Judge sets temporary stipulation for gold mining on Mount Tenabo

By Lisa J. Wolf
Censored News

December 11, 2008
Click map to enlarge

Roger Flynn, attorney for the Western Shoshone and allies seeking to stop Barrick’s Cortez Hills Project, reported at 5:50 p.m. Thursday, December 11th that minutes earlier a Joint Stipulation “between the parties” was “filed with the court,” before Judge Larry R. Hicks and Magistrate Judge Robert A. McCaid of the U.S. District Court for Nevada, regarding “what work can and cannot be done in this interim period before the court issues its decision on plaintiffs' motion for a preliminary injunction.” Flynn advised, “The hearing will be sometime during the week of January 20th.”

Flynn noted, “The Stipulation allows some site preparation work to begin, but none of the major mine facilities such as the Cortez Hills Pit, the waste dumps, and cyanide heap leaching facility. The Stipulation recognizes the ability of Western Shoshone plaintiffs to continue to access and use the lands for religious and cultural purposes, as long as people do not interfere with Cortez's operations allowed in the Stipulation.”

While the suit initially named the U.S. Department of the Interior and the BLM as plaintiffs, Barrick Cortez intervened and joined the suit as a defendant, represented by Michael R. McCarthy, Jim B. Butler, Francis M. Wikstrom, and Michael L. Larsen of Parsons Behle & Latimer.

According to the Stipulation, “Cortez may relocate the power transmission lines” on the “upper pediment area (to remove the existing line from its current location) and lower down the hill (to install the new power line).” In addition, Cortez may “relocate the existing county road to the new location” so long as “public motorized travel on County Road 222 between Crescent Valley and Grass Valley shall remain open, subject to reasonable construction and maintenance delays, not to exceed 20 minutes” and can “extend the haul road to connect the crusher pad with the existing haul road.”

Cortez may also “perform site preparation and construction activities at the site of the crusher facility,” the “truck shop” and “conveyor” and can “continue archaeological clearance work throughout the Project area.” Cortez is also being permitted to “perform underground mining operations generally, including as previously permitted under Cortez’s separate permit and exploration plan of operations as well as the BLM’s Final Environmental Impact Statement (“FEIS”) and Record of Decision (“ROD”) at issue in this case.”

However, Cortez must “remove the water lines, tanks, and trucks presently located for dust
suppression purposes north of the boundary of the heap leach facility” during “the term of this Stipulation.”

Cortez can continue to “access any and all areas within the Cortez Hills Project area and perform
any and all work previously permitted and authorized separate and apart from the FEIS and ROD at issue in this case. In other words, nothing herein shall be construed to limit the work and activities of the Barrick entities which is authorized under pre-existing permits and approvals. Cortez has received permits and approvals, other than the FEIS and ROD plaintiffs are presently challenging in this case, for exploration and other activities for the Cortez Hills Project. For example, Cortez has received permits and approvals to install instrumented drill holes and storm water control features under a separate permit and exploration plan of operations. Thus, such previously permitted work will be permitted to continue and not be affected by this Stipulation.”

The Stipulation also provides that “Cortez will temporarily suspend the following activities permitted by the FEIS and ROD in this case” and will “not cut trees, begin mining, or conduct further activities permitted by the ROD in this case, in the approximately 835 acres comprising the Cortez Hills Project pit area.”

The Stipulation specifies, “Cortez, however, will be allowed to disturb the pit area to the extent required to move the power transmission line, construct the haul road, or perform previously permitted work,” but “will not perform site preparation, construction work, or conduct further activities permitted by the ROD in this case, in the approximately 1,936 acres comprising the Cortez Hills Project waste rock dumps” or “on the approximately 328 acres comprising the Cortez Hills Project leach pad;” and “will not perform any work or other activities within a radius of 200 yards of the water monitoring well PD-03 that is located just north of the C area and will not impede plaintiffs’ access to and use of this area.”

This includes the site of the Western Shoshone sweat lodge and fire pit, which had been blocked and disturbed by Barrick Cortez shortly after Thanksgiving.

The document further states that “the parties agree that in light of this Stipulation, plaintiffs’ motion for a temporary restraining order” is “moot.”

The Stipulation specifies that “Plaintiffs are not required to post a bond before the Preliminary Injunction hearing, however, Cortez reserves the right to seek a bond if the Court should enter a preliminary injunction, and this Stipulation and/or any resulting Order from the Court shall not prejudice Cortez’s rights to seek such a bond, nor prejudice plaintiffs’ rights to seek a zero or nominal bond.”

Further, the document specifies, “The conditions and restrictions of this Stipulation will remain in full force and effect until 3 calendar days after the close of the preliminary injunction hearing, or January 23, 2009, whichever is earlier.”

The Stipulation provides that “neither plaintiffs, nor any members of plaintiffs’ organizations shall impair, impede, or otherwise interfere with the work permitted under this Stipulation. Except for work expressly authorized by this Stipulation, Cortez shall not impair, impede, or otherwise interfere with plaintiffs’ and their members’ access to and use of public land.”

The Stipulation’s “terms and conditions are without prejudice to the parties’ respective claims, defenses, positions, and arguments relative to the plaintiffs’ motion for a preliminary injunction and the merits of this case.”

Flynn noted that Western Shoshone working on an arbor at the ceremonial site on Mt. Tenabo should “not interfere with Cortez’ operations in any way” and “anyone wanting to do a protest” should “stay by the arbor and the sweat lodge” otherwise “it would break the agreement.” Flynn emphasized that Shoshone supporters must not interfere with Cortez equipment or personnel; and while they can take pictures should not approach Cortez equipment.


A preliminary injunction with conditions that allow some work to continue is not a preliminary injunction. It is a "let's entertain some folks until we continue with our crimes against the indigenous peoples of this land". Attention! Barrick Cortez, BLM, Judges, Bush and the U.S. government,YOU ARE THIEVES!! THE LAND IS NOT YOURS!! YOU HAVE NO RIGHTS HERE!! GET OUT!! I AM ASHAMED TO CALL MYSELF AN AMERICAN BECAUSE YOU HAVE DISTORTED ALL THAT WE ARE SUPPOSE STAND FOR!!

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