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 23^rd.

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.”