“No plan for actual mining has been developed…”
Led by a local conservation group, the Crested Butte Land Trust and a homeowner’s association have come together to file a motion in District Water Court asking for dismissal of conditional water rights held by U.S. Energy for the purpose of mining molybdenum from Mt. Emmons. High Country Citizens’ Alliance (HCCA), the Crested Butte Land Trust (CBLT) and Star Mountain Ranch Homeowner’s Association located up Ohio Creek all joined in the motion filed Wednesday, August 11 in Montrose.
The conditional water rights in question come from the Slate River and Carbon Creek. U.S. Energy Corp.’s conditional water rights associated with the Mt. Emmons Project include proposals to divert water from the Slate River at the confluence with Oh-Be-Joyful Creek near the end of the Lower Loop trail, as well as Carbon Creek. The water right also includes proposals to store water in reservoirs in the Elk Creek, Carbon Creek and Ohio Creek drainages.
The motion states that U.S. Energy failed to develop a plan for mining during a six-year period that ended on April 2, 2010. The motion asserts that materials submitted to the U.S. Forest Service in late March of this year fail to meet the obligations specified in the 2002 water right decree and therefore the water right must be dismissed.
HCCA executive director Dan Morse said, “Eight years ago the mining companies and other parties involved with this water right agreed that the mine proponents had a fixed period of time to establish their ability to put this water to beneficial use by developing and submitting a plan for mining. No plan for actual mining has been developed or submitted to the appropriate agencies. The plain and clear language in the water right documents requires that the right must now be dismissed.”
HCCA Water Program director Steve Glazer added, “Colorado water law does not allow water rights to be held indefinitely without reasonable progress towards the actual use of the water. That progress was defined in the provisions negotiated eight years ago and it simply has not been made.”
CBLT executive director Ann Johnston emphasized, “Because the Crested Butte Land Trust protects land for future generations, we have ongoing stewardship responsibilities for all of our properties. We are concerned about the quality and quantity of water available to the wetlands in the Slate River drainage.
Mt. Emmons Project director of community relations Perry Anderson said the company “normally does not comment on litigation.”
A conditional water right is a right obtained through the water court that fixes the priority of the water right with a date certain, even though the appropriation has yet to be completed. It gives the holder of that right time to complete the appropriation as long as they diligently pursue completion of the project. Every six years the court reviews what progress has been made toward completion of the project. Once the right has been perfected by use, the holder of the conditional right must then ask the court to make it an absolute water right.
HCCA anticipates water court review of the motion to dismiss the water right this fall. In the water court proceeding HCCA is represented by Western Resource Advocates, CBLT is represented by Petros & White and Star Mountain Ranch is represented by Starr and Associates.