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WESTERN SHOSHONE SPRING GATHERING 2009
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WESTERN SHOSHONE GATHERED ON MT. TENABO INTERRUPTING MINING EXPANSION CONSTRUCTION

THE ENTRANCE TO AN OLD MINE ON MT. TENABO
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AN OLD MINE ENTRANCE FROM MINING DAYS OF OLD

 

9TH CIRCUIT COURT OF APPEALS CONSIDERING WHETHER BLM   MISCONCEIVED FLPMA AND THEIR COMMITMENT UNDER THE LAW TO PREVENT HARM IN TENABO EXPANSION

By Lisa J. Wolf

June 13, 2009

 

Although the Supreme Court ruled on Monday, June 7th not to hear the case brought by the Navajo, Hopi, et al to stop the Forest Service from allowing the Snow Bowl Ski Resort in Arizona to spray recycled wastewater on the San Francisco Peaks, leaving only narrow Religious Freedom Restoration Act arguments to Native American tribes and their allies trying to protect what they consider sacred sites, Roger Flynn attorney for the Western Shoshone pressed forward before the 9th Circuit Court of Appeals in San Francisco on Wednesday June 9th for a preliminary injunction that would cease construction of  Barrick Gold’s Cortez Expansion project until the case returns to District Court in Reno to be considered on merit.

 

How the 9th Circuit Court of Appeals will rule may be reflected in the make-up of the 3 judges and their questions. The Justices considering the preliminary injunction appeal are Mary Schroeder, a Swarthmore and University of Chicago Law School graduate appointed by President Carter in 1979 who served as chief judge from 2000-2007;  Asian American Justice Atsushi Tashima, a UCLA and Harvard Law School graduate, who was initially placed on the U.S. District Court by Carter in 1980 and then appointed to the 9th Circuit Court of Appeals by Clinton in 1995; and Cincinnati, Ohio-born Radcliffe and Berkeley School of Law educated, Marsha Berzon who was nominated by Clinton to the 9th Circuit in 2000.

 

With each side having 15 minutes, Flynn began by arguing “irreparable harm” under the “Undue Irreparable Harm” Standard. The Court questioned whether or not UUD was triggered by “violation of some other statute.”

 

Flynn acknowledged “that’s the key statutory issue” and argued, “The statute is the Federal Land Policy Management Act and it says the BLM and the Interior Department shall prevent undue degradation. The BLM’s statutory view here is that that’s a meaningless phrase unless there’s some other violation, Clean Air Act, Endangered Species Act, statutes this Court is very familiar with, ‘We can’t say ‘no.’”

 

Flynn argued, “The Clinton Administration in a legal ruling said the Department has to deny a mine that has irreparable harm.”

 

Flynn noted, “I was lead counsel in that Mineral Policy case and the Bush Administration came in and said, ‘We do not have the legal authority to prevent undue degradation unless another law is being violated and we argued to the District Court, ‘Well that means FLPMA doesn’t mean anything” and “the District Court agreed with us and said, ‘No, the BLM basically has the duty to deny these substantially irreparably harming mines.”

 

Flynn continued, “Time and time again the Interior Department tells the District Court under the current regulations, ‘We will deny a mine under the Undue Degradation Standard if there’s significant irreparable harm, substantial irreparable harm to a significant cultural or environmental resource.” Flynn said, “If you look at the statements to the District Court from the Interior Department, they specifically say, ‘We’re going to apply the Undue Degradation Standard particularly to protect resources that are not protected by other laws like Endangered Species” and “they specifically mentioned Native American cultural.”

 

Flynn said, “They’re sort of going back to the discredited and rejected view that the District Court rejected saying, ‘We have no authority. We can’t deny a mine unless there’s some other violation. Well, that takes the heart of FLPMA that the District Court in Mineral Policy Center said superseded U.S. mining laws, that essentially makes it a nullity; and we don’t think that’s the proper interpretation of FLPMA.” Flynn pointed out that the BLM office that approved the project in evaluating 150 mining and exploration projects “never denied a single one ever.”

 

Flynn also held “the other thing wrong with the BLM’s decision” was “their decision on no undue degradation was based” on their statements that “there will be no Western Shoshone religious practices at the mine site and none will be adversely affected. They made this determination when they printed the Draft EIS; then the tribes submitted all their comments, the individuals submitted declarations all saying, ‘What are you talking about? That’s where we go to pray at the mine site.’” Flynn said, “The final EIS really didn’t change from the Draft EIS” and the BLM “stuck to their position no Western Shoshone uses at the site. That’s classic arbitrary and capricious decision making.”

 

Flynn said, “We’re not challenging the lack of consultation here. The BLM consulted with the tribes” who “gave them their information about the significance of these religious practices and the BLM basically said, ‘Religious practices, what religious practices? We don’t see any.’”

 

The Court pointed out the BLM in the EIS “seemed to agree that this had religious significance and that there were religious practices. The mine is saying that that isn’t so.”

 

Flynn pointed out, “They say that they can go elsewhere to pray” and that the BLM “stated several times that there were no Western Shoshone religious uses at the site.”

 

The Court asked Flynn to speak about the NEPA claim and Flynn said, “One of the big issues was the PM 2.5. It sounds arcane; but it’s a very harmful criteria pollutant in the Clean Air Act and we argued in the comments, ‘Where is your analysis of PM 2.5?’” Flynn saw “no analysis in the final EIS. All they said is, ‘Well, we meet the standard. Here’s the standard.’ We said, ‘What’s your support? It was a one-liner in the comment section of the EIS: ‘PM2.5 is 15% of PM10. That was it.”  Flynn said the Justice Department argued the point in Court in Reno using an “outdated and now superseded EPA memo” and that “classic Administrative Law is that the decision has to be based on the record. It can’t add justifications essentially 6 months later in the District Court.”

 

Sam Sankar of the Justice Department defending the BLM decision said, “With respect to FLPMA what the plaintiffs are saying in essence is that the existence of the mine, the expansion of the mine violates their religious beliefs” which “might have met the pleading standards for a RFRA claim.”

 

The Court interrupted Sankar to say, “As I understand what they’re saying at a slightly higher level of abstraction” is “that the government’s position that the Undue Degradation Standard only encompasses violations of other statutes and doesn’t have any independent content is wrong.”

 

Sankar maintained that “NEPA’s a procedural statute: it doesn’t require implementation of for example any mitigation requirements that are discussed in an EIS; but in this case BLM said, ‘Here’s your plan of mining operations.’ We’re requiring that you adopt all these mitigation approaches that we’ve specified in the EIS that NEPA doesn’t require.”

