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Could Tiny Fish Stop Long Canyon Mine?

Posted on 22 May 2015 by Howard Copelan

dace

Could a tiny fish no longer than a thumb stop the Long Canyon Mine before construction begins?

The fish is called the “Relict Dace” and was mentioned in the formal appeal by the Goshute Tribe against the Bureau of Land Management Approval to the Long Canyon Mine Project.

“The Project Area spans 24,779 acres. Earth-moving activities during mine construction and operation will degrade 3,879 acres of land surface, occurring both on public and private land. On the west edge of Goshute Valley, the Johnson Springs complex, which is fed by groundwater and which includes Big Springs, forms“a system of springs, potholes, ponds, and outflows.” reads part of the appeal. ”This unique and limited habitat sustains a genetically distinct population of the relict dace (Relictus solitarius). FEIS 3-152 –3-153. “[A]n emergency petition to list the relict dace at Big Springs pursuant to Section 4 of the Endangered Species Act was submitted onJune 27, 2014 by an environmental advocacy group.” FEIS 153. While the U.S.Fish and Wildlife Service(“FWS”) did not emergency list the dace as endangered, the FWS did make a 90-day finding:“we find that the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted for the relict dace. . .”Federal Register, 80(69): 19262; see Exhibit 3. At present, the FWSis undergoing their 12-month status review of the relict dace to determine whether listing the genetically distinct population is warranted.”

LC Ad-HDAThe relict dace, Relictus solitarius, is an endangered cyprinid fish of the Great Basin of western North America. It is the sole member of its genus. The relict dace occurs in only a handful of habitats in eastern Nevada, all of which were once covered by the prehistoric Lake Lahontan. Locations include the springs of Buttle and Ruby Valleys, and the drainage systems of Franklin Lake and Gale Lake.

The mention of the dace was almost a foot note in the appeal submitted by the Goshutes against the mine two weeks ago.

In a motion to halt all work on the mine filed by  Goshute Attorney Paul Echo Hawk the Goshutes claim that the Long Canyon area contains hundreds if not thousands of Paleo Native American artifacts that would be destroyed by the construction and operation of the mine.

Two  weeks ago  Ibapah’s Goshute Indian tribe filed an appeal with the Department of Interior that, if granted, would derail or at least delay the Long Canyon Mine project 30 miles west of Wendover.

Hiring began for the Long Canyon Mine a month ago after the final government okay to begin the mine’s construction.

wrec“We think we have made a compelling case not only for a successful appeal but also for an immediate halt of construction,” said Goshute attorney Paul Echo Hawk.

According to a press release from the Goshutes the appeal asks the courts to reject the BLM finding that there are no significant archaeological finds within the project.

The massive open-pit mine would permanently destroy or remove thousands of Tribal cultural resources.

“The Long Canyon Mine area is a vitally important part of our cultural history and its destruction will erase a critical part of who we are as a people,” said Zelda Johnny, a Tribal Cultural Monitor and Tribal Council Vice-Chair.

The mention of the fish could be considered a Plan B for opponents of the mine if the appeal fails on the archeology. Orr perhaps a plan C

The 45-page Tribal appeal is supported by documents showing the BLM refused to share known information about Tribal cultural items in the area and that the BLM insisted the Tribe waive legal claims in order to have access to the BLM’s Tribal information.

“How can our Tribe evaluate the impact of this proposed mine when the BLM would not give us access to the information about our historical ties to the site?” said Tribal Chairwoman Madeline Greymountain.

But although insisting that Long Canyon is almost holy Native American Land the Goshutes have brought very little evidence to support their claim.

centraWhile there could be an abundance of arrow heads and pottery shards and several ancient hearths there is little evidence to suggest that the Long Canyon was anything more than a place to get through for the nomadic ancient native peoples that became the Shoshone and the Goshutes.

According to Zelda Johnny so far no petroglyphs, signs of long term settlements or agriculture have been discovered.

The dearth of such artifacts helps the mining company and the BLM in two distinct ways. Bureacratically the lack of artistic artifacts supports the claim that the area was not spiritually important to the paleo Indians. The lack of such artifacts also means that the enthusiasm against the mine would be more difficult to generate and maintain.

According to some reports the Goshutes may believe a rumor that the BLM or even Newmont is keeping what would be considered very significant finds secret and away from the Goshutes.

It is one thing to seek to protect rock art created by an ancient Indian from the last ice age but it is impossible to feel the same emotional bond to a hearth dug in the ground no matter how old that hole is.

