Article and photo by Lisa J. Wolf, Correspondent
January 26, 2009
RENO, Nev. -- Monday, January 26, 2009 at 3:00 p.m., Judge Larry Hicks “denied the Plaintiffs’ motion for a Preliminary Injunction in its entirety on the grounds that the Plaintiffs had not demonstrated likely success on the merits to warrant the extraordinary remedy of a Preliminary Injunction, according to Chris Worthington, Planning & Environmental Coordinator for the Bureau of Land Management’s Battle Mountain Mt. Lewis Field Office.
Said Worthington, “That means basically they [Barrick Cortez] can go ahead and start up.” Worthington expects Hick’s written rule on Tuesday, January 27, 2008.
Worthington said, “On the Religious Freedom Restoration Act (RFRA Claim), the Court found that, based on the Navajo Nation Case, a substantial burden was not demonstrated in this case; and then he considered it significant that Plaintiffs would continue to have access to areas they claim for religious and spiritual purposes,” including the top of Mt. Tenabo, the White Cliffs, and Horse Canyon. “He concluded that their spiritual experience may be diminished by the project, but that does not amount to a substantial burden.”
Worthington, who received the legal synopsis from Donna Fitzerald, Justice Department Attorney who represented the BLM in the case, related that “On the NEPA claims, the Court described the EIS [Environmental Impact Study] as very thorough and obviously the product of thousands of hours of analysis and expertise by either the BLM or the contractor. He further concluded that BLM gave all of the relevant issues raised by this type of project the requisite ‘hard look.’”
“On the FLPMA [Federal Land Policy Management Act] claim,” Worthington related that “the Court reviewed the requirement that BLM take any action necessary to prevent unnecessary or undue degradation to the public lands and determined that based on what had been presented in the Government’s brief and arguments, the Agency had satisfied the standards.”
Judge refuses to halt huge Nevada gold mine
By SCOTT SONNER, Associated Press Writer
Monday, January 26, 2009/San Francisco Chronicle
A federal judge ruled Monday a massive gold mine project could proceed in northeast Nevada despite a bid by a Western tribe and conservationists to block it on religious and environmental grounds.
U.S. District Judge Larry Hicks ruled there's not enough evidence to force Barrick Gold Corp. to postpone digging a 2,000-foot deep open pit at the Cortez Hills mine on Mount Tenabo 250 miles east of Reno until a trial is held on the merits of the project.
The Great Basin Resource Watch and the Western Shoshone claimed the U.S. Bureau of Land Management's review of the Toronto-based company's proposed mine ignores some of the environmental effects and disregards tribal leaders' concerns it will destroy a sacred landmark.
Hicks, who took more than a half hour to explain his ruling from the bench, said a preliminary injunction like the one the plaintiffs wanted is an "extraordinary remedy" taken only when there is a likelihood they will prevail at trial.
He said that while he might change his mind, so far mine opponents had failed to prove construction of the mine would violate the tribe's religious freedoms or that the BLM violated any federal environmental laws in approving the mine under the Mining Act of 1872.
"The effect of the proposed mining project is on the plaintiffs' subjective, emotional experience. It is offensive to their sensibilities and in the mind of some will desecrate a sacred mountain," Hicks said.
"Nevertheless, the diminishment of that spirituality — as serious as it may be — under the Supreme Court's holdings it is not a substantial burden on religious freedom," he said.
Hicks said he also disagreed with the opponents' claims that the BLM violated the National Environmental Policy Act and Federal Land Management Policy Act by failing to adequately consider effects on groundwater and scenic values of the area.
He said an environmental study was very thorough.
"It is very clear it represents thousands and thousands of work hours by BLM," Hicks said.
"The court is satisfied they met the laws that require the BLM to take a hard look at all of the issues that pertain to a project such as this one," he said.
Louis Schack, manager of communications and community affairs for Barrick Gold of North America, said the company was glad Hicks agreed the project was "thoroughly reviewed and responsibly approved" by the BLM.
"This is the most studied and scrutiinized mining project in Nevada. It is also very important to the economic stability of rural Nevada," Schack said.
Roger Flynn, a lawyer with the Western Mining Action Project representing the tribe and the Great Basin Resource Watch, said before the ruling was issued that the plaintiffs would consider appealing to the 9th Circuit Court of Appeals in San Francisco. He did not immediately return a telephone call or e-mail seeking comment after the ruling.
Lawyers for Barrick — the largest gold mining company in the world — said any delay in digging the mine would have caused an undue financial hardship on the company and its workers during tough economic times.
The company is prepared to spend $640,000 a day for the next 15 months, said Francis Wikstrom, a lawyer for Barrick. He said a lot of that money would remain in Nevada, a state that produces more gold than any other — trailing only South Africa, Australia and China internationally.
Thirty workers already have been laid off and 250 to 300 more would be out of work and unlikely to find other jobs if the project had been halted, he said.
"This is basically the only game in town in northern Nevada," Wikstrom said. "People need to feed their families."
Hicks said the case has "tremendous significance" to the tribe, the mining company and its workers.
"And it certainly has huge implications to the public at a time of severe economic difficulties throughout the nation, not just in Nevada," he said.
Hick said that while there was no question Mount Tenabo was a very important mountain to the Western Shoshone, mining has been prevalent on the mountain since the 1860s — even before Nevada was a state.
Protest Barrick Net
On the morning of January 21, the paramilitary police units that were brought by the hundreds after last month's uprising by the local communities met a group of youth in an area where villagers' homes come right into the mine fence. Apparently, the paramilitaries started to chase the youth and in the process opened fire, killing Muhono Marwa Gibare and wounding Nyakebayi Chacha Nyakebayi and Maswi Bokobora. Muhono Marwa was shot in the back while running away from the police. He died instantly. This latest killing brings to two villagers who have died violently in that mine since last month and eight since Barrick apparently adopted their shoot-to-kill strategy in July of 2005.