Comments of the National Congress of American Indians on the Department of Energy Office of Civilian Radioactive Waste Management Draft Environmental Impact Statement for a Geologic Repository for the Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste at Yucca Mountain, Nevada Test Site
February 28, 2000

Introduction

The National Congress of American Indians submits the following policy and procedural issues that are among the many concerns of tribal governments in evaluating the Department of Energy (DOE) Office of Civilian Radioactive Waste Management's (OCRWM) for the Draft Environmental Impact Statement (DEIS) for a geologic repository for the disposal of spent nuclear fuel and high-level radioactive waste at Yucca Mountain, Nevada Test Site.

Comments
1. The impacts of this federal action upon indigenous peoples, lands, and resources is critical to the human rights of the people to reside in their homelands. The NCAI does not believe that the impacted tribal governments of this federal action have had an ample opportunity to analyze and respond to the full inventory of technical studies performed at Yucca Mountain. This is not to say they have not received notice of the studies and progress reports done during the site characterization. Without exception, tribal governments in the Yucca Mountain region have not had the luxury of acquiring a team of technical experts to assess the data and conclusions. The DOE is well aware of the fiscal barriers which prevents tribes from assembling a research team. The NCAI believes the DOE has a fiduciary responsibility to provide the Yucca Mountain area tribes with resources that would enable them to respond to the Draft EIS.

The relationship between the federal government and tribal governments originates from treaties which were signed following the formation of the United States between these sovereigns. A guiding principle of the tribal/federal relationship is the legally enforceable trust responsibility of the United States to protect tribal self-determination, tribal lands, assets, resources and treaty rights, as well as carry out the directions of federal statutes and court cases. One of the intents of the federal guardianship is to mitigate the devastating effects of loss of lands upon which the tribal populations have lived for thousands of years. The obligations of the tribal trust doctrine are often perceived as burdensome to federal officials when embarking on federal actions which impact tribal governments and peoples. This is because of the government to government notice and consultation requirements necessary for federal guardianship can be time consuming, will cause delays in scheduling, and are added costs to the respective agency or contractor.

There are various points in the history of this country when individuals own up to misgivings and inaction of the federal government in exercising their responsibilities. For instance, the goal of Indian Reorganization Act of 1934 (IRA), 25 U.S.C. s.465, was to provide for the recovery of the Indian land base and reestablish tribal economic, governmental and cultural life: One of the IRA's principal authors, Congressman Howard of Nebraska, noted at that time, "...[T]he land was theirs under titles guaranteed by treaties and law; and when the government of the United States set up a land policy which, in effect, became a forum of legalized misappropriation of the Indian estate, the government became morally responsible for the damage that has resulted to the Indians from its faithless guardianship."

The tribes in the Yucca Mountain region still maintain close historic and cultural ties with the land. The total ecosystem is a living entity and the spirits and beings that dwell there to this day are still meaningful to them and as real and vivid as you and I and the people in this room. Many tribal people indigenous to the Yucca Mountain region have informed DOE officials that this area has special meaning and expressed opposition to the project.

The Draft EIS does not go far enough to address cumulative impacts which are likely results because of past present and future impacts from NTS activities. For instance, the DOE mentions a proposed federal action to return certain lands of the Timbisha Shoshone. An important factor left out regarding this return is that the land was subjected to years of radioactive fallout from the Nevada Test Site. The amount of radiation exposure experienced by the indigenous people residing in the area has not been assessed nor have any baseline health studies been conducted. The people still living in the area may have experienced significantly higher levels of exposure because of the many exposure pathways common to Native American peoples. The added impacts of long term releases from the transportation of radioactive waste and spent nuclear fuel can not be accurately calculated. The status of the Indian nation populations should give rise to a higher degree of assurance that they will be protected from increased exposures.

2. The status of the Indian nation populations should give rise to a higher degree of assurance that they will be protected from increased exposures. The Draft EIS does not go far enough to address cumulative impacts which are likely results because of past present and future impacts from NTS activities. For instance, the DOE mentions a proposed federal action to return certain lands of the Timbisha Shoshone. An important factor left out regarding this return is that the land was subjected to years of radioactive fallout from the Nevada Test Site. The amount of radiation exposure experienced by the indigenous people residing in the area has not been assessed nor have any baseline health studies been conducted. The people still living in the area may have experienced significantly higher levels of exposure because of the many exposure pathways common to Native American peoples.

