February 22, 2013
by Lisa J. Wolf, Correspondent
From a release by the Great Basin Resource Watch
RENO -- The Great Basin Resource Watch (GBRW) and the Western Shoshone Defense Project on February 20th filed a ‘Motion for Preliminary Injunction’ in Federal Court in Reno following their filing a February 15th Complaint challenging the decisions of the United States Department of the Interior and Bureau of Land Management (BLM) approving the Mount Hope Project located some 23 miles north of the town of Eureka.
One of the residents in Diamond Valley nearest to the proposed mine said, “We own the closest private property to the Project in two directions. Our ranch and farm are located close enough to Mount Hope to be adversely affected by the mining caused imparment of our air, increased heavy truck traffic, and the very real damage to our business from the massive pumping and resulting drawdown of groundwater. Our water is not infinite. Adding to our water over appropriation problem is very wrong. I believe it is wrong to break laws that are in place to protect us, in the name of progress.”
“The Western Shoshone that toured the Mount Hope site in 2007 all agreed that the impacts to the water resources, loss of mature piñon/juniper forest, and destruction of cultural sites to too high of a price for this mine, “ said Larson Bill, Western Shoshone Defense Project. During the tour Western Shoshone Elder Bernice Lalo of Battle Mountain said, “I don’t understand this attitude of destruction.” Pauline Estevez, Timbisha Shoshone said as we passed a spring, “what is important is what is here now ... that spring is our ancestor, it is a cultural site.”
The legal challenge is based on three causes: “(1) Failure to Protect Federal Reserved Water Rights and Withdrawn Lands, Unauthorized Disposal of Federal Property in These Waters and Lands, Violation of Public Water Reserve No. 107 and Related Laws; (2) Violation of the National Environmental Policy Act (NEPA); and (3) Violation of the Federal Land Policy Management Act (FLPMA).”
The Complainants go on to say, “The ground water withdrawals associated with the Project are predicted to cause many springs and/or waterholes to be eliminated or have substantially reduced flows. The BLM must ensure that these springs and/or waterholes are not impaired by the Project, particularly the dewatering. Springs and waterholes on public land in the West are reserved for public use by Public Water Reserve No. 107 (“PWR #107”), which was created by Executive Order by President Calvin Coolidge in 1926. PWR 107 provides:
“[I]t is hereby ordered that every smallest legal subdivision of public land surveys which is vacant, unappropriated, unreserved public land and contains a spring or water hole, and all land within one quarter of a mile of every spring or water hole located on unsurveyed public land, be, and the same is hereby, withdrawn from settlement, location, sale, or entry, and reserved for public use in accordance with the provisions of Section 10 of the Act of December 29, 1916.”
The Complainants argue that “[u]nder this Executive Order and related laws, BLM cannot authorize activities that will impair the public use of any reserved waters and/or lands. BLM’s approval of dewatering, and other activities associated with the Project, which could dry up or materially reduce springs and waterholes protected by PWR 107 is not in compliance with these requirements. BLM cannot dispose of federal property such as PWR 107 reserved water rights without congressional authorization, which authorization has not occurred here.”
“In addition, this Executive Order, related laws, and FLPMA prevents the federal government from allowing a mining operation to diminish any of the reserved waters. These waters are held pursuant to a federal reserved water right and are to be used (and protected by BLM) for the purposes of the reservation—i.e. public watering uses. Federal reserved water rights derive from federal reservations. Removing the water from these springs and/or waterholes, as a result of groundwater withdrawals from the Project or any other related activity, is prohibited.”
“Springs and/or waterholes that will be affected by the Project’s dewatering and other operations are utilized by livestock grazing on public land. Public lands at and near the Project, and public land and waters covered by the 1926 Executive Order and potentially affected by groundwater pumping, are covered by grazing allotments and permits issued by the BLM. The elimination or reduction of water flow at springs and/or waterholes would adversely affect the ability of livestock to utilize those water sources in the future. Reduction or loss of water flow in springs and/or waterholes used by livestock would result in the displacement of livestock from the site, and/or concentrating livestock at water sources not affected by dewatering. Destruction or loss of the reserved waters and withdrawn lands under PWR 107, including the location of Project facilities within the withdrawn lands, and/or the preclusion of public access via fencing, is prohibited under PWR 107, FLPMA, and the SRHA.”
“When approving the Project, BLM did not ensure that the lands would be kept and held open to the public for watering purposes. At a minimum, the lands at and around the PWR 107 springs that will be buried or significantly compromised have not been held open as required. This is true for those lands/waters directly buried and adjacent to the mine facilities, but also any such lands/waters where access will be precluded by the Project’s fence.”