 

The Court pointed out, “There does seem to be a particular standard with regard to quote Undue Degradation of cultural and I gather that includes religious.”

 

The Justice said she understood Flynn was arguing “it doesn’t really have to be based on any particular statute; that it has to be based on whether there is a significant and irreparable harm.”

 

Sankar argued, “The plaintiffs are incorrect in this respect. The substantial irreparable harm standard is frankly misstating the law on this. That was the specific part that was removed in the 2001 regulations.”

 

The Justice returned to her point, “All I’m saying here is that there is a legal issue here, a specific legal issue about what the meaning of what undue degradation is and if they were right about their legal issue then it hasn’t been addressed and there would have to be a redo.”

 

Sankar said, “I agree that if they are correct that the substantial harm standard as it existed in 2000 after the Clinton reg’s were put in place still exists; then, yes, there is a legal issue here.”

 

Sankar said without RFRA claims, “the FLPMA and NEPA claims are evaluated on the Administrative Record and the Administrative Record alone” and “BLM went out and tried to find out where things were being used and tried to protect those in designated areas.”

 

Sankar said, “The fact that BLM did that shows that it was not simply saying ‘UUD means nothing.’ It was going out there and doing things that it was not required to under other law.”

 

The Court asked, “Supposing the facts were as they were represented by the plaintiffs and that you agree to those facts, would the agency have any responsibility-slash-authority to deny the permit on that basis?”

 

Sankar asked the Court to clarify which facts and the Court answered, “Facts with regard to the religious use of the whole area as opposed to just a part of it.”

 

Sankar admitted, “If it were correct that there was religious use in the entire area, identified specific religious use areas for example, I think BLM would certainly have to look and see whether the degradation to those religious uses would be undue or unnecessary under the standard.”

 

“‘Look’ meaning ‘consider’ as opposed to then having a substantive obligation?” questioned the Court.

 

Sankar said, “Well, I think it has a substantive obligation but I think that it’s not you know a black-and-white standard” but would involve “a rational process of examining if those are significant.”

 

The Court asked Sankar, “You don’t think that the Substantial Irreparable Harm standard is the standard?”

 

“No, absolutely not, your Honor. Again that was a specific term inserted in the year 2000.”

 

Sankar said, “Congress did not define it and BLM has explained in its reg’s what it means.”

 

With 4 minutes and 25 seconds to speak, Francis Wikstrom arguing for Barrick said, “The standard is did BLM act arbitrarily and capriciously when they concluded that there were no religious uses in the area where the project is?” Wikstrom said, “Not the whole area; and that’s one of the problems is that the way the appellants have defined the Mt.. Tenabo sacred area all of Mt. Tenabo, all of the area where this project is, parts of Crescent Valley which are unspecified, parts of Grass Valley which are unspecified and Shoshone Wells which is over here on the upslope of the opposite mountains; but BLM didn’t stop there: they asked during their consultations, ‘Well, where do you worship? What do you do? Who does it?’ and they got no answers and it’s really not appropriate for appellants to basically sandbag the process by saying, ‘We’re not telling you’ and then criticize the agency for not respecting their so-called religious uses.”

 

Wikstrom said, “What BLM knew is they did an extensive archaeological study of this whole area.  They walked every foot of it and they found no evidence of religious use. They knew that this entire area where the pit is now was basically checker-boarded with drill pads and roads and other facilities and that those people had not seen anybody attempting to worship in the area where the actual project is being built. They did apply all of these other factors. They knew the history of this area: that this entire Pediment area where the mine pit is now was completely deforested by the turn of the 19th century. There was a town site there with 500 people living there.” Wikstrom said “BLM did what the District Court had to do: take all of the evidence into account. Appellants just want you to listen to their most favorable evidence and essentially do a do-over on the agency and what the District Court did.”

 

Questioned by the Justice about religious use on Mt. Tenabo, Wikstrom maintained, “They don’t use the areas where the actual project is being constructed, your Honor.”

 

Wikstrom said Judge Hicks of the District Court said “the public interest in this project going forward was in his words ‘huge” and “was awestruck by the impact of this project” that’s “pumping literally hundreds of millions of dollars into the northern Nevada economy at the time when that economy is struggling mightily. There are presently approximately 600 people working on the site. 300 of those are working for the 50 contractors that are helping construct the mine, the roads, the facilities; the others are engaged in mining.”

 

The Court noted, “The District Court made no finding on the public interest issue.”

 

Wikstrom said, “The written opinion supplemented the oral order that he made and if you read the transcript of that, your Honor, you’ll see he does discuss I believe the awesome economic impact of this project.”

 

The Court responded, “That’s not the only factor that weighs in the public interest: ‘Well, this is really good for the economy.’ You can say that about every major project.”

 

Wikstrom acknowledged, “That’s correct, your Honor. The public interest has to include everything; but I would note that based on the record there will be more Western Shoshone individuals that will lose their jobs than the number of Western Shoshone that came forward and said this is a sacred area in the process.”

 

The Court answered, “They have to decide that for themselves.”

 

The Court in making a decision will consider whether the way in which BLM is implementing FLPMA is valid and whether the agency misconceived the law and their own commitment under the law to prevent harm.

 

BARRICK GOLD ATTORNEYS WON IN RENO DISTRICT COURT
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HADDOCK AND WIKSTROM SUCCESSFULLY REPRESENTED BARRICK GOLD IN TENABO SUIT

CARRIE DANN SPEAKS OUTSIDE FEDERAL COURTHOUSE
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WESTERN SHOSHONE GRANDMOTHER CARRIE DANN OPPOSES MT. TENABO MINING

ROGER FLYNN, WESTERN SHOSHONE ATTORNEY
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ROGER FLYNN ARGUED FOR WSDP PROTECTION OF MT. TENABO

WESTERN SHOSHONE TED HOWARD LEADS PRAYER
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TED HOWARD AND WESTERN SHOSHONE DRUMMED AND PRAYED FOR MT. TENABO

WITNESSES TED HOWARD AND SHAWN COLLINS
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WESTERN SHOSHONE HOWARD AND COLLINS TESTIFIED TO SANCTITY OF MT. TENABO

WITNESS JOYCE MCDADE PROTESTS TENABO MINE
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WESTERN SHOSHONE JOYCE MCDADE TESTIFIED MT. TENABO HEALED HER OF CANCER

MINISTER AND RABBI JOIN PROTEST OF MT. TENABO MINE
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MINISTER NEAL ANDERSON AND RABBI MYRA SOIFER STAND WITH SHOSHONE

WESTERN SHOSHONE PROTEST TENABO MINING
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LARSON BILL (SECOND FROM RIGHT) AND WESTERN SHOSHONE

WESTERN SHOSHONE FACED BARRICK AND BLM IN RENO FEDERAL DISTRICT COURT ON INAUGURATION DAY AND JUDGE RULED IN MINE'S FAVOR

By Lisa J. Wolf, Correspondent

January 26, 2009

Reno, Nevada

 

Western Shoshone upholding the sanctity of Mt. Tenabo led prayers and drumming at 8 a.m. outside the Federal District Court House in Reno, Tuesday, January 20th. The Western Shoshone held signs for passing traffic and news media as prayers and drumming were led by Western Shoshone, Ted Howard. The demonstrators were joined in prayer by the Reverend John Auer of the First United Methodist Church of Reno, Neal Anderson, Unitarian/Universalist Fellowship of Northern Nevada minister and Rabbi Myra Soifer of Temple Sinai in Reno. Western Shoshone Defense Project leader Carrie Dann spoke on the steps but did not enter the courthouse during the four days of the hearing. The correspondent was present for the entire four days of proceedings.

