Environmental Case Law Case Study

BLm - Bureau of Land Management

Environmental Impact Statement

FLPMA - Federal Land Policy Management Act

NEPA - National Environmental Policy Act

RFRA - Religious Freedom Restoration Act

Environmental Justice Case of South Fork Band Council of Western Shoshone of Nevada v. U.S. Department of Interior

Detailed background history of the case

The subject refers to a prospective gold-mining project in the Western Shoshone sacred site of the Cortez Mining District, situated in Lander County, Nevada, near Mt. Tenabo. With gold mining an important industry since 1950, in Lander County, and the identification of two new gold sources near the existing Cortez Mine, Cortez proposed an elaborate 850 acre additional mining facility, which would involve Cyanide heap-leach processing and de-watering of ground water to prevent the mines from getting flooded. The total additional acreage concerned were 6,571 acres of public land and 221 acres belonging to Cortez (FindLaw, n.d.).

When this proposal reached BLM, they decided that, this being a Federal action, NEPA would require and EIS report prepared, which would also be subject to FLPMA. Consequent upon publishing the intent to prepare an EIS, in December 2005, BLM went about the process meticulously, by involving the South Fork and other local tribes. An evaluation was evolved on October 5th, 2007 after considering the impact of this action on the various aspects of Geology, vegetation, soils, American values, recreation, social and economic values, noise levels and hazardous materials. Further they also overtook the responsibility to obtain public comments on the draft EIS and a fourth alternative called "Revised Cortez Hills Pit Design Alternative," proposing to scale down the options and address effectively all concerns about environmental protection (FindLaw, n.d.).

On November 20th 2008, the tribes filed a complaint against the department of Interior and BLM in Nevada and asking for an injunction against allowing the Cortez proposal. However, on February 3, 2009 the application for injunction was refused. The tribes filed an appeal on February 6, 2009 of the court denied the stay, pending appeal (FindLaw, n.d.).

B. Identification of the environmental law or policy cited in the case

The district court has considered the claims brought by the tribes under the RFRA or the Religious Freedom Restoration Act. The tribes claimed violation of Federal Land Policy Management Act (FLPMA), 43 U.S.C. § 1701 et seq., and the NEPA (National Environmental Policy Act), 42 U.S.C. § 4321 et seq., to determine the possibility of issuing an injunction to the tribes. However, the court felt that they had little option in view of the Supreme Court Judgment in the matter of Winter vs. Natural Res. Def. Council, 129 S. Ct. 365 (2008) on a similar case. The court felt that the tribes had not proven beyond doubt that they will be liable to irreparable harm in the event of a denial of an injunction. The tribes were left with no other alternative but to prove that BLM's action was contrary to law (FindLaw, n.d.).

C. Identification of the scope and specific requirements of the law in the case

The court had patiently gone through the application for injunction filed by the tribes on the grounds that their religious values were being restricted, as part of the Cortez project would encompass their areas of prayer. The court sought to deny the application of the tribes claiming that the two-year research on the subject, conducted by BLM, with the emerging detailed EIS reports, were considered by the court as exhaustive and relevant. The courts also considered the personal opinion of other tribes in the region. The court concluded that the tribes have not satisfied the burden of success in the FLPMA claims, and they also denied injunctive relief on the injunctive claims of the tribes on NEPA. The tribes went on appeal on the subject. The appeals court also did not give any relief to the tribes as they said that they have not proven irreparable harm in terms of FLPMA and that the Government would take care of the environment aspects in the interest of the public in general in consultation with NEPA (FindLaw, n.d.).

D. Description of the position and arguments of the plaintiff(s)

The plaintiff, in this case, the South Fork Band Council of Western Shoshone of Nevada made several arguments in favor of an injunction against permitting mining activity. Some of the major positions and arguments resorted to by the tribe's argument are given below (FindLaw, n.d.):

1) The tribes claim that NEPA has been violated by BLM with regard to the percentage of Mercury that would be made available as hazardous chemicals during the transportation of the millions of tons of refractory ore over, a distance of 70 miles by conveyors, to Cortez's processing plant at Goldstrike.The shipments were programmed twice a day for the next 10 years. The tribes argued that the impact of Mercury in the air from the open transportation of hazardous wastes over long distances was too dangerous. BLM, however, took refuge under the permitted levels of toxic levels under the clean-air act.

2) The tribes claimed that even if BLM claimed that will be no increase in the volume hazardous waste, they have failed to consider that the expansion of mine will result in such transportation for the next 10 years, causing the painful release of toxic wastes over a prolonged period. What would be the impact on the people in the area?

3) The plaintiff argued that BLM had not even taken into consideration the year-to-year basis of the environmental impact resulting from transportation because they might have been blinded by the fact that the processing is done 70 miles away.

4) The tribes also found fault with the mitigation analysis carried out by BLM on the consequences of mine de-watering, which could lead to several underground streams drying up, depriving the terrain of precious ground water.

E. Description of the position and arguments of the defendant(s)

Several arguments were made by the defendants (FindLaw, n.d.):

1) On the subject of Mercury levels, Cortez and his lawyers, that the impact of mercury has been clearly discussed in the EIS. They produce details of total emissions from their gold mines as a fraction of the low emissions at the state level and site a map in substantiation of this argument.

2) Cortez's arguments about de-watering of groundwater do not find much acceptance with NEPA who insists on a solution to the possibility of drying up of the water resources.

3) Cortez argues that the groundwater situation can be tackled when it arises, but NEPA requires that hard study be undertaken before any decision on environmentally harmful actions are made effective.

F. Description of the final decision of the judge and the justification for the decision

The court is seized with the application filed by South Fork Band Council of Western Shoshone of Nevada against BLMs considered verdict to continue to allow Cortez group of mining companies to conduct their mining activities in the additional area of about 6700 acres. The tribes' objections on the basis of BLM's contradiction of Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb-2000bb-4 as well as the provisions of NEPA were considered deeply by the court who heard the argument of both sides in this regard and also perused documents like the EIS report prepared by BLM. The court, however, refused to stay the progress of the project on the contention that the tribes have not proven beyond the satisfactory doubt that irreparable harm would come to them on permission to operate the project and that their religious rights were being influenced upon. The court also considered in detail the tribes' contention that over a long 10-year period of the lease, a great amount of toxic waste like Mercury would find them in the atmosphere. The third point was that de-watering processes employed by the Cortez mining company would drastically affect the groundwater levels, causing several hundred springs to dry up, thus leading to human suffering over the years (FindLaw, n.d.).

1) The judges took full stock of the situation, evidence, cross examinations and the EIS report to finally arrive at a conclusion that they did not feel that the tribes had proven beyond doubt that they will suffer a harmful effect if the mining continued.

2) On the matter of problems relating to NEPA, the judges concluded that it was best to leave the matters to NEPA to solve.

G. Statement of whether you agree or disagree with the decision (support your response with specific legal examples and information you found in your research)

Personally, I disagree with the judgment for the following reasons:

1) Consultation and coordination with the tribes: In 2000 November, by E.O. No. 13,175, President Clinton sought to emphasize the importance of consultation by the Federal Agents with the tribals before enacting any regulation that would have an impact on their lives. Again, in November 2009, President Obama signed this E.O. into legislation (Akilah, 2011). Considering the aforementioned points, I am of….....