RENO - Lawyers for an environmental group and Native American tribes trying to block another expansion at one of the biggest gold mines in North America say the U.S. government - in concert with the largest gold company in the world - is making an unprecedented attempt to skirt two of the nation's fundamental laws protecting federal lands.
In a case that's been bouncing back and forth between federal court in Reno and the 9th Circuit Court of Appeals for nearly three years, the U.S. Bureau of Land Management and Barrick Gold Corp. have countered that the Great Basin Resource Watch and the Western Shoshone are exaggerating the harm the mining operation will cause to the groundwater beneath Nevada's Mt. Tenabo, and to the cultural and religious beliefs of native people who regard the water as sacred.
The Obama administration is arguing, for the first time, that it has no responsibility under the National Environmental Policy Act or Federal Land Management and Policy Act to analyze those cultural and religious impacts because they can't be quantified. And - in the case of Barrick's Cortez Hills project - the government is arguing any damages from those impacts are impossible to mitigate.
"BLM very thoroughly analyzed the project's potential effects on Native American beliefs and cultural practices," said Ty Bair, a lawyer in the Justice Department's Environment and Natural Resources Division. But, he said, since the Western Shoshone didn't keep records about their use of the water, he said, "it was impossible to analyze the impact to the users."
Roger Flynn, the lead lawyer representing the two Western Shoshone tribes and the environmental watchdog group based in Reno, refuted that logic.
"If you don't have to mitigate for degradation any time you can't quantify something, then BLM would be off the hook forever on Western lands for protection of any cultural or religious values," said Flynn, who founded the Western Mining Action Project in Denver in 1990. "That's a very dangerous precedent for federal lands in the West."
U.S. District Judge Larry Hicks is expected to rule as early as next month on the supplemental environmental impact statement BLM completed in March for the Cortez Hills project after the 9th Circuit Court twice found the previous work insufficient and ordered a third try.
The appellate court in San Francisco ruled most recently in 2010 that the BLM had failed to adequately analyze the potential for the project to pollute the air and dry up scarce water resources in northeast Nevada's high desert.
Because mining operations run into the water table about 500 feet beneath the surface, water must be pumped out of the open pit in order to maximize production as deep as 2,100 feet - a projected total of 16.5 billion gallons of water over the life of the mine. Most of that water is being piped about 15 miles away into the arid Crescent Valley for agricultural use.
Justice Department lawyers representing BLM told Hicks during oral arguments on Oct. 6 that the agency's new analysis complies with all state and federal laws. Barrick has been operating under the directions of the supplemental EIS since March and now is mining as deep as 1,500 feet.
Toronto-based Barrick, which reported net income in 2010 of $3.27 billion on $10.9 billion in revenue, also argues that impact to Indian water users can't be measured.
"BLM can't analyze uses that aren't specified," said Francis Wikstrom, a lawyer for Barrick based in Salt Lake City. "Nobody told BLM they go every day to this spring to pray, or that spring."
Tribal leaders say Mt. Tenabo is home to several Western Shoshone creation stories and the water running beneath it is a sacrament important to maintaining the balance and power of life.
"This area is where the seasons of the year were named - in the time before people were here," said Carrie Dann, who founded the Western Shoshone Defense Project in 1991. "This entire area is very important to us as Western Shoshone people,"'
Barrick and BLM maintain that the Federal Land Policy and Management Act that President Carter signed into law in 1976 "protects public lands, not religious uses of those public lands."
"The laws protect public lands, they don't protect individual beliefs," Wikstrom said.
He said BLM has been "respectful" of the tribe's beliefs but their use of the water is only a "general, spiritual" one.
"For those Western Shoshone who feel the water is sacred and should be left alone, we can't mitigate against that," he told the judge.
But John Hadder, executive director of the Great Basin Resource Watch, said they have offered a number of alternatives that would help minimize the impact on the tribe's use of the water.
"One way is just don't pump as much, but Barrick doesn't like that idea," Hadder said, because less pumping means Barrick can't mine as deep.
"I don't like to say it, but it really does look like BLM is just catering to the mining company," he said.
Flynn said BLM is missing the point in trying to calculate the spiritual value to the tribes.
"They say we can quantify how many cows go up there to drink so we'll mitigate for that, but we can't quantify Western Shoshone uses. It is such a short-sighted viewpoint of their authority."
Flynn said the ramifications go beyond mining projects. He said it could set a new precedent for logging on national forests as well as development at national parks, seashores, monuments and battlefields.
"If simply because you cannot quantify an entire Native American nation's religious views then you don't have to mitigate for it," he said, "well, then there goes out the window all protection for Native American cultural and religious practices on all public lands."