Legislative and Regulatory Update
February 2005 by Staff• Court says ESA listing bogus
The Pacific Legal Foundation announced they were successful in their lawsuit against the federal government regarding the listing of Coho salmon under the Endangered Species Act (ESA) in the Klamath River Basin.
Judge Michael Hogan agreed with the Pacific Legal Foundation that the government violated the ESA when it failed to consider hatchery fish when deciding whether or not to list Coho salmon as endangered in northern California and southern Oregon rivers.
You may remember that farmers in the Klamath Basin were devastated when the federal government cut off their water supply in early 2001.
“This victory came too late for the farmers who where pushed into bankruptcy and the businesses that were forced to close to protect fish that were never endangered,” said Pacific Legal Foundation attorney Russ Brooks. “Our rivers and streams are teeming with salmon, yet the Klamath community was practically destroyed because of environmental politics run amok.”
The case, Grange v. National Marine Fisheries Service, had been stayed by Judge Hogan pending environmentalists’ attempts to appeal PLF’s landmark victory in Alsea Valley Alliance v. Evans (2001). In that case, Judge Hogan held that the government had illegally listed Coho along the Oregon coast as threatened when it excluded hatchery Coho from fish counts. The Ninth Circuit Court of Appeals rejected the appeal in February, 2004.
In this ruling, however, Judge Hogan did not set aside the illegal listing, but left it in place while the agency completes the review of 26 west coast salmon listings, which it agreed to undertake as a result of its loss in Alsea. In June, 2004, NOAA proposed a new hatchery policy, but simultaneously announced that it would result
in the relisting—not delisting—of west coast salmon and steelhead populations.
However, Judge Hogan also indicated that if a federal agency took a specific enforcement action on behalf of the illegal listing which caused harm, those harmed could go to court and ask to have the federal action stopped.
“In other words, as long as the federal government complies with Judge Hogan’s ruling that the listing is illegal, there won’t be a problem. But if they try to cut off the water again or take some other similar action, we’ll be back in court,” Brooks said.
In November, 2004, PLF announced it will file a sweeping lawsuit challenging all 26 listings if NOAA enacts the proposed policy and continues to distinguish between hatchery and naturally spawned fish. The final rule is scheduled to be published in June, 2005.
Visit www.pacificlegal.org for more information.
• Comments needed for Idaho project
Comments are needed on Desert Mineral Mining’s plans to operate a gold mine 20 miles south of Boise, Idaho. The public comment period has been extended to February 4, 2005.
The company plans to utilize a closed cyanide processing system housed in a building to process approximately 120,000 tons of ore per year. Even more valuable than the gold may be the organic fertilizer the company plans to produce from the tailings.
More information can be found by visiting www.deq.state.id.us and clicking on the Public Info & Input tab. Click on Public Comment Opportunities, then scroll down to the draft mining permit. You can also reach the Idaho Dept. of Environmental Quality by phone at (208) 373-0502.
Comments can be mailed to Department of Environmental Quality, Waste Management and Remediation Division, 1410 N. Hilton, Boise, ID 83706; faxed to (208) 373-0154; or emailed to email@example.com
Company president Dan Terzo said he expects to employ 20 at the operation once it gets underway.
• Crown Resources finally receives patents
The Bureau of Land Management (BLM) has issued mining patents to Crown Resources. The company wants to build a gold mine on Washington’s Buckhorn Mountain, a move backers hope will give the project a long-awaited boost.
BLM Director Kathleen Clarke issued the mining patents on December 21 after 12 years of review.
Crown Resources, based in Denver, wants to dig a 1.2 million-ounce gold deposit from Buckhorn Mountain, near the Canadian border in northern Okanogan County.
“We’re really hoping the agencies will view this as an opportunity to expedite the process,” said Clyde Gillespie, project manager for Kinross Gold, a Toronto-based company that is acquiring Crown Resources.
Kinross hopes to receive necessary environmental permits soon and begin construction in late 2005, he said.
The state Department of Ecology and US Forest Service are preparing a revised environmental impact statement for the proposed mine.
The recent deal transfers ownership of about 154 acres of Okanogan National Forest land to Crown Resources.
Mine opponents contend the BLM actions are a giveaway of public land that allows the company to remove the gold without paying royalties.
“It means that there’s less land in the public domain, and a half a billion dollars worth of gold gets given away for no return,” said Dave Kliegman, director of the Okanogan Highlands Alliance.
Opponents obviously do not consider the benefits of millions of dollars collected by state and federal agencies in fees and permits, and employment and sales taxes generated from high paying jobs the mine will create.
Kliegman said it was not clear whether his group can appeal the BLM’s decision.
The planned underground mine replaces a proposed open-pit mine project that collapsed in 2001 after failing to secure state and federal operating permits. Crown Resources and partners had spent 11 years and an estimated $60 million trying to open the Crown Jewel Mine.
Crown Resources last year submitted a revised plan scrapping the open pit and moving ore processing off-site. Instead, ore will be trucked for processing to a Kinross mill at Republic.
The project will support about 190 jobs at the mine and mill, Gillespie said. Many of the mining jobs will be offered to current Kinross employees, he said.
A BLM news release about the mining patents stated that under the 1872 Mining Law, the BLM director is obligated to issue a mining patent if the applicant has met the requirements.
Brenda Lincoln, a BLM spokeswoman in Portland, Oregon, said Crown Resources paid a total of $24,969 for the 154 acres, including public notification and land surveys.
Congress placed a moratorium on the processing of mineral patents in 1994. Crown Resources’ 1992 patent applications weren’t subject to the moratorium.
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