People whose livelihoods depend on creating and extending controversy about the Crown Jewel Mine have suggested that Battle Mountain did not litigate the federal denial of its plan of operations because the company had concerns about the merits of its case (HCN, 5/24/99). In fact, just the opposite is true.
Battle Mountain was confident that the merits of its position were so overwhelmingly strong that Congress would take quick action to remedy the illegal denial. Battle Mountain's decision not to pursue costly and time-consuming litigation was vindicated by the passage of legislation overturning the denial less than 60 days after the date of the denial. The action of Congress saved the taxpayers from footing the substantial bill that would have resulted had Battle Mountain litigated the matter.
The denial was based upon an alleged millsite-to-mining claim ratio limitation. Kenneth D. Hubbard, a well-respected mining law practitioner with the international law firm of Dorsey & Whitney, recently wrote: "This millsite limitation is not now and never has been the law of the United States." It is perhaps generous to even call the alleged ratio limitation an "interpretation" of the law. Mr. Hubbard also noted that: "While dressed up in legal-sounding language, the Solicitor's Opinion (announcing the millsite-to-mining claim ratio limitation) is really just an attempt to support a particular policy position. It is not a legitimate legal analysis."
The alleged limitation is also totally inconsistent with numerous agency guidance documents. For example, the BLM Manual provides that "There is no limit to the number of mill sites that can be held by a single claimant," and the BLM Handbook for Mineral Examiners provides that "Any number of mill sites may be located, but each must be used in connection with the mining or milling operations."
I hope this explains that Battle Mountain's decision not to resort to litigation was not based on any perceived weakness in the company's potential case, but rather on the overwhelming strength of the company's position and its confidence that the rule of law would be upheld by Congress.
Greg V. Etter
The writer is vice president and general counsel of Battle Mountain Gold.