.

The sell-off followed surprisingly strong U.S. jobs data, which boosted the U.S. dollar and dented the gold's appeal as a currency hedge.