District judge rules for Barrick in Cortez Hills case

A U.S. judge has ruled against a preliminary injunction that would have halted construction at Barrick Gold‘s (ABX-T, ABX-n) Cortez Hills project in eastern Nevada, disappointing plaintiffs who oppose the open-pit gold project at Mt. Tenabo, a mountain that is sacred to the Western Shoshone people.

The motion for a preliminary injunction was filed on the grounds that the construction of a gold mine at Mt. Tenabo would desecrate a sacred mountain, decrease the Shoshone’s spiritual fulfillment from practicing their religion there, and violates the Religious Freedom Act.

The plaintiffs included the Southfork Band Council of Western Shoshone, the Timbisha Shoshone tribe, Western Shoshone Defense Project and the Great Basin Resource Watch.

In his ruling, District Judge Larry Hicks conceded that the disputed area, including White Cliffs, the peak areas over Mt. Tenabo, Horse Canyon, and the pine forests within the Mill Canyon area “were all recognized and are still recognized today as areas of religious and spiritual importance to the Western Shoshone people.”

But he argued that the mining operation “will not affect the White Cliffs, will not affect the top of the mountain and will not affect the other areas that have religious significance.”

In addition Judge Hicks said that the mining operation would allow access to all of those areas for spiritual and religious practices, concluding that “there is not a substantial burden on the free exercise of religion.”

In other comments Hicks noted that the area had a rich 145-year mining history. “The court has absolutely no question that Mt. Tenabo was a very important mountain in the Western Shoshone religious experience during that time,” he said.

“But the fact is that the predominant activities in that area were mining in interest, that there were many hundreds if not thousands of miners and people who passed through that area and became involved in it in the practice of mining up until this very time.”

He also admitted that he had been “awestruck by the monetary implications of this mining operation.”

In a press release announcing the ruling, Barrick noted that two economic and taxation experts who testified at the hearing said delays at Cortez Hills “would cost county and state government and the school district millions of dollars in tax revenue at a time when government budgets are already in deficit.”

Greg Lang, president of Barrick Gold North America, noted in a statement that “as we watch the continuing economic turmoil in urban Nevada and elsewhere, we are fortunate to be able to provide hundreds of good jobs and the many other benefits this project brings to rural Nevada.”

The court has yet to have a full hearing on the lawsuit against the project on religious and environmental grounds.

Julie Cavanaugh, program director of land recognition for the Western Shoshone Defense Project in Crescent Valley, Nevada, said the group was “considering an appeal of the [injunction] ruling as the lawsuit proceeds.”

“We’re not saying ‘no mining’ but they have to mine in a responsible way and attacking the Shoshone religious area and the mountains where the water is coming from is not a good idea,” Larson Bill, vice chairman of the Southfork Band Council, Te-Moak Tribe of Western Shoshone, told The Northern Miner.

Bill noted that the proposed open pit, to be situated on the south flank of the mountain, would be adjacent to the prayer site.

“The prayer site is right where the waste rock piles are going to go,” he explained. “They say we can pray on top of the mountain or on the other side of the mountain and that we don’t need to pray here.”

But praying on the other side of the mountain would involve travelling another hour to get there, he reasoned, and if the Shoshone are to pray on top of the mountain – about 7,000 ft above sea level – they would have to use a Barrick road to do it.

The Cortez Hills project is an expansion of Barrick’s Cortez mine, which has produced gold since the 1960s. When in full production, the average annual production from Cortez is expected to be about 950,000 to 1 million ounces of gold for the first full five years.

Preproduction costs are estimated at about US$500 million, including the development of two open pits and twin exploration declines to delineate underground potential. Construction is estimated to take about 15 months.

In November, the federal Bureau of Land Management approved the company’s environmental impact statement for the project.

But Shoshone opponents aren’t giving up. Among their chief objections is that the mine will allegedly dewater 16.5 billion gallons of water from the mountain.

Shawn Collins, a Shoshone prayer person who testified at the hearings, argued that the water in the mountain carries a special spiritual nature.

“The Shoshone see the water as the life blood of the earth – if you take the water out, you kill the mountain,” Cavanaugh of the Western Shosone Defense Project, explained. “They see it as draining the lifeblood of the mountain.”

But Vince Borg, Barrick’s executive vice president of corporate communications told The Northern Miner that “water management will indeed occur and dewatering will result in almost all of it being put back into the ground (some is used for milling etc.).”

Borg also emphasized that the judge had “serious questions about the merits of the case,” noting that when plaintiffs seek preliminary injunctive relief one of the things they must establish is that they are likely to succeed on the merits of the case.

“I have not found that they are likely to succeed on the merits,” Hicks declared in his ruling.

“You have to bear in mind that a preliminary injunction is an extraordinary remedy and that the Court is not to issue a preliminary injunction unless plaintiffs have shown a likelihood of success on the merits, that they’re likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tip in their favor…”

Even so, his ruling does not signal the end of the matter. The judgment “does not mean that that’s the end of the case or that it is over,” he clarified. “Not all the evidence has been discovered through the process of discovery or presented to the Court, and it could be that a later stage…that such evidence would be presented.”