The Crested Butte News Serving the Gunnison Valley since 1999
The ruling is “flawed”
Three local groups that filed a water rights lawsuit associated with the proposed Mt. Emmons mine project lost round one in District Court and are now considering how to proceed to the next round.
District Court Judge Steven Patrick issued a ruling on November 23 dismissing a motion seeking the dismissal of water rights associated with the proposed mine. The High Country Citizens’ Alliance, the Crested Butte Land Trust and the Star Mountain Ranch Homeowner’s Association claimed that water rights for the mine should be dismissed on the basis that U.S. Energy Corp. had failed to file a plan for mining by an April 2010 deadline established in the company’s conditional water rights.
HCCA executive director Dan Morse said the organizations feel the judge’s ruling is “flawed.”
The groups opposing the water rights had argued that the correct deadline for submission of a mine plan was April 2010. The court found that the deadline for the filing of a mine plan is instead April 2013 based on interpretation of the water right decree and related legal proceedings. Morse said that in its ruling declaring that 2013 is the mine plan deadline, the court did not evaluate whether or not U.S. Energy had met requirements of its water rights with documents submitted to the U.S. Forest Service prior to April 2010.
“The Forest Service has been consistently clear that the 2010 deadline is the correct deadline,” Morse said. “So we feel Judge Patrick incorrectly interpreted that deadline. We are looking for recourse but we are not yet sure what form that will take.”
Morse said he thinks it is possible to appeal Patrick’s ruling through the courts but is not sure how that would be accomplished.
“We are deeply disappointed with this initial ruling from the water court,” Morse stated in a press release. “The court fundamentally misinterprets federal mining law and policy in coming to the incorrect conclusion that U.S. Energy has until 2013 to submit its mine plan. It is clear that U.S. Energy is required to have submitted a plan for mining by April 2010 and they failed to do so. That failure means that their water rights should be dismissed.
“We are evaluating all options available to us to ensure that their failure to develop a mine plan is thoroughly considered by the courts instead of skirting the issue by incorrectly interpreting this deadline,” he continued. “U.S. Energy simply cannot be allowed to continue to hold this conditional water right after failing to develop a mine plan.”
The water rights at issue in the case involve water that would be taken from Slate River and Carbon Creek as well as potential reservoir sites in the Carbon Creek, Ohio Creek and Elk Creek drainages.
Morse commented, “We are pursuing this case in order to protect river flows, riparian resources and other uses of these creeks. Water right holders in Colorado have certain obligations for the use of water and our motion to dismiss these rights was intended to ensure that state water law was properly applied.”
Ann Johnston, Crested Butte Land Trust executive director agreed. “The Slate River Valley contains a remarkable concentration of high quality wetlands, the protection of which is very important to our community. These wetlands provide habitat for birds, fish and mammals, as well as important water quality functions,” she said.
While the water court dismissed the opposition’s motion for summary judgment, Morse said the water rights case would continue with the possibility of an appeal of the recent ruling or further challenges related to U.S. Energy’s Corp.’s water rights.