The Goshute  administrative appeal is a required first step in the appeal process.  “The Tribe is committed to forcing the BLM to follow the law and allow the Tribe a full and fair opportunity to participate in the federal review process before this special place and tribal artifacts are permanently destroyed forever.  The BLM has failed its trust responsibility in this case,” said Echo Hawk.

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To Miss E. With Love

Posted on 22 May 2015 by Howard Copelan

concertek

Hundreds of past and present WWHS music students gave a fond fair well to Choir and Band director Patty Eklund Wednesday who after 19 years of teaching is returning home to Minot North Dakota.

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Ely Disincorporation Vote Moves Forward

Posted on 22 May 2015 by Howard Copelan

elydowntown

A bill which could lead to the disincorporation of the City of Ely cleared another hurdle to make it on the 2017 ballot Friday when it cleared an Assembly Committee.

The Assembly Government Affairs Committee voted 8-6 on Friday to pass SB238, which was sponsored by Republican Sen. Pete Goicoechea.

The measure would create a 2017 advisory ballot question to break up the City of Ely and instead form a town that would be governed by White Pine County.

Originally the bill had scheduled the disincorporation vote to this year’s general city election but was delayed following a lobbying blitz by several Ely elected officials. Most spoke against the disincorporation and argued that it would be unfair to spring the vote on the electorate with just three months notice.

wrecThe legislature agreed and post poned the vote until 2017. Ever since the closure of Kennecott in the late 1970’s the idea of disincorporating Ely has raised its head. Proponents of the idea have argued that such a move would save vast amounts of tax payer dollars in uniting services and doing away with the costs of running a city.

Opponents argue that the savings are not so great especially since the Ely and White Pine County have a joint police force already.

Underneath the pocket book issues could be however a general weariness in the legislature about dealing with Ely politics. One of the most bitterly divided communities in the state Ely and to a lesser extent White Pine County regular has recall elections or rather recall election movements the cost both time and money.

Often political disagreements are resolved by the courts.

In the latest uproar the Ely City Council made up of newly relocated “reformers” came up against the “good old boys” native Ely residents on the Rail Road Management board.

In what was called an effort to embarrass the Rail road Board the city council paid tens of thousands of dollars for an audit of the Rail Road’s books.

centraWhile the audit found no evidence of criminal or financial wrong doing it did slight the board for sloppy bookkeeping. Both sides took the audit result as a sign of victory.

Although the pro-disincorporation movement could have the upper hand now the fact that the vote is now delayed for tw years could mean everything.

Ely and White Pine County could be on the verge of a gold mining boom with two major mines well into the permitting process. The influx of people and perhaps an economic boom could change everything once again.

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WHS Progress Stuns School’s Critics

Posted on 22 May 2015 by Howard Copelan

whs grads (1)With class to 100 percent graduating and over 90 percent of its senior class going on to either higher education or the military, first year Wendover High School principal Clint Spindler is a very satisfied man.

“I know Wendover had a reputation,” Spindler said Wednesday. “This result disproves it.”

Spindler credited both an enticed teaching corps and staff, new programs and student core that was not only eager to learn but eager to keep learning as the secret to the school’s success.

“Everyone had a hand in it,” he said proudly.

However the new principal was reluctant to mention his own commitment.

A 28 year veteran of the Tooele School District Spindler devoted most of his life to WHS over the past nine months. He slept at the school going home only on weekends and returned every Monday for the 7:30 am faculty meeting.

He also instituted the Americorps Graduation Destination Program that proved wildly successful in keeping kids in school and then directing them to options after high School.

centraLast year for example 83 percent of Wendover students graduated fand just nine percent planned to continue their education. This year, 97 percent of the seniors are graduating and 94 percent of them have post-secondary plans in place.

Education hasn’t necessarily been a first priority, work has been. We’ve really tried to work with students in a way where they understand the importance of being college and career ready.” Spindler told KSL news.

Counselors  conducted home visits with parents to prepare families for college. The school devoted a daily class to college preparation and application. And counselors spent 50 hours working individually with students.

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WWHSArtists Shine

Posted on 22 May 2015 by Howard Copelan

art1

West Wendover High School students made a “clean sweep” in the Ceramics/Pottery Compitetion at the Elko County Student Art Sow at the Northeastern Nevada Museum in Elko. Best of Show – Macario Mendoza, First Place – Ashley Smith, Second Place – Luis Landeros, and Third Place – Tessa Duncan

The art show opened April 29th and ended May 15th.