 

As President Obama was being inaugurated in Washington, D.C., the Shoshone and their opponents met in the standing-room-only court chambers of Judge Hicks at 9 a.m. to argue for a Preliminary Injunction to stop Barrick Gold from proceeding with its Cortez Hills project on Mt. Tenabo.

 

Attorneys for Defendants Barrick Gold; and Justice Department attorneys representing the Bureau of Land Management faced Roger Flynn and Jeff Persons representing the South Fork Band Council of Western Shoshone; Timbisha Shoshone Tribe; Western Shoshone Defense Project and Great Basin Mine Watch before Judge Larry R. Hicks of U.S. District Court, District of Nevada in Reno. A Joint Stipulation signed December 11th was due to expire Friday, January 23rd (the last date of the hearing) and has been extended to Monday, January 26th at 3:00 at which time Judge Hicks will make a ruling on the Preliminary Injunction and determine the merits of the case.

 

Central to the Shoshone’s case is the Religious Freedom and Restoration Act [RFRA] passed in 1993, which prohibits the federal government from placing a ‘substantial burden’ on a person’s exercise of religion unless the government’s action furthers a ‘compelling government interest’ or ‘is the least restrictive means of furthering that compelling government interest.’

 

In the case of Navajo Nation vs. USFS, the en banc [all the judges assembled] 9th District Court recently ruled, "substantial burden" is imposed only when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions.”

 

The en banc Court reversed a ruling by 3 judges of the Court who had ruled in the tribes’ favor and chose to rule against the Hopi, Havasupai and Navajos and other tribes who object to wastewater snow being sprayed on the San Francisco Peaks. The Court held the only effect of the wastewater snow “is on the plaintiffs’ subjective, emotional religious experience. That is, the presence of recycled wastewater on the peaks is offensive to the plaintiffs’ religious sensibilities …the diminishment of spiritual fulfillment – serious though it may be – is not a ‘substantial burden’ on the free exercise of religion.” In dismissing the case, the court called the plaintiffs’ religious objections mere “damaged spiritual feelings.”

 

However, the Navajo Nation and other interested parties filed a petition Friday, January 23rd with the U.S. Supreme Court seeking review of the precedent setting case to protect sacred sites and religious practices. The Court is expected to decide in April or May whether it will hear the case.

 

The shadow of the San Francisco Peaks case decision loomed over the lawyers in the Mt. Tenabo case as they presented their RFRA arguments within the perspective of the 9th District Court’s statements in the Snowbowl case. Any subsequent determinations by the Supreme Court could also therefore effect the rulings in this case.

 

The first witness for the Shoshone Plaintiffs was Shawn Collins, an enrolled member of the Te-Moak tribe who has worked 23 years for Newmont as an equipment operator. Collins said, “Mining is good” and that he’s a third generation miner following his father and grandfather. Collins’ great grandmother was “born there at Cortez” and of 5 sisters, “4 for sure were born in that area, Denabo.” [Shoshone plaintiffs pronounce the name of the mountain with a ‘d’ rather than a ‘t’].

 

Collins said the markings on the White Cliff area were put there by “our Father” and are “laws we have to go by.” Collins’ personal childhood memories include going with his grandparents and family when he was 5 or 6 to gather pine nuts. Indian doctor, healer, runs through Collins’ family line and Mt. Tenabo, said Collins is “where our power comes from.”

 

Collins said as a young boy he camped at the old Cortez mine site and gathered paint and food.  When Collins was diagnosed with cancer in 2002 “being Newe [what the Shoshone call themselves],” Collins took care of his “emotional, spiritual side” and to “go cleanse myself went “to a gentleman from Montana,” a Blackfoot, and paid him “tobacco and a Pendleton blanket.” They smoked a pipe and the medicine man told Collins he was going to take him out of his body to “your holy place” where his and Collins’ helpers would be. Collins “touched down on earth” on the North side of Mt. Tenabo and saw the spirits of a man and 4 elderly Shoshone ladies including his grandmother who “started throwing dirt on me.” When Collins was ready he stood up and shook himself “off like a buffalo.” His blood tests are clear.

 

Collins’ feels the spirits of his ancestors reside in the mountain and the Creator “put the writing on the rocks.” Collins runs the Shoshone sweat lodge on Mt. Tenabo. “My family’s power resides on that mountain,” said Collins.

 

Collins sees the water in Tenabo as “earth blood” and “like us, if we lose our blood, we go.” Then the “spirits on the mountain would leave” and for him and his family the “circle of life” is “broken.”  For Collins, “That’s where my family came from.” The Pediment area where the mine is proposed is “Tenabo’s foot” which is “part of the body.” The mine “would be harmful, a wound that won’t heal. The pit will always be there.”

 

Next Ted Howard, Cultural Resources Director for the Duckwater Shoshone, testified to the significance of Mt. Tenabo.  Howard said over the years he’s been to Tenabo some “15 to 20 times” to “pray to the Cliffs.”

 

Barrick attorney Francis Wikstrom pointed out Howard is a member of the Duck Valley band which is “not a plaintiff in this action” and that neither Howard nor the Duck Valley Tribe made comment to the BLM during the EIS process. Wikstrom noted that Western Shoshone Elder Bill Rossi in the forward to now-deceased Shoshone Spiritual Elder Corbin Harney’s book stated, “The whole earth is our church” and noted that in Harney’s book and Howard’s neighbor Stephen Crumb’s book there was “not one mention of Mt. Tenabo.” Wikstrom asked if Howard was “aware of any book that mentions Mt. Tenabo?”

 

Howard said, “Just because not mentioned, doesn’t mean not important.”

 

Wikstrom noted the Western Shoshone National Council served notice to Barrick in December of 2008 that they hold “spiritual gatherings on any land.”