The absence of previous exposure data also is important regarding impacts of long term releases from the transportation of radioactive waste and spent nuclear fuel. A true picture of potential impacts from transportation exposure can not be accurately calculated unless information from past Nevada Test Site releases can be added to the projected exposure data.

A joint NCI/CDC effort to assess human health impacts from bomb testing at the NTS is currently underway. The people whose homelands are near the Nevada Test Site were subjected to multiple detonations of atomic weapons. This project affirms what Native American peoples in the area have known for years--that radioactive fallout caused significant negative health impacts which includes chromosomal damage, debilitating diseases, and mortality.

Utmost protective considerations must be accorded to the people indigenous to this area. An apparent conclusion or response to the Timbisha land return issue may be that the reservation is being created well after the Yucca Mountain has begun, thereby absolving the DOE of its trust responsibility. Once again, the Timbisha Shoshone have lived there thousands of years prior to any encroachment or intrusion of federal actions.

The fact of primary habitation of indigenous peoples, whom the federal trust responsibility is to protect, is an important point in regard to the divergence of opinion of ground-water protection requirements. The Native American tribes and citizens are entitled to assess the viability of the water protection issues. The DOE acknowledges that further studies of impacts are needed along transportation corridors. The tribes do not have emergency response programs in place and are isolated from federal, or other other assistance in emergency situation. At the pace and funding level proposed by current DOE officials charged with delivery of emergency preparedness program planning for corridor states and tribes, when the shipments commence, even several years from now, it does not appear that tribes will be ready. Tribal governments will continue to have unmet needs and unfunded mandates.

3. The potential adverse impacts regarding transportation include cultural integrity, health, and economic considerations. The existing transportation routes and construction of new rail and highway infrastructure could destroy significant cultural sites. Even though mention is made that preconstruction surveys may occur, modification or relocation of these routes would not necessarily happen based on the Department's assessment of whether rerouting is "reasonable." Tribal importance of cultural integrity becomes secondary to the whims of DOE archaeologists and anthropologists, It is an important point that the archaeologists and anthropologists conducting the studies and surveys are non-Indian and, it is our understanding, not from the Yucca Mountain region.

The DEIS does not include information regarding Indian nations and their current and future economic development initiatives. Tribes along potential corridor routes are investing in tribal and joint economic ventures and which facilities will be along highway transportation routes contained in the DEIS. As part of the trust responsibility to ensure protection of economic well-being of Indian nations, the document needs to include a section of what can be done in the event of a radioactive waste transportation accident which impacts an Indian tribe as the mitigation and liability circumstances can be quite different than state and local government considerations.

4. The DEIS mentions Native American beliefs, working group input, and concerns. The document does not appear to incorporate the cultural beliefs into the analysis, which can only mean that the DOE does not accept the belief systems of the indigenous cultures. The DEIS also does not go very far in explaining the trust responsibility and how that will be carried out in the event of disagreement in project implementation. Although some of the problems may be guided by existing regulations and statutes, there are many instances of disagreement and need for consultation with tribal leaders and decision-makers regarding resolution of these differences. What shape and form the tribal consultation procedures will be and how executive orders on consultation will be implemented into the process are not included in the document.

Procedures will be and how executive orders on consultation will be implemented into the process are not included in the document.

SACRED SITES AND MILITARY LANDS/ACTIVITIES
Vine Deloria, Jr.

Reporting the presence of sacred Native American sites on, near, or possibly influenced by U.S. military lands is circumscribed by several important considerations. These considerations will be discussed as they relate to the identification of sacred sites. Sites will then be identified and the appropriate cultural and historical background and tribal affiliation with the site will be provided. In order to avoid the specter of appearing to be the definitive authority on these locations, the phrase "appears to be" will be used in identifying and discussing the locations. In that way, should conflict arise in the future over the nature of the location, its importance, or the ceremonies which might need to be conducted there, sufficient flexibility is provided for the introduction of clarifying information.

To avoid any suggestion or inference that locations or background materials regarding any particular sacred site is being revealed without authorization from the proper traditional Native American spiritual authorities, citations and bibliographic entries are limited to secular sources which could be located by any scholar or interested person from published materials available in a major library or archives. Specific information on the nature of the ritual activity, or importance to the tribe, must be obtained from traditional spiritual leaders of the tribe or tribes concerned.