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WREC Returns Nearly $700,000 To Owners

Posted on 22 May 2015 by Howard Copelan

Veronica Hansen and West Wendover City Manager Chris Meville

Veronica Hansen and West Wendover City Manager Chris Meville

Every May is capital credit month for Wells Rural Electric Company owners and this year’s checks have been mailed. WREC is retiring a total of $690,370 in capital credits to owners this year and 22 accounts will receive checks of more than $1,000.

There are no customers at WREC, only owners. One of the biggest differences between cooperatives like WREC and investor-owned utilities is the returning of margins to owners in the form of capital credit checks. Each owner receives an allocation, their share of revenue in excess of expenses, according to their usage. Owners do not necessarily receive checks for specific allocations and the amounts cannot be applied to monthly bills. Each allocation is simply an amount that will be part of the capital credit checks when the total retired amount reaches $10 or more.

wrecMany cooperatives around the country struggle to maintain enough financial stability to retire allocations back to their owners every year, but WREC’s Board of Directors has successfully managed to maintain an appropriate margin and faithfully return capital credit checks to owners for more than 30 straight years. Aside from receiving safe, reliable, cost-based electricity, capital credit checks are a big part of the cooperative difference owners enjoy by receiving their power from WREC.

Those receiving checks this year should get theirs in the mail by the end of May. If you do not receive a check, but believe that you should, please contact your local office. If you have questions about capital credits, please see the chart on page 29 of the May issue of Ruralite or visit www.wrec.coop.

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New Song Bird Calls Wendover New Home

Posted on 22 May 2015 by Howard Copelan

tanager

The Western Tanager, a bright yellow song bird has made Wendover its new home.

“They are very beautiful, but they weren’t too common out here until 2011,” said Bob Walters Chief biologist of the Utah Department of Wildlife. “In Salt Lake we have had an invasion and there are definitely breeding in Wendover.”

Since then Ornithologists have had  to revise their maps regarding the range of the Western Tanager.

wrecThe Western Tanager, Piranga ludoviciana, is a medium-sized American songbird. Formerly placed in the tanager family (Thraupidae), it and other members of its genus are now classified in the cardinal family (Cardinalidae).[1] The specie’s plumage and vocalizations are similar to other members of the cardinal family.

Adults have pale stout pointed bills, yellow underparts and light wing bars. Adult males have a bright red face and a yellow nape, shoulder, and rump, with black upper back, wings, and tail; in non-breeding plumage the head has no more than a reddish cast and the body has an olive tinge. Females have a yellow head and are olive on the back, with dark wings and tail.

The song of disconnected short phrases suggests an American Robin’s but is hoarser and rather monotonous. The call is described as “pit-er-ick”.

Their breeding habitat is coniferous or mixed woods across western North America from the Mexico-U.S. border as far north as southern Alaska; thus they are the northernmost-breeding tanager. They build a flimsy cup nest on a horizontal tree branch, usually in a conifer. They lay four bluish-green eggs with brown spots.

centraUntil recently the birds mostly just passed through northeast Nevada while migrating to their nesting grounds in the northern United States or Canada or their summer spots in Mexico.

“Partly because of the late spring some of them might have decided this was north enough,” Walters said.

Even without the cold temperatures conditions were ripe for the birds to make new homes in what was once not so prime real estate.

“Because of people and invasive grasses there is a lot more food available than there used to be.” Walters added. “The tanagers might make this permanent.”

The song birds aren’t the only species to make a new home in eastern Nevada recently. Deer, Prong Horn antelope and Big Horn Sheep once rare or never seen before in the area are now frequently seen in Ely, Wendover and Wells as are Bald and Golden Eagles and all kinds of other small mammals and birds.

According to biologist a major reason for this return of the wild is due to human occupation. By increasing water supplies and planting fruit and seed bearing trees people have transformed essentially barren waste land into much more diverse biosphere.

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Montego Bay Super Bowl Death Autopsy Result: Utah Woman Died Of Drugs Not Murder

Posted on 15 May 2015 by Howard Copelan

deadgirl

 

The Nevada Medical Examiners ruled that a Utah woman’s death in a Wendover Hotel room was drug related reported the Elko County Sheriff’s department Wednesday.

“The 29 year old Caucasian female, Malarie Morgan, died due to mixed drug toxicity due to oxycodone, hydrocodone, and diazepam,” wrote Elko Sheriff’s Detective Sergeant Nicholas S. Czegledi in a press release. “This is the opinion of the medical examiners Dr. Ellen G. I. Clark, M.D. and Piotr Kubiczek, M.D. “

The Elko County Sheriff’s office has ordered an autopsy on the body of Malorrie Morgan a 29 year old Taylorsville woman who was found dead in her hotel room over the Super Bowl weekend.

wrec“It is pretty unusual,” said a source close to the investigation. “Usually a toxicology report is all that is required but this time around the full autopsy was ordered. It will be a while before the results are in.”

