Western Shoshone Prevail at Ninth Circuit on Gold Mining at Mount Tenabo

For Immediate Release:
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

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

December 3, 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 http://www.gbrw.org/
and http://www.wsdp.org/
The Ninth Circuit Decision can be downloaded at: http://www.gbrw.org/images/stories/publications/tenabo/Ninth_Circuit_injunction_ruling_12-3-09.pdf

(12-03) 17:28 PST Reno, Nev. (AP) — San Francisco Chronicle

A federal appeals court on Thursday temporarily blocked construction of a massive gold mine project in northeast Nevada that critics say would harm the environment and ruin a mountain that several tribes consider sacred.
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In a rare legal setback for the mining industry in the nation’s largest gold-producing state, a three-judge panel of the 9th Circuit Court of Appeals granted an injunction to force Barrick Gold Corp. to postpone digging a 2,000-foot deep open pit at the Cortez Hills mine.

Nevada trails only China, South Africa and Australia in terms of worldwide gold production.

In reversing an earlier ruling, the judges in San Francisco said the U.S. Bureau of Land Management failed to adequately analyze the mine’s potential to pollute the air with mercury emissions and dry up scarce water resources in Nevada’s high desert. The project is located on Mount Tenabo, about 250 miles east of Reno.

The appellate judges concluded BLM’s review was inadequate under the National Environmental Policy Act, which requires a thorough examination of large-scale projects on federal land. They said the agency didn’t fully consider the air quality impacts resulting from transporting ore to an off-site processing facility 70 miles away.

The judges also said the review didn’t do enough to examine the likelihood that pumping water out of the pit would cause the groundwater level to drop and potentially dry up more than a dozen streams and springs.

The ruling Thursday sends the case back to federal court in Reno until the BLM revises its environmental impact statement.

In the ruling, the appellate court upheld a federal judge’s finding that opponents of the mine failed to prove they were likely to prevail on claims the mine would cause visual harm to Mount Tenabo and create a substantial burden on the tribes’ ability to exercise their religion.

Several Native American tribes say their people have been worshipping at Tenabo for centuries.

Lawyers for Barrick — the largest gold mining company in the world — argued that postponing digging the mine would cause undue financial hardship on the company and its workers during tough economic times.

But the appeals court said any economic hardship “may for the most part be temporary.”

“Congress’s determination in enacting NEPA was that the public interest requires careful consideration of environmental impacts before major federal projects may be go forward,” the judges wrote. “Suspending a project until that consideration has occurred thus comports with the public interest.”

John Hadder, executive director of the Reno-based environmental watchdog group the Great Basin Mine Watch, said the court rightly concluded BLM had failed in its legal responsibility to “protect the air, water and ecological values of the area as well as the religious freedom of Western Shoshone” tribe.

“None of us are opposed to mining if it is done responsibility. However, this project is as irresponsible as it gets,” he said. In addition to the Mine Watch, the plaintiffs included the Western Shoshone Defense Project and three tribes.

BLM spokeswoman JoLynn Worley said the agency was reviewing the ruling and had no comment Thursday.

Vincent Borg, Barrick’s executive vice president for corporate communications, said the company was pleased the appellate court upheld the lower court ruling regarding religious freedom.

“The district court will now have to consider the extent of any injunctive relief” in regard to the other parts of the ruling the judges overturned, he said.

Barrick began construction in January on the mine, which would be one of the largest open-pit, cyanide heap leach gold mines in the United States. Company officials said at the time they were prepared to spend $640,000 a day on the project for the next 15 months.

“It is unfortunate the company decided to push this forward without addressing all concerns, especially those of the Shoshone people,” said Larson Bill, a member of the Te-Moak Tribe.

Carrie Dann, of the Western Shoshone, said the project would drain the water from the mountain.

“The destruction of the water is like the destruction of the blood of the earth,” Dann said. “You are destroying life of the earth and the people and wildlife that depend on it.”

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Posted on December 4, 2009, in Ecological Struggles, Indigenous Struggles and tagged . Bookmark the permalink. Comments Off on Western Shoshone Prevail at Ninth Circuit on Gold Mining at Mount Tenabo.

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