“NEPA requires the BLM to fully analyze all mitigation measures, their effectiveness, any impacts that might result from their implementation, and consider all direct, indirect, and cumulative environmental impacts of the proposed action. Overall, BLM failed to take the required ‘hard look’ at the Project’s direct, indirect, and cumulative impacts, as required by NEPA.”
“For example, BLM failed to analyze any mitigation (let alone its effectiveness) for the pit lake water quality violations and ground water impacts/loss as well as many of the air pollution emissions. The purported analysis of ‘mitigation’ (and its effectiveness) for surface water rights, was also inadequate. The mitigation ‘treatment plan’ for impacts to historical and cultural resources, as admitted by BLM, was also not analyzed in the draft EIS (DEIS) or final EIS (FEIS), nor subject to public review during the NEPA process. It was impossible for the public to review and comment upon this plan, as it has a right to do under NEPA, when it was only produced by the company after the FEIS was completed.”
“NEPA requires that BLM review, and the public have the opportunity to review and comment, on all material aspects of the Project and its impacts before decisions are made and before actions are taken, including before issuance of the FEIS. That has not occurred in this case. For example, the FEIS disavows any consideration of the impacts from the ‘toll roasting’ of concentrates/ores at the Project. There is no mention, let alone analysis, of the impacts from these off-site mines, or a full analysis of the transportation and other impacts from the mining, hauling, and roasting of these ores. Thus, BLM failed to review the direct, indirect, and cumulative impacts associated with the toll roasting.”
“The Financial Guarantees (FGs) for reclamation, water and other mitigation were also not subject to the mandated public process under NEPA. The public never had the opportunity to review or comment upon the FGs, which violates NEPA’s mitigation requirements, as well as the even more fundamental requirement that the public be involved in the review of all aspects of the Project under consideration by BLM.”
“As noted by EPA, in urging BLM to comply with NEPA in the review and establishment of the FGs:
The Draft EIS states that drain-down solutions from the tailings storage facilities are expected to contain aluminum, antimony, cadmium, fluoride, manganese, molybdenum, and sulfate concentrations that exceed water quality standards, and will become acidic over time. Waste rock seepage will contain high concentrations of aluminum, arsenic, cadmium, fluoride, manganese, nickel, zinc, copper, iron, lead, beryllium, thallium, selenium, sulfate, and total dissolved solids. If tailings and waste rock disposal facilities, fluid collection systems, and evapotranspiration cells are not properly managed over the long-term, the project could result in significant and long-term degradation of surface water and/or groundwater quality, as well as wildlife exposure to these waters. - March 28, 2012 EPA letter to BLM.
“And in its November 13, 2012 letter to BLM EPA stated, the FEIS failed to comply with NEPA, as did the Draft EIS:
“With regard to a number of other important issues, EPA finds that the Final EIS does not contain revisions responsive to the comments provided on the Draft EIS. In particular, the discussion regarding post-closure financial assurance requirements remains far too general and the EIS continues to lack a quantitative discussion of the trust fund requirement. As a result, the Final EIS does not adequately disclose information critical to determining the project’s long term environmental consequences. For this reason, EPA finds the Final EIS to be unresponsive to our comments and we continue to recommend that the EIS be formally supplemented to address our previous comments.”
The Complainants note, “In their comments on the Draft EIS, the Eureka County Commissioners highlighted the Project’s severe impacts on ground and surface waters and BLM’s failure to fully review and protect these resources:
“The affected natural resource that pervades the entire project and its surrounding environment is water. The DEIS’s failure to treat this resource with requisite attention, detail, and quantification affects the sustainability of this resource on its own; but perhaps more importantly, the failure to protect water produces a failure to protect resources critical to Eureka County agriculture and recreation and the health and wellbeing of the County's residents. The County highlights as an example the superficial treatment of proposed dewatering of Roberts Creek (including the corollary of increasing groundwater extraction to pipe that substitute supply into the creek as a mitigation measure). The County questions the DEIS’s assertion that reduction in creek flow will not become significant until the stream is completely dewatered; and the corollary suggestion that expanding groundwater extraction, beyond that already specified for direct application to mining operations, and lacing the landscape with pipes, would provide worthy or effective mitigation. - February 28, 2012 letter from Eureka County to BLM.”
"The Mt. Hope Mine Project would be one of the largest open pit mines in the nation. Mt. Hope and its environs will be obliterated if this project goes forward as planned, and given the inadequate environmental analysis long-term impacts to the land, air, and water could deliver a significant blow to the nearby ranching and farming community,” said John Hadder, Director of Great Basin Resource Watch.
“Some are leaving the area and others are wondering if they will have a livelihood in the shadow of this huge mine project. Its time for the public to challenge the Nevada Mining Association’s PR slogan, ‘Mining is Good for Nevada,’ If Nevadans are going to shoulder the brunt of huge mining projects then the least the industry can do is not violate our laws, and the federal and state agencies need to enforce them,” Hadder said.
