Elko Daily Free Press 6-23-10

9th Circuit remands another Cortez case

ELKO - A new 9th Circuit Court of Appeals opinion states that the U.S. Bureau of Land Management failed to properly analyze cumulative impacts for a Cortez Hills, Pediment and Horse Canyon exploration plan.

The appeals panel is sending its decision back to the U.S. District Court in Reno six years after the BLM approved Barrick Cortez's plan and the Te-Moak Tribe, Western Shoshone Defense Project and Great Basin Resource Watch appealed the decision.

The 9th Circuit Court sided with the BLM and Barrick Cortez on the majority of plaintiff complaints in the appeal, but found the BLM's analysis of cumulative impacts "was insufficient and therefore violated" the National Environmental Policy Act.

"We don't expect this opinion to have any bearing on our current operations at Cortez Hills," said Lou Schack, director of communications and community affairs for Barrick Gold of North America.

Barrick is mining at Cortez Hills in Lander County while the BLM prepares a draft supplemental environmental impact statement on specific areas of concern the 9th Circuit cited in a separate appeal.

"We're still assessing the remand order and the analysis of cumulative impacts. The cumulative impacts referenced in the opinion were assessed in great detail in the Cortez Hills EIS, which was approved in 2008," Schack said.

The latest decision is over an amended environmental assessment for exploration in the Cortez Hills, Pediment and Horse Canyon areas.

"We're glad the courts at least realize the inadequacy of NEPA. With Cortez Hills, that is two cases where the NEPA process was not fulfilled," John Hadder, executive director of Great Basin Resource Watch, said Tuesday.

He said the 9th Circuit opinions in both cases show "there clearly needs to be more complete analysis up front."

Hadder said the impact to Cortez operations from the decision on the exploration assessment will depend on the U.S. District Court, but he believes because "it's a matter of fulfilling NEPA requirements, the decision on the EA also gets thrown out. They have to satisfy all the boxes."

"We won the district court appeal, and it has been in the 9th Circuit for years now," said Gerald Smith, manager of the BLM's Battle Mountain District.

He said the amended document in question looked at more than 30,000 acres in the Battle Mountain and Elko BLM districts, and there was a thorough analysis that spelled out a "great deal of criteria" for Cortez to follow for exploration.

"It's worked just fine for us," Smith said.

The amended document added 200 acres of proposed disturbance to 50 acres previously approved for exploration, while the study encompassed the wider area of Horse Canyon, Cortez Hills and Pediment.

Smith said the Reno court may require BLM to do something different, and "we will follow the court's direction and continue on."

The BLM approved the exploration plan before Barrick envisioned as big a mine as Cortez Hills, which has been in production all of this year. Cortez Hills and the Pipeline operations combined make up the Cortez Mine, which Barrick expects will produce more than 1 million ounces of gold this year.

Although the appeals court remanded the cumulative impacts issue back to the U.S. District Court, Barrick is "pleased with many of the conclusions reached by the 9th Circuit," Schack said.

"The BLM and Barrick Cortez have again prevailed on a broad set of issues that support continuing exploration in Nevada and elsewhere. The 9th Circuit clearly disagreed with or rejected many of the plaintiffs' arguments, often using very strong language, which is very reassuring," he said.

The same plaintiffs in the exploration plan appeal, plus the Timbisha Tribe of Western Shoshone, appealed the BLM's 2008 decision on the Cortez Hills mining plans.

The 9th Circuit ordered the Reno court to provide injunctive relief in that case, which resulted in U.S. District Judge Larry Hicks approving a modified injunction for the analysis of specific issues.

That injunction allows Barrick to mine at Cortez Hills while the BLM is working on the supplemental statement on mine dewatering, transport of ore by truck to Barrick's Goldstrike Mine north of Carlin, and particulate emissions.

Hadder said in the exploration plan appeal, the plaintiffs didn't ask for an injunction, but they did in the case of Barrick's plans to mine at Cortez Hills, so the appeals court acted quicker on that project than on the exploration EA.

Still, he said when the court takes so long to issue a decision, "it undermines the meaning of the process."

In the 9th Circuit opinion issued last Friday on the BLM's exploration EA for Cortez Hills and Horse Canyon, the appeal judges denied the plaintiffs' contentions that the agency violated the National Historic Preservation Act and the Federal Land Policy and Management Act.

For example, the opinion concludes the BLM didn't violate its obligation to consult with the Te-Moak Tribe and that the BLM didn't violate FLPMA because the EA states that once Cortez provides maps with specific drill sites, "the BLM must take affirmative steps to evaluate cultural resources in the area and to protect those resources through avoidance measures."