Sacred Site Locations By State
The following is a discussion of sacred sites that are well known for various Native American groups. Well known sites have been chosen so that the goal of illustrating the geographic range and variety of sacred site types can be met without further revealing information about sacred sites. The following sacred sites are discussed by state and by generic tribal affiliation, Sioux, Paiute, Apache, Pueblo instead of the specific band or community where applicable. For those sites specific to a particular currently recognized Indian tribe, reservation or community which involve continuing ceremonial activity, the identification is site-specific if the information is part of the larger historical/religious heritage of the group and the data is already public information.

Shoshone
For the purposes of this report the Shoshone (Trenholm and Carley 1964) will be separated into two groups: desert people and mountain people. Culturally some scholars such as Walker (1993b) divide the Shoshone into eastern and western branches and the political history of these people suggests such a classification. Here "desert and mountain" characterizations will be used primarily because we are also dealing with the geography of the region and the kinds of sacred places to be anticipated. Like the Paiute, the Shoshone ranged over a very large territory, in fact approximately the same territory that now includes western California, Oregon, Nevada, Utah and Idaho. The eastern branch of the Shoshone Nation were primarily mountain people and occupied lands far into Wyoming and Colorado. The largest Shoshone reservation, in fact, is the Wind River reservation in Wyoming. Today desert Shoshone live at Duck Valley and mountain Shoshones at Fort Hall. The Shoshone were once part of a much larger group that included the Comanches before that segment of the nation migrated south along the front range of the Rockies. Consequently in terms of creation and migration traditions, Idaho may have some locations that relate to the Comanche.

The more immediate concern in this report is the southwestern portion of Idaho where there are Air Force activities and lands and where there is still considerable ceremonial life represented by the traditional people of Duck Valley. Fishing Falls, between Jerome and Falls was a traditional fishing site for these people and consequently mountains and springs in the vicinity have the potential of being sacred locations where first salmon ceremonies and healing rituals were performed. Indian Meadows in Owyhee County was a summer meeting location for many of the Shoshone bands and probably a site where important rituals were conducted on behalf of several groups of Shoshone.

The major problem in southwestern Idaho is the close fly-overs within the Owyhee/Paradise Military Operations Area. Some areas in southern Idaho are described as "high intensity operating areas" and the nature of the military use produces massive sonic booms which disturb ceremonial activity and may inhibit growth or plant and animal life in the region. Some Indian reports suggest that planes fly as close as 100 feet from the ground and substantially disrupt even secular activities in the region.

In Owyhee County there is a geologic formation known as the Jarbidge Canyon and River and the location has the connotation of something mysterious and evil. Frequently medicine men of a tribe would suggest the presence of evil to inhibit tribal members from entering certain kinds of locations. Squaw Meadows, also in Owyhee County, is the site of a massacre of an Indian camp and memorial services are conducted here on a fairly regular basis for the deceased killed and buried there.

The Mountain Home Air Force Base administers an area known as the Saylor Creek Range on which missiles are dropped or fired. There are undoubtedly native burials within this range although current archaeological surveys have not yet discovered any. Since there is an annual cleanup of the area, there is a good possibility that burials will be discovered in the future. The Mountain Home Air Force base proposed bombing range affects the Shoshone and Paiute people of Duck Valley. Further east the DoD Idaho National Engineering Laboratory, which has the participation of Navy in some projects, affects the Shoshone and Bannock people of Fort Hall. Idaho would be an excellent place to develop long-term working agreements with the Indian tribes on the sacred sites protection subject.

Owhyee County has a number of pictographs, one prominent site at a location called Indian Bathtub which also has a spring that was used for healing purposes. In Idaho County on Indian Creek are another set of pictographs which may relate to the Owhyee site. If the connection holds, and there is every reason to believe these sites are linked together ceremonially, migration and creation traditions are involved. Nat-Soo-Pah warm springs in Twin Falls County was a primary healing spring and this location may be linked in the oral tradition to the other two sites. Within the Shoshone-Bannock religious traditions, vision questing is done at sites having pictographs and most of the locations which have these markings are also used on occasion by the traditional native people from both Fort Hall and Duck Valley.

