Court ruling gives land managers power to say ‘no’ to mining companies

SANDPOINT, idaho — When Kootenai National Forest Supervisor Bob Castaneda visited Sandpoint, Idaho, last summer to defend the Forest Service’s approval of the Rock Creek Mine, he found a room jam-packed with angry locals. "If I lived here, I would be concerned also," he told them. "The mine will have minimal benefits to Sandpoint, but many risks for Lake Pend Oreille."

The proposed copper and silver mine, which has been in the works for decades, would tunnel underneath a nearby wilderness area in Montana, and discharge up to 3 million gallons per day of wastewater, treated with experimental systems, into the Clark Fork River. The river empties into Lake Pend Oreille, the "crown jewel" of Idaho, and Sandpoint’s main tourist attraction (HCN, 2/18/02: Battle brews over a wilderness mother lode).

But Castaneda said he had no alternative but to approve the mine. His hands were tied by the 1872 Mining Law — a law nicknamed the "last American dinosaur" by critics — which gives mining companies essentially the same rights today as they had when Manifest Destiny was all the rage.

The forest supervisor’s logic parrots that of Interior Secretary Gale Norton. Shortly after coming into office, Norton abolished reforms authorized during the final hours of the Clinton presidency, which allowed land managers to deny permits for mines that would do "substantial, irreparable harm" to public lands. Norton argued that the rules gave the Interior Department authority it didn’t legally have, and in 2001, reinstated most of the industry-friendly regulations that existed in the 1980s and ’90s (HCN, 4/9/01: Republicans launch counteroffensive).

But a recent court ruling in Washington, D.C., has given Norton back the job that she tried to wash her hands of — the job of protecting the environment from destructive mining practices. Mining opponents call the ruling a watershed.

"Mining companies are no longer top dog on public lands," says Roger Flynn, the Western Mining Action Project attorney who argued the case.

Interior Department gets a scolding

The ruling, from U.S. District Court Judge Henry Kennedy, comes out of a lawsuit filed by the Mineral Policy Center, Great Basin Mine Watch and Guardians of the Rural Environment. "Ostensibly, we sued over (Norton’s mining) regulations," says Lexi Shultz of the Mineral Policy Center, "but our main point in suing was to highlight the need for the Interior Department to prevent undue degradation of public lands."

Following Kennedy’s decision, the Interior Department claimed victory, because the judge found nothing "illegal" about Norton’s new rules. "We believe that the comprehensive framework of the regulations have been upheld," said Interior Department Press Secretary John Wright.

But Flynn says the real victory goes to environmentalists. Kennedy ruled that Norton’s regulations clearly prioritized the interests of mining companies over people who seek to protect the land, and "may well constitute an unwise and unsustainable policy." He also — and this is the part that has environmentalists doing cartwheels — ruled that the Interior Department had abdicated its duty as an environmental steward.

Specifically, the judge targeted the legal opinion by Interior’s former top lawyer, William Myers, that Norton used to overturn the Clinton-era mining reforms. Myers emasculated the Bureau of Land Management in 2001, when he found that the agency had no authority to stop environmental degradation resulting from activities deemed "necessary" to mining. But Judge Kennedy said Myers had it wrong, and that the Federal Land Policy and Management Act gives the agency the authority and "indeed the obligation" to protect the environment.

(Myers resigned in December, under investigation by the Interior’s Inspector General. President Bush recently nominated him for a lifetime job as a federal judge.)

Going one step further, Kennedy ruled that if federal land managers permit roads, pipelines or tailings dumps outside a mining company’s mineral claim, they must charge the company fair market value for the use of federal lands. Historically, mining companies have been able to construct such additions on unclaimed lands without paying the Bureau of Land Management or Forest Service.

"This is the first time a court has required the Interior Department to get compensation back from mining companies," says Flynn. In the future, he says, timber, oil and gas companies may also have to pay market value for using public lands where they don’t have valid claims.

A new tool for activists

Kennedy’s ruling is welcome news for citizens fighting mine proposals around the West.

At the Rock Creek Mine near the Montana-Idaho border, environmentalists have long argued the mine would harm pristine waters and endangered species in the Cabinet Mountains Wilderness. Recently, their cause has gained support in the historically conservative town of Sandpoint on Lake Pend Oreille. Last summer, the Sandpoint city council signed a resolution objecting to the mine because the lake attracts tourists and second-home owners who are vital to the local economy.

Kennedy’s ruling says the Forest Service has the right to say "no" to the mine’s owner, notorious mining baron Frank Duvall, and must take into account other uses for the land under its "multiple use authority." Where wilderness is the predominant "use," the agency would have to prove that mining would be more appropriate. Also, many of the operations necessary to the Rock Creek Mine would be constructed on lands where Duvall has no valid mining claims. Even if the Forest Service approved the mine, Duvall would have to get a special-use permit for the land he needs around his claim — and the expense of that permit could render the project economically infeasible.

In California, Kennedy’s decision could put the brakes on the Glamis Imperial gold mine. Clinton’s Interior secretary, Bruce Babbitt, denied the mine a permit in January 2001, citing irreparable damage the cyanide heap-leach mine would cause the environment and archaeological sites (HCN, 12/17/01: Gold may bury tribe’s path to its past). On the day after Thanksgiving, 2001, Norton undid Babbitt’s decision, citing Myers’ legal opinion — which is now in the wastebasket.

Norton has yet to approve the Glamis mine, but Roger Flynn says she’ll find herself in a lawsuit if she does. "With Glamis, even the Bush people don’t disagree that it will cause undue degradation," he says.

The author is a former HCN intern.