A toxicology report involves testing blood samples of the victim for a variety of substances that can cause death. The much more invasive autopsy is another word for dissection.

“I don’t know whether the autopsy was ordered in deference to her father or not.” Continued the source. “But it is unusual.”

According to West Wendover Police Chief Burdel Welsh Malorrie Morgan, 29, of Taylorsville Utah was found dead in her hotel room at the Montego Bay Casino/Resort the morning of February 3rd.

centraMorgan had arrived in Wendover Monday with common-law husband Mike Rasmussen also of Taylorsville.

“There were no preliminary signs of foul play,” said WWPD Chief Burdel Welsh. .”However the autopsy and toxicology reports have not come in yet.

The dead woman in the daughter of Nephi, Utah Police Chief Mike Morga nand the mother of six children.

But while no signs of foul play have been discovered several bloggers identifying themselves as relatives of the dead woman have all but alleged Morgan’s death was no accident.

“ This is sad our beautiful niece. I hope justice will be served and the truth comes out.” wrote Carla Covington on the High Desert Advocate’s web page. “We have faith In the Nevada police and all officers investigating this. Praying the truth comes out.love and miss you beautiful”

LC Ad-HDAOthers lambasted that blogger: “ just wanted to clarify that Mallorie Morgan (Rasmussen) & Michael Rasmussen where in Wendover for the Super bowl with their 7 children (one is her step child) all of which where in the room together.” wrote blogger A Family Member. “She did not die alone, she was surrounded by her loving family who are clearly devastated, and who ever you are Carla Covington? I have never heard your name in 14 years, be assured she was loved and did not die “unattended. Her father loves his daughter deeply and is devastated to say the least, and the comments you have made are purely inappropriate. Please refrain from making false statements in which cause more pain to the FAMILY.”

Other blogs include:

Someone who’s lost a parent Says:

February 5th, 2015 at 1:14 pm e

This is truly tragic. People should refrain from posting devastating comments and from implying things that shouldn’t be implied. These children don’t need additional negativity on an already horrible situation. Before you post anything hurtful maybe think to yourself, “would this hurt me if someone wrote it about my dead family member?”. My heart goes out to these kids & to their dad! May you always remember your mommy as a queen & may the happy memories comfort you when things are hard.

SVF-POSTER-2015-printonYELLOW-page1-1Family member Says:

February 27th, 2015 at 3:25 pm e

I like how everyone just assumes it was just her father that went through a bad situation no one even cared to mention her mother Vicky Redmond in this article.. She was very close to her daughter Malarie. And this has put her through hell also. It’s really quite rude to just mention who her father was and not mention she is a daughter if Vicky Redmond.. Talk about disrespect here.. So yes if anyone is disrespecting her kids and family that’s uncalled for. But to ignore her mothers name maybe practice what you preach..

Family member Says:

February 27th, 2015 at 4:07 pm e

Ya why is only her dad mentioned in this article? Does her mom and this young lady’s husband names not deserve to be mentioned in this article? Don’t you think they are hurting as well? Or do they not have feelings cause they are not in law enforcement? Gotta love it. I’m truly sorry to her close family and especially the kids.. My heart goes out to all of them

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BLM Asks For Time To Answer To Goshute Appeal/ Racism Is Charged

Posted on 15 May 2015 by Howard Copelan

While the 170 year old ruts above stopped a mine, the 10,000 + year old fire pits below are ignored by the BLM

While the 170 year old ruts above stopped a mine, the 10,000 + year old fire pits below are ignored by the BLM

hearth

 

The Bureau of Land Management is asking for a two week extension to answer the appeal to shut down the Long Canyon Mine while the Goshute Tribe wants all work stopped immediately according to dueling motions filed last week.

Citing a heavy workload and the unexectedness of the appeal BLM Attorney Janet Fealk requested the two week extension to prepare the Bureau’s answer to the appeal filed by the Goshute tribe in Ibapah.

In a motion to halt all work on the mine filed by  Goshute Attorney Paul Echo Hawk the Goshutes claim that the Long Canyon area contains hundreds if not thousands of Paleo Native American artifacts that would be destroyed by the construction and operation of the mine.

wrecFull rtext of the Goshute motion is published in this edition.

Last week Ibapah’s Goshute Indian tribe filed an appeal with the Department of Interior that, if granted, would derail or at least delay the Long Canyon Mine project 30 miles west of Wendover.