 

Howard said he did not agree with that.

 

Wikstrom asked Howard if the Cortez Hills project would force him to do something against his religion. Howard responded the “water table will drop” and “all life will die.” Wikstrom said, “If the spring doesn’t dry up, your fear will not be realized.”

 

Flynn showed a picture of what the Cortez Hills pit would look like and characterized the proposed impact as “destruction” rather than “diminishment.”

 

Te-Moak Tribe member Joyce McDade of Gooding, Idaho said her family was originally from Ruby Valley and saw Indian doctors at Tompkin Springs “down the road from the gathering site.” Those visits entailed performing prayers and healing with water, bathing, “sweat lodges and vision quests and things like that.” McDade said “4 years ago” she “came down with ovarian cancer” and “came to Mt. Tenabo to seek for my Creator to heal me.”  McDade is “completely healed.”

 

In addition, McDade said two weeks before Thanksgiving she couldn’t walk but was able to get out of her car and “walked up and down the hill” on Tenabo “for 2 days.” McDade acknowledged she goes to other mountains for ceremonies but said, “Tenabo has a lot of power” and feels “energy when I’m up there.” The mine project said McDade would be “spiritual genocide, murdering Mother Earth.”

 

Linking the opposition to the mining project to the desire of some Western Shoshone to reclaim their ancestral lands, Wikstrom referred to McDade’s comments submitted to the BLM which stated, “You are on Western Shoshone territory. Back off.” McDade acknowledged she is opposed to any mining in that area.

 

Costello of the Justice Department pointed out McDade never shared her “particular religious views with the BLM” and Wickstram moved to dismiss which Hicks took under advisement. Thus ended Day 1 and the presentation of the Plaintiff’s witnesses. On days 2 and 3 from 9 to 5 witnesses for Barrick and the BLM testified.

 

Dr. Donald Hardesty, professor of anthropology and archaeology at UNR testified regarding the history of Mt. Tenabo from 1863 when a “prospecting party from Austin and Reese River” came searching for “precious metal bearing deposits reported in legend.” The first mine, the St. Louis Camp, was at the northern end of the White Cliffs of Mt. Tenabo. Ore from the St. Louis mine went by mule to the Keystone Mill in Austin and then to the mill constructed in Mill Canyon where there was water and pinon juniper. Cortez City was described by the Austin newspaper as having 6 buildings including a blacksmith shop and machine shop, and lodging facilities and as many as 50 people lived there. Mugginsville or Shoshone Wells, established in 1863, had 50 structures and between 100 to 150 ethnically diverse people including Cornish and Welsh miners, Italians and Chinese. By 1870 the largest population was Chinese. Hardesty found a reference to Western Shoshone housekeepers.

 

By 1886 the Cortez town site had 4 to 500 people (larger than the present population of Crescent Valley), a boarding house, company store, residences, post office and school.

 

90% of the forest on the Pediment of Mt. Tenabo was harvested in the late 1800s meaning all trees there now are second growth.

 

Hardesty testified to 20 to 30 miles of underground mine tunnels in Tenabo. Until 1938 mining continued on Tenabo, which in 1929 was the top silver producer in the country.  

 

Tenabo saw little activity in the 1940s and 50s but the 1960s marked a new period of exploration and 1968 saw the construction of a leaching and roasting facility in Crescent Valley and the first open pit in 1969.

 

Hardesty noted Native archaeological sites date back 5,000 years but from 1862 there are a limited number of sites on Tenabo associated with Native Americans although “documents mention Western Shoshone working on salt works south of that region.” Hardesty noted records showed the Round Mountain mine was “more than 60% Western Shoshone.” Hardesty saw no evidence of conflicts with Shoshone in the Tenabo area in the 1860s.

 

Attorney Flynn noted previous mining had impacted 132 acres while the new mine covers 835.

 

Barrick’s next witness, Chairwoman Diane Buckner of the Ely Shoshone tribe, described the Western Shoshone Defense Project as a “small group opposing the Western Shoshone distribution bill and now opposing mine sites.”

 

Buckner said until a Barrick tour, she was “not familiar with Mt. Tenabo” and only heard “of its significance” when she “heard of objection to the mine site.”

 

Buckner said there was “no place” she was aware of necessary to “go to have spiritual needs met” and said if the mine is built it will not prohibit her spiritual practice. Buckner noted Ely is a “mining community” and when mines shut down Shoshones “cannot provide for our families.” Buckner “believes Barrick should be allowed to proceed.”

 

Jerry Millet, Tribal Chairman of the Duckwater Shoshone, said Mt. Tenabo is a significant and established religious and cultural site “to some individuals but not to everyone” and does not agree that Tenabo holds a central place in Western Shoshone religious belief and world view. Millet said, “We as Shoshone have our own special places. There isn’t a centralized location.”

 

Millet and his tribe “work for Barrick” doing reclamation work and will be economically impacted if the mine doesn’t go forward. The Duckwater Tribe owns a tracking company which contracts with Barrick.

 

Brian Mason, a Shoshone Paiute from Duck Valley who works at the Ruby Mill Mine, said his grandmother was born in Cortez in the 1880s and was raised for a time at the Dean Ranch in Crescent Valley. When Mason went with a group of Duck Valley Shoshone on a pine nut harvest organized by Placer Dome and got to see reclamation work he “thought I wanted to be part of that” and now works for Barrick as an environmental engineer.

 

Among other responsibilities, Mason looks for harvestable stands of pine nuts and notifies “tribal leadership.” When Shoshone then come to gather pine nuts, Mason and Barrick help set up camp and help Elders “who couldn’t reach the nuts, get them down.” Mason has not seen second-growth trees in the Pediment area capable of producing pine nuts and said to his knowledge Barrick has never denied access for Western Shoshone to gather pine nuts on Mt. Tenabo.

 

Anthropologist and ethnographer, Dr. Lynne Sebastian was asked by Barrick “to look at the ethnographic and historical literature on Western Shoshone in terms of religious beliefs and practices” and “association between physical” sites and practices. Sebastian held that “the ethnographic literature does not support” the special significance of Mt. Tenabo. “In all of the 64/65 sources of ethnographic sources” she read there “was not a single mention anywhere of Mt. Tenabo prior to 1992 and there was no mention of this mountain in any of those sources that are not directly associated with the development of the EIS for the Cortez mine.”

 

While the Plaintiffs maintain that Mt. Tenabo is the source of ‘puha,’ Sebastian noted, “This is the power, the life force that runs through the whole earth” which “makes the whole earth sacred” and from “what’s been told to ethnographers over the last 150 years” doesn’t “have a source” and “doesn’t emanate from anywhere.” The “main thing that concentrates the power is water” and “all mountains in the Western Shoshone homeland is the place where power is concentrated because mountains conduct water” and “are places where power is concentrated, but they are not its source.”