Zach Spenser, External Communications Manager for General Moly, was not surprised but had not been aware on Saturday of the case having been filed in federal court.
Spenser said, “The actual project underwent an exhaustive environmental analysis and review and that lasted more than six years” and “the BLM EIS process included extensive public and cooperating agency input” such as “the National Park Service, the EPA, NDOW, and the County of Eureka.” Spenser deferred to the BLM, “The BLM’s doing its job and complied with federal statutes and rules.”
Spenser noted that the Duckwater Shoshone have been supportive “and their tribal elders and spiritual leaders recently conducted a ceremony to bless the ground and the Mt. Hope Project and that was December 7th of 2012.”
“We’re confident that BLM did its job and complied with statutes and rules and believe that BLM’s EIS for the Mt. Hope Project is very well-done and extremely defensible,” and Spenser reiterated that “we’re definitely committed to being both short-term and long-term good neighbors and Mt. Hope is a multi-generational project with an expected mine-life of over 40 years” and “we’ll continue to develop the mine in an environmentally and socially-responsible manner.”
On Sunday, February 24, 2013, John Hadder of GBRWA, explained that the BLM review that they had requested of the EIS approval in December had been refused by the State BLM Director. Hadder explained the case has been filed in Federal Court. “We could have appealed to the Internal Board of Land Appeals, but why bother they’re not going to do anything.”
Hadder said, “Basically, the request for petition to state review” is “important to show we’re attempting the administrative avenues that are available. The courts respect that so when we go into court we can say ‘yes, we did file for review.’”
“We filed last Friday a complaint and then this week we filed the Motion for Preliminary Injunction” which “goes to the District Court in Reno, just like the Mt. Tenabo case. Interestingly, we’d been assigned the same judge we’d had for Tenabo, Larry Hicks, and he recused himself.”
Hadder expects the case to be heard in the next month. “There will probably be a hearing on it. Roger [Flynn] will come and argue on it” and “we may have some witnesses, one of the people in Diamond Valley agreed to come and be a witness. It will kind of follow that process, the court gives its ruling. Since we’re asking for injunctive relief hopefully they’ll move pretty quickly on it and then if we don’t have satisfaction on it we’ll appeal to the 9th Circuit. It all depends on what comes out of the ruling.”
As to whether it could stop General Moly’s work, Hadder said, “This Public Water Reserve is interesting” and said, “This will be the first time that public water reserves come up.” Hadder said, “It’s a pretty ripe issue” and it appears the two requisites of that law have been violated. Hadder said, “The only way to avoid that and to not violate Federal law is to change the mine plan. They could have done it initially if they’d paid attention to this issue.”
Public water reserves are across the west but they’re not everywhere. The Mt. Hope Mine project includes several and Hadder said the Final EIS indicates no public water reserves will be impacted but said the ones they mention in their complaint are within the 10 foot draw-down cone in the Final EIS so “the graphs show something different.”
Asking for injunctive relief means it should be expedited and the GBRW hopes it could be heard as early as March. “What will happen is: we don’t file against the mine; we file against the Federal government, the BLM, and what will happen is General Moly will issue a Motion to Adjoin to the case.” Hadder said, “We won’t make a fuss about that. So, that will happen and by that time when they make that motion it will be pretty clear who their attorneys are.”
Asked at what point it becomes a possibility that the mine will have to stop work, Hadder said, “Well, if the Reno court rules in favor and says, ‘No, you violated the law;’ then that makes the Record of Decision null and void; and they have to stop at that point.” Hadder said, “If we have a hearing in mid-March it’s possible by the end of the month there could be a decision and if the courts agree with us they’d have to stop at that point.”
Hadder said, “We have some support within the agricultural community there and that’s a long time interest in the area.”
GBRW is a non-profit as is their lawyer Roger Flynn’s organization, the Western Mining Action Project. Hadder said, “So he’s independently funded and he’s essentially pro bono and “we wouldn’t be able to do these cases without him.” The Western Mining Action Project “can only represent public interest organizations. When I’ve spoken to some of the people, especially the growers, they felt it was so expensive to try to do anything legally. It seemed like there was no easy way; so this process that we have with Roger is really the only way we have to challenge these projects. It’s really the only way, in our view, that that people’s voice gets out there through this mechanism. It is ridiculously expensive; no doubt about it.”
Hadder said, “It’s difficult challenging the industry and the Federal government on these things, but we’ve got a lot of interesting issues in the case.” Hadder added, “The Public Water Reserve is a new aspect of the case which could have interesting repercussions if the court agrees with us.”
The BLM was not available for comment at the time this story was posted.