Hiring began for the Long Canyon Mine less than one month ago after the final government okay to begin the mine’s construction.

The confederated Goshute Tribe of Ibapah appealed the Bureau of Land Management’s green light of the mine and also move to stop all construction now underway at the mine site until the appeal was heard in federal court.

LC Ad-HDA“We think we have made a compelling case not only for a successful appeal but also for an immediate halt of construction,” said Goshute attorney Paul Echo Hawk.

According to a press release from the Goshutes the appeal asks the courts to reject the BLM finding that there are no significant archaeological finds within the project.

The massive open-pit mine would permanently destroy or remove thousands of Tribal cultural resources.

“The Long Canyon Mine area is a vitally important part of our cultural history and its destruction will erase a critical part of who we are as a people,” said Zelda Johnny, a Tribal Cultural Monitor and Tribal Council Vice-Chair.

centraThe 45-page Tribal appeal is supported by documents showing the BLM refused to share known information about Tribal cultural items in the area and that the BLM insisted the Tribe waive legal claims in order to have access to the BLM’s Tribal information.

“How can our Tribe evaluate the impact of this proposed mine when the BLM would not give us access to the information about our historical ties to the site?” said Tribal Chairwoman Madeline Greymountain.

But although insisting that Long Canyon is almost holy Native American Land the Goshutes have brought very little evidence to support their claim.

While there could be an abundance of arrow heads and pottery shards and several ancient hearths there is little evidence to suggest that the Long Canyon was anything more than a place to get through for the nomadic ancient native peoples that became the Shoshone and the Goshutes.

According to Zelda Johnny so far no petroglyphs, signs of long term settlements or agriculture have been discovered.

The dearth of such artifacts helps the mining company and the BLM in two distinct ways. Bureacratically the lack of artistic artifacts supports the claim that the area was not spiritually important to the paleo Indians. The lack of such artifacts also means that the enthusiasm against the mine would be more difficult to generate and maintain.

It is one thing to seek to protect rock art created by an ancient Indian from the last ice age but it is impossible to feel the same emotional bond to a hearth dug in the ground no matter how old that hole is.

The Goshutes could however in their appeal against the BLM and that would be the BLM.

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Foster Wilson

“The BLM is racist,” joked Foster Wilson whose potash mine just 20 miles east of Long Canyon was derailed by the BLM because it threatened wagon ruts supposedly left by the Donner Party and other pioneers less than 200 years ago.

“On one hand the BLM says wagon ruts from the 19th century are sacrosant but camp sites from 20,000 years ago are worthless,” Wilson explained. “The only difference besides the age is that the ruts were made by white people and the campsites were made by Indians.”

Already Wilson was cotemplating suing the BLM under the Equal Protection clause in the US constitution.

Otherwise know as the “sauce for the goose” clause, the Equal Protection Clause is part of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides that no state shall deny to any person within its jurisdiction “the equal protection of the laws”.

SVF-POSTER-2015-printonYELLOW-page1-1“My lawyers think I have a pretty good case,” said Wilson President and CEO of Mesa Mining. The companies efforts to dig a potash mine about 30 miles north of Wendover was denied by the federal Bureau of Land management last year on the grounds that the mine would be located in the same general area of Hasting’s Cutoff

“One of the main reasons we were denied in Pilot Valley was because of the California Trail (CHT) – Hastings Cutoff,” wrote Wilson in an e-mail to the High Desert Advocate.

The Hastings Cutoff crosses the Long Canyon project in Elko County Nevada to the west of Pilot Valley and is designated a high-potential segment, just like at Pilot Valley.

According to Wilson the Utah office of the BLM buckled to the pressure of the Califonia and Oregon Trail preservationist while the Nevada office did not.

“It is the same trail,”Wilson said Wednesday. “Why is development not only be allowed in Nevada but imbrued but in Utah it is being stopped?”

The answer to Wilson’s question could be because the California Trails group has much more political pull in Utah than it does in Nevada.

The Oregon-California Trails Association is the nation’s largest and most influential organization dedicated to the preservation and protection of overland emigrant trails and the emigrant experience.

chendraThe Goshute  administrative appeal is a required first step in the appeal process.  “The Tribe is committed to forcing the BLM to follow the law and allow the Tribe a full and fair opportunity to participate in the federal review process before this special place and tribal artifacts are permanently destroyed forever.  The BLM has failed its trust responsibility in this case,” said Echo Hawk.

