Maintaining silence for quasi-judicial purposes
While a community-wide effort to keep a mine from opening on Mt. Emmons wages on, some citizens are concerned that two groups have been silent on the issue—the Crested Butte Town Council and the Gunnison County Commissioners.
However, officials say they’re bound to silence because of their roles as judges on any potential mining application.
Area resident Bert Phillips came before the Crested Butte Town Council during its regular meeting on Monday, March 3 to question what he perceived as the Council’s silence on the issue.
“I’m frustrated and angry about what is perceived to be a clamping down of our public officials mouths,” he said and continued, “We need leadership now… The only thing between us and this place changing radically is local government. I would really appreciate it if you come out of the woodwork.”
Phillips concluded his remarks by asking for a new town ordinance that would prohibit the transportation of hazardous materials on town streets, except for Highway 135, which is Sixth Street through town. He also asked that the Town’s protective watershed ordinance be amended to prohibit the storage of hazardous material in the town’s watershed.
Area resident David Charnack seconded the comments and asked town attorney John Belkin whether the Town Council can be more active. “Can they take a position on the mine?” he asked.
While noting that the conversation could not go on too long because it was taking place during the public comment period and wasn’t on the agenda, Belkin said Town Council members and mayor Alan Bernholtz could not take a position on the mine.
He explained that the Town Council will act as a permitting authority when Lucky Jack officials apply for their project under the town’s watershed ordinance.
Lucky Jack is owned and operated by Kobex Resources Ltd. and U.S. Energy Corp. The companies acquired more than 5,000 acres in mining patents on Mt. Emmons, known locally as Red Lady, and an accompanying water treatment plant as the result of a 2005 district court ruling.
Shortly after, the companies announced their intent to pursue a molybdenum mining project on Mt. Emmons, calling it the “Lucky Jack” project. Mt. Emmons is believed to hold one of the world’s largest deposits of molybdenum and is predicted to have 22 million tons of high-grade molybdenum ore and 220 million tons of low-grade molybdenum ore—more than the Henderson mine or Climax mine.
During the meeting, Belkin compared the situation to when a private citizen would go before a judge on criminal charges. If the judge had already expressed an opinion on the case, the citizen would rightfully feel the judge had already made a decision and could not ensure a fair trial, he said.
Because the Town Council will act as a “quasi-judicial” capacity when hearing the U.S. Energy/ Kobex’s application to build a mine in the watershed, the same is true. “The Town Council cannot take a position on this mine—period,” Belkin said.
After the meeting, town manager Susan Parker said she was frustrated by the perception that the Town has been silent on the mining issue. She said the town hasn’t taken a position on the Lucky Jack mine but it’s been working hard to ensure that the Town’s water will be protected and to change federal law that allowed transfer of the mining claims from public to private hands in the first place.
“What’s the more effective tactic? Laying in the street or changing legislation and building political support to change legislation to protect our community?” she asked. “I don’t understand the basis for the concern. We’ve done more in the last 18 months than this community has done (for years).”
The town hasn’t always had a regulatory authority over mining applications. During the first Red Lady fight in the 1970s, the Town Council and then-mayor W. Mitchell were able to freely protest mining plans. That changed when the town won the right to regulate projects outside its boundaries but within its watershed and gained its regulatory authority.
Parker pointed out that the Town was asked to testify before the U.S. Senate Committee on Energy and Resources in January on reforming the 1872 Mining Law. “When was the last time that this council stood before a Senate committee hearing?” Parker said. “People are looking to us about how they can protect their watershed and their way of life.” She said the Town Council has been very supportive of all the efforts.
Gunnison County manager Matthew Birnie said the county commissioners are in a very similar situation because of their potential review of a variety of permits that may be submitted by the Lucky Jack project.
“What folks often don’t understand is that commissioners are not just legislators who represent their constituents, but they also sit as judges,” he said. “It’s different from almost any other branch or level of government.”
In acting as judges, Birnie said, it’s important that the county commissioners don’t express any opinions on any potential projects governed by the county. “If they were to take an advocacy role, it would be very difficult for any decision they make to withstand an appeal,” he said. “It would be clear that there is a bias.”
The county is currently expecting an application from U.S. Energy/ Kobex for a new 3,600-foot tunnel, called a “drift” in mining parlance, which will be used to evaluate the mine’s economic viability. Gunnison County planning director Joanne Williams says she believes the new tunnel will spark county Land Use Resolution oversight, and she has met with Lucky Jack officials for a pre-application meeting.