Table Rock in Ada County is an important native location. Its Shoshone name means the place to build fires at certain times suggesting annual ceremonies comparable to the Sun Dance or Bear Dance of other tribes. Defining the site more precisely would require comparing the summer rituals of the desert and mountain Shoshone and determining from which geographical area participants in the ceremony were drawn. This site could quickly become controversial because there are indications that the location has great significance for the Shoshone. It would be an excellent choice to develop a working agreement between Shoshone tribal governments, the state agencies, and the DoD.

Julian Steward (1943) reports a memory of the great ice sheets that may indicate Shoshone presence in the Great Basin desert during one of the Pleistocene glacial advances on the Snake River, suggesting Shoshone activity in the Idaho are can be measured in tens of thousands of years. The Shoshone claims may one day be as well understood as contemporary Hopi claims to antiquity.

Fortunately efforts are already under way to establish working agreements between the Air Force and the traditional Shoshone-Paiute people at the Duck Valley Reservation which spans the Nevada-Idaho border (see letter from Mountain Home Air Force Base, Appendix J). The definition of the network of sacred sites which will require protection or require access for ceremonial purposes will depend in large measure on which ceremonies and rituals have become dominant in Shoshone religious life. Some locations will certainly have become secularized over a long period of time. Nevertheless many religious practices have been kept alive by these people and there is every reason to anticipate considerable activity to preserve sacred locations.

Indians cast ballots on cash question
By ADELLA HARDING, Staff Writer
Elko Daily Free Press
June 03, 2002

ELKO - Eighty Western Shoshone had cast ballots by 9:45 a.m. today in the straw vote to say whether they want 100 percent cash distribution of more than $138 million in a claims settlement fund.

"So far we're getting a good response," said Rena Premo, an election helper at the Elko Indian Colony Gymnasium, while outside protesters were setting up a table and arguing with Bureau of Indian Affairs police about their right to be there.

Premo said there will be an unofficial count of the votes in the gym after polls close at 7 p.m. and an official count at 6 p.m. Tuesday night.

Election instructions state that all ballot boxes from all the Western Shoshone voting places must be sent to the Te-Moak Tribal administration building, after informal counts at each site.

Lois Whitney, one of those organizing the protest in a corner of the gym parking lot, said Te-Moak Chairman Felix Ike wanted them to leave this morning, but "we don't feel he has the authority to stop the protest. He's not Hitler."

Premo said, however, that she felt as long as the protesters weren't stopping any voters from coming in the door, "it's not a big deal."

BIA Officer Robert Hodge said the police were "waiting for guidance," before taking any action regarding the protesters.

The issue is whether Western Shoshone want the cash, which could amount to roughly $20,000 per person, or should hold out for a different plan for the cash distribution or should refuse the money all together.

"We need to come up with a good plan that works for us," said Leta Piffero, who was at the protest area this morning.

One of those heading into the gym to vote, Gracie Begay of Wells, said she hates to see the Western Shoshone divided over the settlement issue.

"It's a sad day because this is it," she said, but Begay also said the people have the right to vote, and she wouldn't disclose how she would vote.

Begay also said she is concerned about the Western Shoshone losing rights in light of the seizure of 157 of Raymond Yowell's cattle late last month from land management by the U.S. Bureau of Land Management.

BLM seized the cattle and sold them at auction to use the money for back grazing fees. The cattle were on public land in Spring Creek near the South Fork Indian Reservation.

Harold Whitney Jr. said as he left the gym after voting that he felt it was important for the people to vote today to make their voices heard. He opposes the cash distribution and believes many of the Western Shoshone don't understand the issues.

"They think just about the money. They think we've already sold out. We want more. It's basically just peanuts," he said of the settlement money.

Nancy Stewart of Fallon, who was on the steering committee involved in the 1998 straw vote and the bill Sen. Harry Reid, R-Nev., and Sen. John Ensign, R-Nev., co-sponsored on cash distribution, said last week she felt the majority of Western Shoshone want the cash.

Lois Whitney said today she believes Stewart is "selling us out."

Opposition earlier urged Reid to call off the election, but Reid's press secretary, Tessa Hafen, told the Associated Press Friday that Reid wouldn't step into the election dispute.

"This is something the tribe needs to work out among themselves," she said.

Hafen said today that Reid is "not advocating they vote one way or another, and he will move foreward legislatively according to how they vote."