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Goshute Motion To Halt Mine Immediately Text

Posted on 15 May 2015 by Howard Copelan

shards

PETITION FOR STAY

Pursuant to 43 C.F.R. § 4.21, the CTGR hereby petition for a stay of the challenged BLM final decision. The CTGR respectfully request the IBLA to stay this contested decision until the appeal is resolved.  A stay of the BLM’s decision and approval of the Project is necessary to prevent irreparable harm to the CTGR and the environment.  This Petition is filed contemporaneously with the CTGR Notice of Appeal and Statement of Reasons and Declaration of Paul Echo Hawk in Support.  These documents and attached exhibits support the Petition for Stay and are incorporated herein by this reference.

I. LEGAL STANDARD FOR A STAY

To prevail on a petition for stay, the appellant must show sufficient justification based on the following four standards:  (A) the likelihood of immediate and irreparable harm if the stay is not granted, (B) the relative harm to the parties if a stay is granted or denied, (C) the likelihood of appellant’s success on the merits, and (D) whether the public interest favors granting a stay.  43 C.F.R. § 4.21(b).  Furthermore, under Wyoming Outdoor Council, et al., (153 IBLA 379, 388 (2000)), the IBLA has previously held that:

In balancing the likelihood of movant’s success against the potential consequences of a stay on the other parties it has been held that it will ordinarily be enough that the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus more deliberative investigation.

Maintaining the status quo during pendency of appeal “can be of considerable importance since the effectiveness of any relief may be compromised if actions objected to are allowed to go forward during the period of adjudication.” W. Wesley Wallace, 156 IBLA 277, 278 (2002).

A. Likelihood of Immediate and Irreparable Harm to CTGR

The primary issue in this case is the destruction of thousands of cultural artifacts and hundreds of cultural sites.  In a letter to the BLM, CTGR Chairwoman Greymountain detailed a few of the large finds that tribal monitors had come across during their work within the Project Area, and the significance of those finds:

Massive numbers of cultural resources have been discovered within the Project Area that were somehow inconceivably missed during previous inventories . . . .  Just recently, over 6,000 tribal artifacts were newly discovered in just one very small part of the Project Area.  Perhaps even more astounding was the recent discovery of more than 900 well-defined stone tools of historic and prehistoric periods that were identified in part by tribal monitors.  When tribal monitors walked into a grove of Pinyon-Juniper trees, they found ancient pottery everywhere. It was unrecorded, undocumented, conveniently missed. These finds are staggering.  They are unprecedented.  And they are only a fraction of what has been discovered recently, and only a fraction of the discoveries that increase each day when the tribal monitors are working at the Project site.  In fact, so many new and significant discoveries have been made with the assistance of tribal monitors that it is undeniably clear that the Project’s cultural resource inventories (and seven previous site-specific cultural resource studies) grossly misrepresent and underestimate the significance, context, and scale of important tribal cultural resources within the Project Area.

Exhibit 2 at 4.

The destruction of those cultural resources and cultural sites can never be reclaimed.  It is purely irreparable.  Those resources and sites hold significant components of Goshute history and cultural.  The removal of thousands of artifacts from the Project Area through data recovery mitigation permanently destroys the artifact-land-tribal connection that is an essential part of who tribal people are and how they know their cultural history.  So, along with the destruction of resources and sites, the destruction of Goshute history and culture is purely irreparable.

In sharp contrast, the gold in the project area is not going anywhere.  There is no compelling reason to rush forward with the open-pit mining activity that will permanently alter the landscape and destroy invaluable tribal cultural resources.

CTGR Chairwoman Greymountain attested to the irreparable aspects of the cultural resources and cultural sites:

[W]e want to work cooperatively with the BLM not just in our fiduciary relationship but also in the spirit of how truly significant this archaeological site really is.  While the BLM has seen thousands of days

when mine projects have been approved, it is truly a rare and incredible day when we find an archaeological site of this depth and magnitude.  Just as we have said from the onset of this Project EIS, the site is a monumental cultural area of profound significance.  When we are faced with a rare and monumental discovery, we must rise to the occasion.  We must spend the time and energy to properly reveal this great archaeological site.  The gold at the Project Area will not disappear in the meantime. But if the BLM were to permit this Project prior to properly documenting and mitigating this great historical site, then a great part of Goshute history would be lost forever, and with it a significant part of American history would be lost forever. This site is a national treasure.  It is an historical asset that can never be replaced if destroyed.

Exhibit 2 at 8.  Even when cultural artifacts are collected and shipped off to far-away, limited-access holding facilities as part of “data recovery” mitigation, the CTGR loses forever a significant part of their ancient resources, history, and culture. 