 

The first time Sebastian saw reference to Mt. Tenabo was in the 2002 report for the exploration project.

 

When Flynn asked Sebastian whether she was questioning the sincerity of the Plaintiff’s religious beliefs, Sebastian answered she had “no reason to question the sincerity of anyone in the courtroom.”

 

Robert Wilcox of Carlin, General Drill Foreman for Barrick, has been responsible for the 100 to 150 people working on the Cortez Hills Expansion over the last 6 years. Wilcox said other than a Shoshone gathering in 2002 “down around the old town site,” he had seen no activity of Western Shoshone people in and around the Pediment area in the last ten years and that no one has been denied access to Mt. Tenabo.

 

Barrick’s David Mason of Crescent Valley, Security Director for the mine site since 1994, has a team of 15 full-time security personnel. Roving patrols on both the day and night shift “report anything unusual” and control access. Employees and visitors receive safety training. Operators drive on the “wrong side of the road.” Mason pays attention to who’s coming on and off the property as required by Federal laws.

 

Since the announcement of the Cortez Hills project and the permitting process, Mason said “a lot more Western Shoshone Defense Project have been in the area” and said there have been “a couple of incidents” including a “drilling incident in Horse Canyon” where someone got in a Barrick employee’s face while “filming down into the new project.”  Mason acknowledged an increase in traffic in the Cortez Pediment area and noted the Shoshone have an “area set up where they have a tent and another structure they’re building.”

 

Mason said there have been incidents since November 2008 where work had to shut down. Mason acknowledged Shoshone supporters have “walked onto an area we were working” which is then “shut down for safety” since persons “either have to be trained or given a tour guide.” Mason said, “Never have we denied access;” rather it is “policy to help and assist others to get where they’re going.”

 

Flynn attempted to find what security measures might be taken against a trespasser who refused to take training and all Mason would say is that they would shut down operations and contact management.

 

Judge Hicks asked “if a Western Shoshone or anyone wanted to access Horse Canyon or the old mine site” what the “means of access besides the haul road” is and was told Old Cortez can be accessed by the public by taking the Lander County highway up to Grass Valley to the JD Ranch Road to the Horse Canyon access.

 

Barrick witness Mary Lou McAlexander of the Duckwater Shoshone Tribe said she was “taught to respect the land” and had a “God-given right to use and put it back the best we can” and to “be thankful for what we have” and “don’t forget to thank our Creator God.” McAlexander when asked about Elders said, “I am one of those Elders.”

 

McAlexander worked off the reservation for 13 years as a surgical nurse before becoming health coordinator on the Reservation and went from a $16,000 budget and trips to Owyhee for health care once a month to a clinic with a budget of over $2 million. McAlexander and her husband run MI Enterprises which does environmental reclamation for Barrick, has a pesticide license and a seed farm project. Seed is gathered and used for reclamation plants. In addition, McAlexander’s company provides maintenance for the archaeologists, putting up tents and making sure they’re heated.

 

Of 9 full and part-time employees, the McAlexanders “presently don’t have any Western Shoshone;” but McAlexander who also works with the BLM wants “to put seed farms in on other reservations.”

 

If the “Cortez Hills Project stopped my business would probably stop,” and “would take opportunities away from many Western Shoshone.” If so, McAlexander hoped “Obama has a good welfare system in place.”

 

McAlexander said Barrick is “very open to work with small businesses” and appreciated the “scholarship fund” since “my boy’s gone to school because of the scholarship fund.”

 

Mt. Tenabo holds no special significance for McAlexander who said, “At times I get very angry a few people could be jeopardizing our livelihood” and stated, “As far as religion,” she was taught it can be done anywhere. McAlexander’s father taught her “to be good to my neighbor and treat everyone with respect” and the “biggest part is taking care of your family” and working “hard to provide for your family.”

 

George Fennemore, Cortez Hills Permit Manager, testified the public will have free and unrestricted access to Shoshone Wells through a new county road and will be able reach the old Cortez Town Site, Arctic Canyon and Garrison as the route changes but remains unrestricted. Access to the top of Mt. Tenabo and Mill Canyon will also be unrestricted. The White Cliffs can be reached through Arctic Canyon with no restrictions, no fence, no MSHA, no security clearance.

 

Of 116 archaeological sites within the project area, Fennemore said “fewer than 10 are related to the Western Shoshone” and are primarily “lithic scatters, stone remains that come off of tools” which will be “mitigated as required.”

 

Fennemore said in 1981 during the process for the original permit there was no religious use objections; nor were any such objections made in 1986 or 1987 or in the 1992 pipeline objection which focused on dewatering from a cultural perspective.

 

Fennemore confirmed the juniper in the affected area is too young to produce pine nuts and said no flowing springs would be physically disrupted by the mine facility.

 

Barrick holds the water rights to Shoshone Wells which has been monitored quarterly since 2001 and has a flow of 1 to 2 gallons a minute maximum to as low as a half gallon a minute.

 

No one knows if pit dewatering will affect Shoshone Well Spring since the connection between deeper water several 100 feet below ground and spring water is unknown.

 

Barrick is required to monitor the spring and if an effect on the groundwater and reduction in spring flow are seen to implement mitigation. Fennemore said “waste dumps were designed to not affect seeps” which will be monitored and mitigated. Fennemore said 25 representatives from the Te-Moak and Duck Valley tribes are working as observers on the site although if the project doesn’t go forward they won’t be.

 

Flynn noted that the groundwater will not recover within 100 years due to the 8 years of dewatering in which 16.5 billion gallons will be removed from Mt. Tenabo at a rate of 2 to 8,000 gallons a minute. Of the 50,200 acre feet of.proposed dewatering, 80% will be returned to the ground water basin in Crescent Valley.

 

William L. Wilson of Grand Junction, Colorado, a royalty holder in the Cortez Hills Mine, staked the original claims to the Cortez projects from April of 1961 to 1968 and lived in a travel trailer parked at Shoshone Wells 5 days a week. Wilson got water from the “little spring” and “put plastic polyethylene pipe” to his travel trailer. “No one came and asked to use water for religious purposes,” said Wilson. It was just him “and wildlife.”

 

Wilson “lived out there from 1961 to 1968 pretty much full time” and in the 1970s “did consulting work for Cortez Gold” and in the 1980s assisted with the exploration of Horse Canyon and hunted deer and chukars on Mt. Tenabo. He saw no Western Shoshone in the area he and his brother worked.