Reid, who is on the Indian Affairs Committee, had advised Ike about the wording of today's ballot, which asks Western Shoshone for a yes or no answer on cash distribution.

The balloting today was scheduled because Reid was concerned the 1998 straw ballot wording would negate the results. That balloting showed a majority wanted cash distribution, but included a clause on Indian rights.

Reid maintains a U.S. Supreme Court ruling and the claims settlement money make it clear the Indians lost their claim to millions of areas of land in Nevada and bordering states, and he urged Ike to include a statement to that effect on the new ballot.

The settlement money is over the Ruby Valley Treaty of 1863 that opponents of cash distribution say never gave away any land but was a treaty of friendship.

Whitney claims Reid is deceiving the people and trying to trick them into giving up their land for money, and the handout protesters printed for today states that people should vote no because Reid's bill would buy out their land.

"Many of our members know that our tribe struggles with no land to build homes and businesses or to practice our own cultural and spiritual traditions," the handout reads.

"Our cattlemen have been fighting over the right to graze livestock on Shoshone land. We can not plan our own open recreation or to fish, hunt and gather our foods and medicine because this opportunity will be gone if S.958 passes," the handout continues.

Shoshone say yes to cash distribution
By ADELLA HARDING, Staff Writer
Elko Daily Free Press
June 04, 2002

ELKO - Although the tally is unofficial, Western Shoshone Indians voted 1,600 yes to 222 no on Monday for 100 percent cash distribution of more than $138 million in claims settlement money.

"It's overwhelming," Te-Moak Tribal Chairman Felix Ike said this morning.

The Te-Moak Tribe voted 910 to 200 and the other preliminary counts provided by Ike and the Associated Press were even more overwhelmingly in favor of the cash distribution, with Duck Valley Western Shoshone at Owyhee voting 152 yes to 9 no and the Fallon Western Shoshone voting 176 yes to 1 no.

The Ely Western Shoshone voted 142 yes to 9 no, and the Yomba voted 72 yes to 2 no, while Duckwater voted 148 yes to 1 no for cash distribution.

"There can't be any doubt in anybody's mind," Ike said of the vote tallies that included absentee ballots from as far away as Georgia and New York, adding that roughly 1,100 Te-Moak people voted out of a membership of 2,400 to 2,500, including children.

Only those 18 and older could vote, however, "so you're looking at a pretty good voting turnout," Ike said.

A final tally of the votes from all the tribes will begin at 6 p.m. today at the Elko Indian Colony Gymnasium, where the preliminary Te-Moak count continued until about 2 a.m. today.

A couple dozen people gathered for the count that started at 7 p.m., but nearly all of them had left by 10:30 p.m. and it was obvious then which way the vote was going, although the nay votes were higher than in a 1998 straw vote.

At that time, 1,230 voted in favor of cash distribution and 53 against it, but a clause that stated acceptance of cash distribution didn't prohibit future claims led Sen. Harry Reid, D-Nev., to postpone a hearing in March on a cash distribution bill and suggest a new vote.

"It looks like we made a difference," cash distribution opponent Lois Whitney said as she left after witnessing the first couple hours of counting.

She was among a group of protesters who had a table in the parking lot during the balloting and stayed all day. Ike said he didn't have a problem with protesters, as long as they stayed away from the door to the gym.

"Bottom line given a choice of yes or no for money, it doesn't take a rocket scientist to know they will say yes," Leta Piffero, who was among the protesters, said this morning. "We'll keep educating people and moving forward, and hopefully make a difference before it is too late."

Ike said the final tally will be sent to Reid's office, and then it is up to the senator to decided what to do with the pending Senate.

"Based on these initial numbers, there clearly is overwhelming support to move forward with distribution," Reid's press secretary, Tessa Hafen, said this morning. "Sen. Reid will act accordingly, based on this vote."

The settlement issue is over the Ruby Valley Treaty of 1863 that opponents of cash distribution say never gave away any of the Western Shoshone's more than 23 million acres that stretched across Nevada and into neighboring states but was a treaty of friendship.

Reid said earlier a U.S. Supreme Court ruling and the Indian Claims Commission settlement in 1979 make it clear the Western Shoshone no longer have land claims. The Indian Claims Commission set aside $26 million in 1979 and the money grew with interest to the more than $138 million total now.

"The bill was never meant to be over land issues," Hafen said.