Not only will the harm to CTGR be irreparable, the harm will be immediate.  Once the BLM issues a Notice to Proceed to Newmont, they will begin a rapid process of “construction monitoring” and “data recovery.”  During that process, cultural resource monitors will collect cultural resources resting on the ground surface.  They will perform data recovery by recording standardized information about the artifacts (e.g., location, GPS data, photographs, artifact classification, etc.) in the BLM-approved context, or the “Caucasion perspective” of Goshute ancestral resources. They will then remove those resources from the Project Area and ship them to federal curation and testing facilities.  Some of the artifacts will undergo geochemical analysis to determine artifact age, source, or other information.  The thousands of individual artifacts will be kept inside the federal facility in a sort of “curation warehouse.”  This curation facility is located in or about Boise, Idaho, which is a six-hour, 366-mile drive from the Goshute Reservation.  If space is available after geochemical analysis of artifacts, some may be sent to another curation facility in or near Reno, Nevada, which is a seven-hour, 455-mile drive from the Goshute Reservation.

If a stay is not granted, the BLM would be allowed to proceed with mine Project that has been developed and approved in contravention of federal law. This will cause potentially irreparable harm to the public lands involved.  An exacting standard of what constitutes the minimum harm has been previously ruled:  “harm to the environment may be presumed when an agency fails to comply with the required NEPA procedure.”  Davis v. Mineta, 302 F.3d at 1115; see also Amoco Prod. Co. v. Village of Gambrel, 480 U.S. 531, 545 (1987) (“Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable . . . therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment”).

The Supreme Court has acknowledged that environmental harm, which includes harm to cultural resources, cultural sites, and areas of Native American traditional and religious conern, is typically permanent or irreparable, and that the “balance of harms usually favors issuance of an injunction to protect the environment.” Amoco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531, 545 (1987). Federal courts have also repeatedly affirmed that noncompliance with NEPA and other environmental laws generally causes irreparable injury, not only by threatening permanent harm to the environment but also by injuring the rights of affected members of the public to participate and be fully informed of the agency’s decision-making process under NEPA. See, e.g., Save Our Ecosystems v. Clark, 747 F.2d 1240, 1250 (9th Cir. 1984); California v. Block, 690 F.2d 753 (9th Cir. 1982).

B. Relative Harm to the Parties

The relative harm to the parties favors the issuance of a stay.  Little to no harm to BLM will result from a stay.  While the BLM may allege that a stay would result in economic harm to Newmont, that harm would only be temporary.  The millions of ounces of gold in the Pequop Mountains are not going to disappear; the gold will remain whilst the appeal is resolved.  And the economic benefits to Newmont will resume after the appeal has been resolved.

Any temporary economic harm in this case is not considered irreparable. See South Fork Band Council, 58 F.3d at 728 (economic injuries to mining operations temporary); S.E. Alaska Conservation Council v. U.S. Army Corps of Eng’rs, 472 F.3d 1097, 1101 (9th Cir. 2006) (“there is no reason to believe that the delay in construction activities caused by the court’s injunction will reduce significantly any future economic benefit that may result from the mine’s operations”); Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 738 (9th Cir. 2001) (“loss of anticipated revenues . . . does not outweight the potential irreparable damage to the environment”). Where a threat exists of irreparable environmental harm, “more than pecuniary harm must be demonstrated” to avoid a preliminary injunction. N. Alaska Envtl. Ctr. V. Hodel, 803 F.2d 466, 471 (9th Cir. 1986) (irreparable environmental harm outweighed competing harm to miners despite potential for “real financial hardship”). Save Our Sonoran, 408 F.3d at 1124-1125 (affirming preliminary injunction because, while developer “may suffer financial harm,” without injunction “unlawful disruption to the desert is likely irreparable”).

On the other hand, the harm to CTGR is permanent and irreparable.  There will be no way for the CTGR to regain the site-specific historical, cultural, and spiritual connection to the Project Area once the mine is constructed.  And as detailed under the previous subsection, “Likelihood of Immediate and Irreparable Harm to CTGR,” all that will remain of that cultural history and resources will be destroyed through construction and operation, and through the removal of artifacts from the site and placement into far-away holding facilities.

C. CTGR is Likely to Succeed on the Merits

The CTGR’s likelihood of success on the merits also favors granting a stay.  At a minimum, the CTGR have raised “fair ground for litigation and thus for more deliberative investigation,” Wyoming Outdoor Council, et al., 153 IBLA at 388 (showing that the decisions and ROWs should be stayed pending resolution of their appeal).