 

Daniel Banghart, Project Manager for the Cortez Hills Project, will be responsible for the 15 month construction phase. $290 million has been spent as well as $90 million on exploration and $290 million remains to be spent to complete construction. The daily cash burn rate for construction is $240,000 and if the project moves forward as planned will require $640,000 a day for 15 months.

 

New employees include project team and underground miners (90) and contractors secured (around 50) with approximately 300 workers. About 80 former Jerritt Canyon miners were hired. Of the total new Barrick jobs, 40 are associated with surface work, 100 with underground miners in addition to the 100 employees already employed for a total of 250 jobs; which Banghart characterized as “high paying with excellent benefits and health insurance.” Banghart said there are currently 25 Western Shoshone on the payroll.

 

If Barrick can’t start work on the open pit by the end of the month they’ll run out of mill feed ore starting February 1. By the second quarter of 2010, they’d be out of mill feed and talking about laying off those 100 employees, many of whom live in Crescent Valley and Elko.

 

Banghart said 15 months is the time it will take to “get down there” to where the ore is.

 

Work on the leach pad was shut down and demobilized because of the stipulated court order. Banghart doesn’t want to see the work pushed out into the summer causing loss of another season.

 

Barrick has spent $380 million and will spend $290 million more. Banghart said the impact to Barrick is “100s of 1,000s of dollars a day in lost revenue.”

 

In cross examination, Flynn pointed out the 9.6 million ounces of gold expected to be recovered could show a $7 or $8 billion income as opposed to $700 million in capital investment.

 

Banghart said Flynn’s estimates were “not close to accurate” since the company does not operate for free; rather gold costs Barrick $500 an ounce to produce. Banghart acknowledged, “No doubt it is a very attractive project.”

 

Flynn pointed out that if the court issues an injunction the gold “is not going anywhere” and the “revenue stream will be there when the injunction is lifted.”

 

Contracts were signed with contractors the second half of 2008 prior to the BLM’s Record of Decision and before project approval even though Banghart anticipated the ROD would be challenged. Flynn noted the Company “still went ahead and made contracts.”

 

“Yes,” said Banghart, “I can explain.”

 

“That’s okay,” said Flynn and did not permit the explanation.

 

Flynn offered that workers laid off could be rehired. Banghart said, “That would be the hope” although since they’re “going without pay” he’d “like them to go find work.” Not only would the new workers have no employment, if the new mine doesn’t come on within two years, pipeline employees will be laid off as well.

 

Russ Harvey, Area Manager for Ames Construction’s Northern Nevada offices in Carlin said Ames has 120 employees in Northern Nevada and has 3 contracts for Cortez Hills including site preparation and work on the underground facilities. Ames is to do the earthwork for the conveyor and crusher; the relocation of County Road 225 including constructing the new county road and doing the earthworks and blasting through rock. In addition Ames has a concrete contract. The total value of the 3 contracts is $34 million, which Harvey said is the “most significant contract we have now.”

 

“Some areas we cannot work” because of the injunction said Harvey who noted 13% of the work is completed. Ames started on the conveyor corridor October 1st and has mobilized the earth-working equipment.  Ames had hired 25 people who were “subsequently laid off when the injunction was filed.” If the project is suspended or halted the majority of the work force would be laid off in a bad economy with construction down.

 

Ames mobilized a fleet of scrapers, 8 haul mine trucks, 6 to 8 loaders all of which are on site. Some of the equipment would go back to rental agencies while others might be sold in a bad market for heavy equipment.

 

Ames has expended $1.5 million on site and has $6.5 million in purchase orders waiting for shipping instructions.

 

Flynn asked if Barrick informed Ames the project would be challenged. Harvey said, “Yes.” Flynn asked what steps were taken “to protect the company’s well-being?”

 

Harvey said they “could do nothing to protect” themselves.

 

Richard Katsma of the Lamoille Construction Company specializing in Civil Engineering has $9.3 million in contracts and 60 to 70 employees involved including some Western Shoshone.  The Company has 30 to 35 pieces of equipment on site worth $800,000 to $1 million per piece and Barrick is not paying stand-by costs. The cost to Lamoille Construction is $330,000 per month. If Cortez Hills doesn’t proceed, with debt the company will “survive 45 days and then liquidate.”

 

Katsma acknowledged Barrick told the company the project would be challenged and still signed contracts a month before the project was approved by the BLM.

 

Barrick also presented depositions from Ruby Mountain Construction of Elko and Dean Conley of Conley Enterprises which has a subcontract to erect fence around the project worth $560,000 and is “stretching to keep employees on roll.” Spencer Porter of Spring Creek’s Pole Line Contractors has power line contracts worth $2.5 million and said a preliminary injunction would be devastating.

 

Dr. John Dolbert of UNR Reno quantified and determined the direct economic impacts if the project is delayed 1 or 2 years during the construction phase including taxes, employee compensation and the cost of delay. Dolbert looked at state and local taxes as well as areas where the community benefits from activities at the Cortez Hills site.

 

Dolbert took the flows of Barrick expenditures based on “the net present value of today then shifted out 1 year.” A 1 year construction delay according to Dolbert would involve $2.6 million for construction loss; $5.9 million in lost taxes and $50.8 million in compensation for a 1 year total of $59.3 “loss to the community, not Barrick.” A two year delay would be “a little more than doubled.”

 

Michaek Alastuey, Director of Public Policy and Analysis with Applied Analysis quantified economic impacts to state and local government, isolating major taxes with net proceeds at 5% and including sales and use taxes as well as real and personal property tax and modified business or payroll tax.  A 6 month delay would have a $14.7 million impact on “all sources and entities” with a disproportionate impact on Lander County.  Alastuey predicted $31.5 million in 1 year losses to State and local government and of $46.2 million after 24 months.

 

Finally Gerald “Jerry” Marvin Smith, District Manager of the Battle Mountain BLM took the stand.

 

Smith said he and his staff examined the RFRA issues associated with the project and discussed whether there would be a burden to the exercise of religion and if the burden would be substantial and that no individuals would be forced to act contrary to their beliefs. It remains Smith’s conclusion that the Final EIS and Record of Decision comply with RFRA, FLPMA and other challenged regulatory requirements.

 

Flynn asked Smith how many mining Plan of Operations were approved under his watch and Smith said in 13 years, 8 major EIS POA’s were approved and over 150 POA’s associated with EA’s. He noted POA’s could be for exploration.

 

When asked how many were rejected, Smith couldn’t think of any.

 

Friday morning, Flynn began his closing argument first. “This case is about one big mine, very destructive mine and about one special, and very unique and important place;” a “place so important that people travel 100s of miles to pray to their Creator.” While Tenabo “may not be special to all Western Shoshone people it is special to many.”