Ike also said this morning that while critics question what authority he had to call the election, he "was just the messenger" for the Western Shoshone people who looked to him to get the ball rolling after the hearing was canceled in Washington in March.

"If no one else took charge, we would still be sitting here looking at each other. Others were looking to Te-Moak to take charge," Ike said.

Another voter said Monday she felt a number of Western Shoshone weren't notified of the election.

"Twelve in my family were never notified," Carla Platerio said.

The election clerk, Jennifer Saunders, said they sent out 419 absentee ballots, and she was opening both Te-Moak and Duck Valley absentee ballots Monday night and early today.

The ballots included two other questions, but the final tallies on those questions won't be available until after tonight. One question asked whether only those one-quarter Western Shoshone or more should receive the cash from the $138 million settlement fund. The other asked if they wanted an education fund set up with two smaller claims funds.

The education question appeared fairly close, but most approved the one-quarter question.

For instance, in an informal Te-Moak count at 10:30 Monday night, before all the absentee ballots were opened, there were 501 yes and 117 no votes to the cash question, 496 yes votes to the one-quarter question and 119 no votes, and 312 yes votes on the education fund and 202 no votes.

Groups endorse plan to end public lands grazing
By JEFFRY MULLINS, Associate Editor
Elko Daily Free Press
March 01, 2002

ELKO - More than 75 organizations, including some that receive federal funding, have endorsed a plan to end livestock grazing on federal lands in the West.

The plan was unveiled last fall by National Public Lands Grazing Campaign and would involve purchasing grazing permits from ranchers, then permanently retiring the permits.

Special legislation would be needed in order for the group to accomplish its goal. Meanwhile, letters have been mailed to the approximately 25,000 grazing permittees to introduce them to the buyout proposal and ask for their support.

"Some ranchers have already voluntarily relinquished their grazing permits to the government in exchange for compensation from third parties, and we believe many more would sell their permit interest to the government and retire the associated allotments from grazing," NPLGC reports on its Web site, www.publiclandsranching.org.

Mark Salvo, attorney for the group, also works for American Lands Alliance, a Washington, D.C.-based group that has threatened to petition for listing of the sage grouse as a federally protected species.

At a RangeNet conference last fall, Salvo told the audience grazing takes place on 270 million acres of federal land, which is "a significant land area." But he said the number of ranchers using the land is "insignificant" and contributes less than a tenth of one percent to employment in the West.

American Lands is one of the endorsers, along with Western Watersheds Project (Idaho), Alliance for the Wild Rockies (Montana), Forest Service Employees for Environmental Ethics (Oregon), Humane Society of the United States (Washington, D.C.), Wild Utah Project (Utah), The Wildlands Project (Vermont) and 70 other groups.

An article by Salvo and Andy Kerr of The Larch Company says, "Domestic livestock grazing (mostly beef cattle) have done more damage to North America than the bulldozer and chainsaw combined. Not only have livestock been degrading the landscape longer than developers, miners, and loggers, they have grazed nearly everywhere. Yet, the conservation movement has paid scant attention to this issue, even on federal public lands where livestock mow through 257 million acres annually."

Buying out the grazing permits would be cheaper for taxpayers than allowing grazing to continue, they say.

Others on the group's steering committee are Katie Fite of the Committee for Idaho's High Desert, John Horning of Forest Guardians, Bill Marlett of Oregon Natural Desert Association, Jon Marvel of Western Watersheds Project, Randi Spivak of American Lands Alliance and Martin Taylor of the Center for Biological Diversity.

Some of the groups endorsing the plan have received federal funding. These include California Trout, based in San Francisco; Land and Water Fund of the Rockies; and World Wildlife Fund.

NPLGC is preparing to publish a book titled "Welfare Ranching: The Subsidized Destruction of the American West," due out this summer.

OPENING NOTES - Medicine Voices:
This next article is presented to show what activities the BLM is envolved in and how they too are being handled. There is a pattern. They are operating on an agenda that constantly suggests and implies "Top Secret" from the Department of Interior.
Read this article and then look around Nevada again with other issues involving the BLM.

Environmentalists file suit against BLM office
By ADELLA HARDING, Staff Writer
Elko Daily Free Press
June 06, 2002

ELKO - Great Basin Mine Watch filed a lawsuit in U.S. District Court in Reno on Wednesday against the U.S. Bureau of Land Management's Battle Mountain office over denial of access to documents on the Phoenix Project.