Under NEPA, “injury . . . occurs when an agency fails to comply with that statute” and “[t]he injury-in-fact is increased risk of environmental harm stemming from the agency’s allegedly uninformed decision-making.” Sierra Club v. U.S. Army Corps of Eng’rs, 446 F.3d 808, 816 (8th Cir. 2006). “Injury in fact necessary for standing ‘need

not be large; an identifiable trifle will suffice.’” Sierra Club, 645 F.3d at 988 (quoting

Sierra Club v. Franklin Cnty. Power of Ill., LLC, 546 F.3d 918, 925 (7th Cir. 2008)).

Here, the CTGR satisfy the injury-in-fact requirement, but in a significant not trifle way.  The environmental harm that the Project will cause is the permanent destruction and removal of thousands of tribal cultural artifacts, and the destruction of hundreds of cultural sites.  That destruction threatens the use and enjoyment of the area by tribal members of the CTGR because they attached historical, cultural, and spiritual value to the Project Area.

Furthermore, the NHPA and its operating regulations require the BLM to follow the procedural requirements under Section 106 before approving the Project. Failing to do so, which the CTGR has clearly demonstrated, is grounds for a stay and remand of the BLM’s decision. See Mid States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 520, 555 (8th Cir. 2003) (remanding Surface Transportation Board decision approving new

rail line for failure to complete Section 106 process prior to granting railroad construction authority).

D. Public Interest Favors Granting the Stay

Finally, the issuance of a stay would serve the public interest. The ‘public interest’ is a concept that must be interpreted to encompass both potential impacts and the legal requirements of an agency undertaking an action. “The public interest favors maintaining the status quo until the merits of a serious controversy can be fully considered.” Citing Valdez v. Applegate, 616 F.2d 570, 572-573 (10th Cir. 1980).

Upholding federal environmental law is an inherent part of the public interest. See Earth Island Inst. v. U.S. Forest Service, 442 F.3d 1147, 1177 (9th Cir. 2006) (public’s interest in preserving the environment favors injunctive relief); ONRC v. Goodman, 505 F.3d 884, 897-99 (9th Cir. 2007) (same). The public interest favors following the statutory requirements of NEPA, NHPA, and other laws, regulations and policies mentioned under the Statement of Reasons.  Those federal regulations, statutes, and principles have been instituted in furtherance of the public interest.  To allow the BLM to approve the Project without following those Federal requirements would unduly harm the public interest in the values protected by these law and regulations, and in lawful governance itself.

The Ninth Circuit has repeatedly recognized that injunctive relief is appropriate for noncompliance with environmental laws, including NEPA and NHPA violations. See Blue Mtns. Biodiversity Project v. Blackwood, 161 F.3d 1207, 1208, 1211 (9th Cir. 1998); Muckleshoot Indian Tribe v. USFS, 177 F.3d 800 (9th Cir. 1999); National Parks Conservation Assoc. v. Babbitt, 241 F.3d 722, 736 (9th Cir. 2001); Earth Isalnd Institute v. USFS, 351 F.3d 1291 (9th Cir. 2003); Sierra Club v. Bosworth, 510 F.3d 1016, 1033-34 (9th Cir. 2007).

Essential to both NHPA and NEPA is the requirement to consider how Federal projects may affect the public interest. See United States v. 0.95 Acres of Land, 994 F.2d 696, 698 (9th Cir. 1993).  Those requirements obligate the BLM to follow procedural requirements fully, not to pre-approve the Project before NHPA and NEPA were completed so the BLM could give Newmont “an early 50th anniversary present” (Exhibit 11), and not to adopt the notions that federal mining laws “trump” other federal laws (Exhibit 9).  Moreover, the public interest in federal lands stretches far beyond Elko County, Nevada. The public interest is national.  A part of that national public interest, brought forth here by the CTGR, is the historical, cultural and spiritual value of the Project Area.

Thus, the public interest favors obtaining adequate review through this administrative appeal, and waiting for the final disposition of the appeal before conducting any construction activity of the mine Project.

PRAYER FOR RELIEF

For the foregoing reasons, there were clear and repeated showings that BLM’s process to approve the Project was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” (5 U.S.C. § 706(2)(A)), or “without observance of procedure required by law” (§ 706(2)(D)); see also Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 375–376, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976).  Accordingly, the ROD approving the FEIS and Plan of Operations must be set aside.

CONCLUSION

Based on the foregoing, the CTGR respectfully requests the IBLA to issue an order granting the Petition for Stay.

DATED:  May 5, 2015.

ECHO HAWK LAW OFFICE

______________________________

Paul C. Echo Hawk

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