Western Shoshone return to court, citing violations by Barrick Gold

Published by MAC on 2010-02-15
Source: Elko Free Press

Tribes say company must now suspend Nevada mine

Western Shoshone Tribes and Allies Seek Full Enforcement of Ninth Circuit Injunctive Order to Protect Sacred Mt. Tenabo from Massive Gold Mine

Western Shoshone Defense Project Press Release

5 February 2010

Today, Plaintiffs in a continuing battle and 14-month long lawsuit to protect Mt. Tenabo from expanded, open pit gold mining, filed a Motion in the U.S. District Court in Reno for the enforcement of an Injunctive Order recently issued by the Ninth Circuit Court of Appeals.

The lawsuit involves several Western Shoshone Tribes and a conservation organization versus the Bureau of Land Management and Barrick Gold Company of Toronto, Canada, the operator of the Cortez Hills Mine on Mt. Tenabo.

The Mine would cover well over 6,000 acres on Mt. Tenabo and would be one of the country's largest open pit mines. The BLM approved Barrick's proposal in November of 2008. Immediately thereafter, a lawsuit challenging the Project was filed by the South Fork Band Council of Western Shoshone, the Te-Moak Tribe of Western Shoshone, the Timbisha Tribe of Western Shoshone, the Western Shoshone Defense Project, and Great Basin Resource Watch (collectively, the "Tribes").

The Tribes also immediately filed a request that the Project not be allowed to continue until BLM complied with federal law. The District Court in Reno denied the Tribes' injunction request. However, the Tribes immediately appealed that decision to the federal Ninth Circuit Court of Appeals. After considering the evidence and conducting a hearing in San Francisco, the Ninth Circuit, on December 3, 2009, in a unanimous 3-judge ruling, published its decision agreeing with the Tribes, and ordered the District Court to issue the injunction.

The Ninth Circuit agreed with the Tribes that BLM had likely violated a leading federal environmental law, the National Environmental Policy Act (NEPA), finding that BLM failed to adequately consider the significant impacts from the Cortez Hills Project on Mt. Tenabo and on air and water quality, among other defects. The Ninth Circuit stated:

"We reverse the denial of injunctive relief on the NEPA claims...and remand for the entry of an injunction pending preparation of an EIS that adequately considers the environmental impact of the extraction of millions of tons of refractory ore, mitigation of the adverse impact on local springs and streams, and the extent of fine particulate emissions."

The Court's decision further underscored the public interest in issuing the injunction and suspending operations until BLM complied with federal law:

"Congress's determination in enacting NEPA was that the public interest requires careful consideration of environmental impacts before major federal projects may go forward. Suspending a project until that consideration has occurred thus comports with the public interest."

Under federal court rules, the Ninth Circuit's decision did not take effect until January 25, 2010. On that date, Barrick filed a motion with the District Court in Reno seeking to limit the Ninth Circuit's ruling, asking the court to instead enjoin only a very limited subset of activities at the mine site.

Discussing the Tribe's Motion filed today, John Hadder, Director, Great Basin Resource Watch stated that, "Barrick's hollow offer in their motion was too vague and incomplete to assure that the irreparable harm to the Tribes and the environment will not occur while the deficiencies in the EIS are addressed. The law is very clear that the purpose of an EIS is to develop a full picture of all the impacts enabling a balanced evaluation of the mine and whether impact mitigation plans are adequate. The Ninth Circuit clearly found that BLM violated these fundamental legal requirements."

In asking the lower court to essentially ignore the Ninth Circuit's ruling by issuing only an extremely limited injunction, Barrick stresses the economic benefits from the Project and potential temporary layoffs that might occur if the Project is enjoined.

However, Barrick chose to proceed with the Project while the injunction request was being litigated and nonetheless hired workers. Thus, the potential economic losses stated by Barrick are losses of Barrick's own making. The Cortez Hills Project is just one of many Barrick mines around the world. For example, in 2008, Barrick reported a net income of $ 1.66 billion (without The Cortez Hills mine). "Had Barrick decided to be cautious in light of the litigation, there would not be this economic situation, but a manageable trajectory of employment and economy," said Hadder.

"Barrick knew very well that there was a risk in proceeding with the development of the Cortez Hills mine in the shadow of litigation. Unfortunately, Barrick's gamble is played out on the backs of the workers and contractors. We hope that Barrick will behave as a better employer at this point and seek to relocate those employees slated to be laid off," said Larson Bill, Tribal Council Member for the South Fork Band and the Te-Moak Tribe. He is also a Community Planner for the Western Shoshone Defense Project, one of the other plaintiffs.