 

Flynn maintained the mine would cause “irreparable and permanent damage” with the “2,000 foot deep hole in the body of Mt. Tenabo” and a “lake in the pit [that] will violate water quality.” Shoshone people said Flynn will be prevented from returning to the area for prayer and dewatering Tenabo “will kill the mountain, drain its blood, remove its spirit, remove its power.”

 

Flynn said, “This case is about money, billions of dollars of profit for Barrick,” the world’s largest mining company and Flynn acknowledged the economic benefit to Nevada. “In troubled times,” said Flynn, “we must hold onto the values and beliefs that rise above and come to the forefront when we have national troubles.” Flynn cited the belief that “every American’s beliefs should be protected under the law” and that “it’s the rule of law that people have the right to challenge and stop illegal government actions” and claimed “BLM has violated the law.”

 

Flynn said, “The BLM never denied in the region” so “why would they start now?” Flynn reiterated the charge that BLM had violated FLPMA’s requirements and has the obligation to disapprove the undue and unnecessary degradation to public land caused by a 2000 foot mine pit. 

 

After reiterating what he saw as the BLM’s violations, Flynn said, “Economic interests don’t outweigh the law.” Regarding massive harms to Barrick, Flynn said as of 2008 Barrick has 124 million ounces of gold in reserve world-wide while this project has 8 million ounces, “5% of Barrick’s reserves.” Flynn sympathizes with the contractors who signed before the project was approved and characterized Barrick as having made a “calculated business decision” knowing “this would be challenged. Rush, rush, rush and then argue everybody gets laid off.”

 

Flynn characterized the Mt. Tenabo mine as “one place the BLM should have denied.”

 

Costello for the BLM argued Flynn failed to establish the RFRA claim and noted access will remain to Horse Canyon, Arctic Canyon, the White Cliffs and cultural resources sites. Federal land use “does not satisfy 100% of the people all the time,” said Costello and cannot “satisfy every citizen’s needs and desires.”

 

Justice Department Attorney Dawn Fitzgerald argued that the BLM properly applied all government regulations and requirements including FLPMA and air quality standards. Fitzgerald said the BLM spent significant time and energy in analyzing and did appropriate consultation reflected by several volumes of data and analysis in the EIS.

 

Fitzgerald took issue with Flynn’s notion that “BLM never disapproved a mine in this area.” What “was not elicited was whether BLM has not changed or modified” plans of operation. “The idea that BLM just rubber stamps is not true.”

 

Wikstrom in the closing argument for Barrick said “among many disputed issues” every “witness, plaintiff or defendant” agreed that “no one speaks for all the Western Shoshone” and argued that the evidence does not satisfy RFRA. Wikstrom said, “Even if the ability of Indians to practice in that area were completely destroyed,” that is “not sufficient burden” as witnesses conceded they “wouldn’t be coerced or engage in practices against their religion” despite “noise, dust and other things” that cause a “subjective diminution of religious experience.”

 

Wikstrom noted Tenabo is being presented as a “pristine mountain used solely for religious purposes” while it is “one of the most extensively mined mountains in Nevada” with “mining the dominant use of the area for 145 years.” Wikstrom described the mountain as “swiss cheese with 25 miles of underground workings” and reiterated that there had been no “evidence up until recent years that Western Shoshone asserted” the mountain “had religious uses being interfered with;” and reminded the Court that when Bill Wilson “lived there during the 60s to 80s, saw no Western Shoshone out there or claimed he was appropriating their sacred waters.”

 

To Flynn’s suggestion that the economic distress is “basically a self-inflicted wound Barrick took in a calculated move,” Wickman responded that Barrick expected the permit would issue because the company had “complied with the law, dotted every ‘i’ and crossed every ‘t’.” Entering into contracts was necessitated by “long lead times to order special equipment” and with “everything time critical” the Company had “to move.”

 

Stopping the project will bring “devastating harm to Northern Nevada and all of Nevada,” said Wikstrom as he asked the Court to allow the project to proceed.

 

Flynn countered that they are not “making this up” and that Tenabo has unique significance to Western Shoshone and that “illegal government action should be violated and stopped.”

 

Hicks heard testimony from 9: a.m. Tuesday until adjourning at 12:15 on Friday, January 23rd.

 

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.

 

Said Worthington, “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.”

 

 

 

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Shoshone Indians Sue to Stop Barrick's Nevada Gold Mine

By Lisa J. Wolf

 

CRESCENT VALLEY, Nevada, November 24, 2008 (ENS) - Five tribal and public interest parties filed a lawsuit in Nevada Federal Court on Thursday, seeking an immediate injunction to stop one of the largest open pit cyanide heap leach gold mines in the United States - the Cortez Hills Expansion Project on Mt. Tenabo.

 

Canadian Barrick Gold, the world's largest gold mining company, plans to construct and operate the mine in an area that the lawsuit states is "located entirely within the territory of the Western Shoshone Nation."

 

The permit was granted on November 12, and the $500 million mine construction project could begin as early as this week

 

"After years of determined opposition from Western Shoshone, the U.S. Department of Interior, through its Bureau of Land Management approved one of the largest open pit cyanide heap leach gold mines in the United States on the flank of Mount Tenabo," the plaintiffs said in a joint statement.

 

They described the area as "well-known for its spiritual and cultural importance to the Western Shoshone" and "home to local Shoshone creation stories, spirit life, medicinal, food and ceremonial plants and items" which "continues to be used to this day by Shoshone for spiritual and cultural practices."

 

The plaintiff groups are - the South Fork Band Council of Western Shoshone of Nevada, the Timbisha Shoshone Tribe, the Western Shoshone Defense Project, Great Basin Mine Watch and the nonprofit Western Mining Action Project, which provides free legal services for citizen groups and Native American tribes on hardrock mining issues in the Western U.S. and Alaska. They are asking that the mining permit be revoked.

 

Kathleen Holly says, "I visit Mt. Tenabo to pray to the Creator and to the life force of the world that resides in the mountain."

 

"The proposed Cortez Hills mine pit, along with its waste dumps and other mining facilities would be located right where I go to pray," Holly says. "BLM is wrong to limit the importance of Mt. Tenabo to Western Shoshone people to just the top of the mountain," which is owned by Barrick.

 

The Shoshone maintain that Mt. Tenabo and its environs are part of the ancestral land of the Western Shoshone, which has never been legally ceded to the federal government. Nevertheless, U.S. politicians and multinational corporations ignore the 1863 treaty between the U.S. government and the Western Shoshone, treating sacred land as a public resource to be mined for gold, the tribe says.

