Groups review fallout of court decision on Crested Butte mine

By JUDITH KOHLER

Associated Press Writer

DENVER—Saying the public's right to hold federal agencies accountable is threatened, activists and local officials are pondering their next step after a federal appeals court shot down their challenge of selling public land for a mine atop a western Colorado mountain.

A ruling issued by the 10th U.S. Circuit Court of Appeals Monday upheld a lower court's finding that third parties can't legally challenge mining patents—essentially deeds—on public lands. Town and county officials and residents have been fighting for nearly 30 years to stop a molybdenum mine on the summit of Mount Emmons, which towers over the ski community of Crested Butte.

The ruling could affect similar claims throughout the West and silence the public's voice on an important public-lands issue, said Jeff Parsons, senior attorney with the Western Mining Action Project, which is helping represent Crested Butte, Gunnison County and the High Country Citizens Alliance.

"Based on this decision, there's no accountability to the public on the issuance of (mining) patents," Parsons said.

The plaintiffs argued that the U.S Bureau of Land Management violated the law when it sold the 155 acres on the 12,329-foot peak for $875 in 2004. They said the BLM shouldn't have sold the land because the Phelps Dodge Corp., couldn't show that the mine would be profitable as required by an 1872 mining law.

A three-judge panel of the appeals court sided with an earlier ruling that said only people with a competing claim to ownership of the land can sue. The panel refused to reinstate the lawsuit.

A strong dissent by one of the judges, though, has buoyed Parsons' hopes that the case could get another hearing. Judge Mary Breck Briscoe wrote in a separate opinion that the 1872 law allows third parties to participate by protesting and that the government bears a heavy burden in showing why those parties are prevented from suing.

Parsons said all the attorneys are considering whether to request a hearing before the full court.

"From a public policy perspective, it's really going to mean the public is cut out of these kinds of challenges," University of Colorado law professor Mark Squillace said of the decision.

He called the majority opinion "a rare situation" because of courts' tendency to allow lawsuits over agency decisions under the 1946 Administrative Procedures Act, which gave the public the right to sue the federal government unless blocked by another law.

The ruling deals only with the region covered by the 10th Circuit _ Colorado, Wyoming, Utah, New Mexico, Kansas, Oklahoma and the parts of Yellowstone National Park that extend into Montana and Idaho. But government officials might argue that it should apply across the country, affecting similar pending cases in the West, said Squillace, director of CU's Natural Resources Law Center.

Crested Butte Mayor Alan Bernholtz said town officials have talked to their attorney and there's interest in continuing the battle, although no decision has been made.

"Our town is built on tourism and environmental values," Bernholtz said. "That's why we've been fighting for the last 30 years."

Mount Emmons is called the Red Lady by locals because of the color of the rocks and is a crucial part of the community, said Wendy McDermott, executive director of the High Country Citizens Alliance.

"This mountain is our skyline. It overlooks the town of Crested Butte," McDermott said.

A mine would mar not only the view but could endanger the town's water supply, which streams from the mountain, she added.

Keith Larsen, chief executive of U.S. Energy Corp. in Riverton, Wyo., said mining was the reason Crested Butte and other communities in the region started and he believes the town can revive that part of its history while maintaining the tourism that has kept the area going.

U.S. Energy was the original owner of mining claims on Mount Emmons and recently took the property back after Phoenix-based Phelps Dodge sued to force the transfer. In a 2003 court filing, Phelps Dodge said a mine there hasn't been economically feasible since the collapse of the molybdenum market in the 1980s.

Now, molybdenum is among the precious and industrial metals going for near-record high prices. Larsen said U.S. Energy hasn't decided whether to open a molybdenum mine on Mount Emmons, but is seriously considering it.

"We're not there trying to tear down a mountain. We would like to be as compatible as we can," Larsen said.

Larsen said while the deposits are close to the mountain's top, the facilities for an underground mine would be lower and likely out of view. He said he respects the community's concerns, but added that he and his brother, Mark Larsen, U.S. Energy president, also have responsibilities to its investors. He said the deposits in Mount Emmons represent "multi-billions of dollars."

Contact:

Jeffrey C. Parsons
Senior Attorney
Western Mining Action Project
P.O. Box 349
Lyons, CO 80540
303-823-5738
Fax 303-823-5732
wmap@igc.org