Construction of the Mine is nearly complete, and has already resulted in large-scale damage to the lands and some removal of water from Mt. Tenabo. Although Barrick proposes to reduce some groundwater pumping and some other minor changes to the Project, it refused to halt full-scale blasting and excavation of the 2,000 foot deep mine pit, as well as beginning the cyanide-leach processing of the gold ore.

Julie Cavanaugh-Bill, Legal Counsel for the Western Shoshone Defense Project noted that: "It is surprising that given the contentions surrounding mining at Mt. Tenabo that more care was not taken in developing the EIS. This is especially poignant in terms of the enormous impacts of the Mine, which desecrates Mt. Tenabo, a place held sacred by many Western Shoshone for countless generations."

The Tribes' Motion was filed by Roger Flynn, attorney with the Western Mining Action Project, a non-profit law firm which represents the Tribes in the case.

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Contacts:
Larson Bill, Western Shoshone Defense Project, 775-397-6726
John Hadder, Great Basin Resource Watch, 775-348-1986 (775-722-4056)
Roger Flynn, Western Mining Action Project, 303-823-5738

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Groups file motion for mine shutdown

ADELLA HARDING - Free Press Staff Writer, Elko Free Press

6 February 2010

ELKO - The plaintiffs in the lawsuit over the Cortez Hills Project filed a motion Friday asking the U.S. District Court in Reno to issue a full injunction against the operation.

"It's basically what we have been calling for all along," said John Hadder, executive director of the Great Basin Resource Watch.

The plaintiffs, including Western Shoshone tribes and the Western Shoshone Defense Project, believe the 9th Circuit Court of Appeals in San Francisco's opinion calls for the Reno court to temporarily halt the project in Lander County, and the motion is in answer to a request Barrick Cortez Inc. filed a couple of weeks ago asking the U.S. District Court to consider a partial injunction instead of a full one.

The motion filed Friday states that Barrick's motion for a partial injunction "ignores the fact that the 9th Circuit specifically ruled against Barrick that a full injunction suspending the project was warranted in this case."

Barrick offered to stop mine dewatering above the earlier permitted amount for the Cortez Hills underground mine until the U.S. Bureau of Land Management can go back and study dewatering impacts.

Barrick also offered to stop trucking ore to the Goldstrike Mine north of Carlin for processing until the BLM studies potential mercury emissions from the ore loads.

"We don't think what Barrick is proposing was sufficient," Hadder said Friday.

Barrick Cortez pointed out in its motion that to halt the surface operations at Cortez Hills would lead to layoffs and economic hardship for neighboring communities.

"We certainly weren't surprised by the plaintiff's action today," Barrick Gold of North America President Greg Lang said Friday evening. "We're doing everything we can to keep the project going and preserve employment and the benefits the project provides to the surrounding community, and we will await further direction from the courts."

Barrick Cortez's motion includes a forecast of 630 employee and contractor layoffs within a year. Cortez Mines, which includes Cortez Hills and the Pipeline areas, has roughly 1,000 employees.

The plaintiffs argue that Barrick should have known better than to hire workers and complete development of Cortez Hills with an appeal hanging over its head.

"Barrick knew it would go into litigation and went ahead anyway," Hadder said.

In a statement plaintiffs issued, Larson Bill, who serves on the Te-Moak Tribe of Western Shoshone and South Fork Band councils, said: "Barrick's gamble is played out on the backs of the workers and contractors. We hope Barrick will behave as a better employer at this point and seek to relocate those employees slated to be laid off."

The 9th Circuit opinion was on the appeal filed after the U.S. District Court in Reno denied its initial motion for an immediate injunction against Cortez Hills.

The lawsuit itself is directed at the BLM and maintains the agency failed to fully consider all impacts of the Cortez Hills Project that reaches into the flank of Mount Tenabo.

Battle Mountain BLM District Manager Jerry Smith wasn't available Friday afternoon when word came out that the plaintiffs filed the motion, but he said earlier he stands by his project approval.

Barrick Cortez, which is a subsidiary of Barrick Gold Corp. and under Barrick Gold of North America's wing, filed as an intervenor in the case.

Western Shoshone Defense Project legal counsel Julie Cavanaugh-Bill said it is surprising that "given the contentions surrounding mining at Mount Tenabo that more care was not taken in developing the EIS."

The 9th Circuit Court issued its decision on Dec. 3 that an injunction should be ordered until the BLM studies the dewatering and mercury emissions more thoroughly. Such a study likely would be an amendment to the environmental impact statement already completed on Cortez Hills.

The court didn't issue the order to the Reno court until Jan. 25, however.