Court agrees to reconsider mine tunnel

Question still remains whether tunnel is mining or prospecting

After a recent court ruling, the controversy will continue over a three-quarter-mile-long tunnel that proponents of a molybdenum mine on Mt. Emmons are seeking to build.



On Thursday, June 4, Denver district court judge Norman Haglund issued a preliminary ruling in a legal dispute over the tunnel. The legal challenge was initiated by local conservation group High Country Citizens Alliance.
HCCA brought the issue to Denver district court in an appeal last summer, following a denial by the Colorado Mined Land Reclamation Board to reconsider a decision that classified the tunnel as prospecting, rather than mining.
According to the Colorado Mined Land Reclamation Act, prospecting activities do not require public review and are kept confidential. In contrast, mining activity or mine “development” is subject to public review.
HCCA cited a lack of due process and public involvement in the approval of what they claimed was actually a mine development that would provide a major role in future mine operations. They argued the size of the tunnel and potential infiltration of toxins from mine tailings and old mine workings could damage the watershed. “We challenged that this was way past prospecting,” says Roger Flynn, an attorney for Western Mining Action Project, the group representing HCCA in court.
U.S. Energy received an approval for the tunnel from the state Division of Reclamation, Mining and Safety on January 3, 2008.
The company said the tunnel was intended to provide a safe access to historic portions of the Keystone Mine, allowing engineers on the Lucky Jack Project (now called the Mt. Emmons Project) to conduct core samples as part of a pre-feasibility study.
U.S. Energy filed a notice of intent to conduct prospecting with Gunnison County on February 8, 2008.
That was followed by a public press release describing the activity on February 14, at which time HCCA obtained the state approval letter through the Colorado Open Records Act. On March 3, 2008, HCCA made a request for the Colorado Mined Land Reclamation Board, the group that hears appeals of the division’s decisions, to reconsider the approval of the tunnel.
HCCA interim executive director Dan Morse says somewhere, somehow, the public has to have the opportunity to discuss projects like the proposed tunnel. “There’s a gaping hole in the state logic. At the given moment, some staff member in an office in Denver could approve something that a company requests without much oversight,” Morse says.
U.S. Energy asked the Mined Land Reclamation Board to dismiss the appeal, citing a lack of authority by the board and the public to challenge prospecting decisions.
The board ultimately dismissed HCCA’s request on June 11, 2008, but stated that either party could appeal to the Denver District Court within 30 days.
HCCA appealed the decision, and now a year later has seen a favorable outcome in the judge’s preliminary decision. The judge rejected all requests by the state and U.S. Energy to dismiss HCCA’s claims.
There is still a way to go before the matter is solved, however.
Flynn says, “The issue before the court was not the actual merits of the decision whether it was prospecting or development.” Flynn says HCCA, the state attorney and the mining proponents must now schedule a series of briefings on the merits of the case. “That’s when we’ll present the arguments why the state was wrong,” Flynn says. He expects the briefings to be scheduled during the coming months. Following the briefings, the judge may issue a final order, or remand the decision back to the Mined Land Reclamation Board.
Mt. Emmons Project community liaison Perry Anderson declined comment since the suit is ongoing.

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