 

Barrick's Director of External Communications Louis Schack declined to comment on the lawsuit.

 

Gerald Smith, director of the BLM Battle Mountain Field Office, who along with the Department of the Interior and BLM is named in the suit, said Friday, "We complied with all the laws of Congress" and said he believes "all the actions are in compliance with the regulations we have to operate under."

 

Smith said, "We did appropriate consultation," and stated, "We've done, I think, a very outstanding and thorough job in issuing the best decision we can."

 

Smith says he knew there was going to be a court challenge once the project was approved. "There's a difference in opinion and we'll proceed from there," he said.

 

"This is a vitally important achievement for Barrick and for the communities where we do business in Nevada," said Greg Lang, president of Barrick's North America region. "The Cortez Hills project creates new economic development and job opportunities in rural Nevada at a time when other industry projects in Nevada are being shelved and jobs are being lost."

 

The Cortez property is expected to begin producing in the first half of 2010, with average annual production increasing to about 1.0 million ounces of gold for each of the first full five years of production.

 

There is a division of opinion also within the Shoshone tribal group over the gold mine.

 

Barrick recently signed a Collaborative Agreement with leaders of several Western Shoshone communities in Nevada to work together in partnership to improve education, business and employment opportunities for the Western Shoshone, enhance awareness of Native culture and to build greater mutual understanding.

 

The agreement establishes a Western Shoshone Educational Legacy Fund tied directly to revenues from the Cortez Hills mine. The Fund is expected to provide financial support for generations of Western Shoshone seeking higher education.

 

Lang said on November 12, "The Cortez Hills Project has been the object of criticism from activists who oppose mining and support failed claims of Native American title to much of Nevada's public lands. These groups are threatening litigation against the BLM's approval of the Cortez Hills EIS. The company will vigorously and expeditiously oppose any challenge."

 

The planned open pit mine on Mt. Tenabo will cover over 900 acres to a depth of 2,000 feet. New waste disposal and processing facilities are planned, including a cyanide heap-leaching facility, consisting of 1,577 million tons of waste rock, 53 million tons of tailings material, and 112 million tons of spent heap leach material.

 

The mine through an extensive groundwater pumping system will dewater Mt. Tenabo and "permanently destroy approximately 6,800 acres of land on and around Mt. Tenabo, over 90 percent of which is classified as federal 'public' land."

 

Larson Bill, vice-chairman of the South Fork Band Council, asks, "How are we, as a nation, showing our values, if we allow a transnational corporation to destroy this ‘church' for all time, just to get 10 years worth of gold."

 

Bill said that while Barrick has tried "to cloud the real issues with gifts and money, we continue to oppose this project."

 

"They have not bought our people, the traditions nor the lands of the Shoshone," he said.

 

Carrie Dann of the Western Shoshone Defense Project, a recipient of the prestigious Right Livelihood Award, warned, "This mine will drain the water from Mount Tenabo" and will suck "the water out of the mountain forever."

 

Dann characterizes the "destruction of the water" as "destruction of the blood of the earth" which entails "destroying life of the earth and the people and the wildlife that depend on it. Dewatering is taking the life of future generations."

 

Julie Cavanaugh-Bill of the Western Shoshone Defense Project said, "The question that the courts and the people of this country need to ask themselves is will we continue to tolerate these violations against the First People of this land or will we finally turn the tide of injustice and protect these sacred areas?"

 

Dan Randolph, executive director of Great Basin Resource Watch, said, "This is an example of how the Bush administration is rushing to protect their corporate friends in their last few months of power" as the "BLM denied requests to extend the comment period on the EIS not only from us, but also from several Western Shoshone tribal governments."

 

Randolph believes "Barrick will begin work on the mine as soon as they can, to cause enough harm in an attempt to make a religious rights argument moot, and the BLM and Bush administration appear to be more than willing to help them in every way possible."

 

The lawsuit claims the "Western Shoshone religious and cultural uses of the Mine site will be permanently eliminated."

 

The plaintiffs argue that "the BLM failed to adequately protect public and private resources, including the religious, cultural and environmental resources and uses at and around the Project site - the Trust Responsibility owed to Native Americans."

 

By failing in this protection, the governments have violated the Federal Land Policy and Management Act and the Religious Freedom Restoration Act, the plaintiff groups claim.

 

In addition, the lawsuit alleges the BLM "failed to fully evaluate the project's impacts as required by the National Environmental Policy Act.

 

The BLM acknowledged in its 2004 Ethnographic Report that the "entire Mountain and pediment area, not just the top, was part of a Native American Traditional Cultural Property."

 

Yet, the agency stated in its both in its final environmental impact statement, FEIS, and in its record of decsion that the "BLM knows of no Western Shoshone uses that would be prevented or uses or resources that would be destroyed by the proposed project."

 

But the plaintiff groups point out that the "FEIS predicts that at least 22 springs or seeps, and at least one perennial stream, will suffer the loss or complete elimination of their flows." They maintain that these are waters that "are sacred to Western Shoshone people and are an integral part of their exercise of their religion."

 

The plaintiffs also complain that the air pollution from the mine would violate legal standards when it comes to fine particle emissions. Health effects associated with exposure to PM25 fine particle emissions "include premature death, aggravation of heart and lung disease and asthma attacks," the point out.

 

They claim that the gold mine violates the BLM'S own Visual Resource Management requirements to identify and protect scenic values on public lands set forth under two different laws and particularly would "constitute a severe visual intrusion into Western Shoshone religious/ceremonial sites."

 

The plaintiffs point out to the court that the BLM received 14,631 individual comments in opposition to the project from people around the world.

 

The lawsuit mentions that the United Nations recently found the United States and BLM in violation of the Western Shoshone's rights "due to the ongoing and proposed Cortez/Barrick operations on Mt. Tenabo."

NAVAL HELICOPTER LANDS IN CRESCENT VALLEY, NEVADA
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NAVAL HELICOPTER CLEARS THE LEAVES IN CRESCENT VALLEY, NEVADA PARK

NAVY COPTER CREW WITH CRESCENT VALLEY YOUTH
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NSA Fallon Helicopter Crew come to see Crescent Valley Elementary School Youth

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Navy Helicopter Crew Shows Ben Moylan Rescue Idea
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Ben Moylan of Crescent Valley Demonstrated How to Be Rescued by the Naval Helicopter

Missa Wolf Gets to Check out the Naval Helicopter
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Missa Wolf of Crescent Valley, Nevada gets 'ride' in Naval Helicopter

Naval Helicopter Crew Honored Crescent Valley, NV
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Naval Helicopter Crew with photo of their visit to Crescent Valley, Nevada

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