The lawsuit, the first of its kind for the environmental organization, is a response to BLM's denial of a Freedom of Information Act request regarding the project proposed by Newmont Mining Corp.

"The lawsuit has to do with our request to see communications between Newmont and BLM," said Great Basin Mine Watch Executive Director Tom Myers, who added that the organization is questioning whether BLM is in industry's pocket.

"This is a governmental accountability lawsuit," he said in a telephone interview from Reno.

Myers said he wants to know who wrote responses to Great Basin Mine Watch's comments on the final environmental impact statement - Newmont or BLM - because they were "so dismissive."

Gail Givens, assistant field manager for the Battle Mountain BLM office, said Wednesday night he had just learned about the lawsuit, but he said his office had denied a FOIA request from Great Basin Mine Watch "based on the deliberative process."

He said BLM doesn't make documents public while they are still in the process of finalizing an EIS and record of decision because they are drafts at that point.

"A lot of documents generally aren't made available until the record of decision is made," said Givens, who also reported he wasn't aware Great Basin Mine Watch had appealed the FOIA request to the U.S. Department of Interior, which also denied the request.

"They're treating it like interagency communications," Myers said.

He said, however, that should BLM make the communications available when the record of decision is released, the lawsuit would become moot at that point.

Givens, who was in Crescent Valley for an open house on Cortez Gold Mines' proposed Pediment open pit mine, said Great Basin Mine Watch is "entitled to their opinion."

He also said he disagreed with the group's allegation that the mining industry controls BLM.

Western Mining Action Project attorney Roger Flynn also alleged in the joint statement that BLM's position on the documents "is laughable, except that it shows just how cozy the BLM has become with the big gold mining companies in Nevada."

Flynn is Great Basin Mine Watch's attorney.

Newmont spokesman Doug Hock said from Denver that although the lawsuit concerns one of Newmont's proposed projects, "the matter is between Great Basin Mine Watch and BLM so I really can't comment."

BLM already is dealing with another snag in the Phoenix approval process, coming from the U.S. Environmental Protection Agency's Region 9 office, and Hock said he couldn't comment on the delay in project approval, either, because "it's in the hands of the regulators."

Givens said the Battle Mountain BLM office tried to work with EPA over the amount of a trust fund Newmont would set up as additional protection to help cover reclamation costs at Phoenix should the company ever go bankrupt.

EPA has now gone to the BLM headquarters in Washington over the disagreement, and Givens said he understands there will be a meeting there over the trust fund. BLM is waiting to see what happens before issuing project approval.

The final environmental impact statement was released in January.

Basically, Newmont agreed to a $1 million bond now and to fully fund the trust later under a complicated formula using a base figure of $400,000 cash plus interest accrued for 20 years, which could be close to $1 million, depending on interest rates.

This trust fund is on top of reclamation bonding money, Givens said.

EPA is concerned enough about the Phoenix proposal to threaten to take the final impact statement to the Council on Environmental Quality "unless we change the contingent long-term funding numbers for the project," Givens said. "They feel the estimates are totally inadequate."

Battle Mountain BLM disagrees with EPA and believes "we have an environmentally sound project," he said.

Myers said the trust fund issue is another reason Great Basin Mine Watch wants to see the documents leading up to the final environmental impact statement and regarding comments that came in after the final statement was released.

He also said he believes Newmont shouldn't mine at all at Phoenix because stirring up the mine site would create more acid rock drainage and require never-ending treatment of contaminated drainage.

"It's an extremely contaminated site. We don't believe they can move rock without problems," Myers said.

Both EPA and Great Basin Mine Watch questioned the adequacy of the trust fund due to the length of time treatment would be required, Myers said, adding that an outside consultant estimated at least $9 million should be put in trust based on current plan assumptions.

The consultant brought in by Great Basin thought $49 million would be needed, however, based on what he felt was more likely to occur at the site, according to Myers.

EPA wrote in its comments on the draft environmental impact statement on Phoenix that the site is so contaminated that in the absence of financial guarantees for cleanup "in perpetuity," it considers the proposed project unacceptable because of water quality concerns.

The Battle Mountain Complex is an old mining site, where individuals and companies have extracted copper and gold for more than 100 years, including from underground and surface workings, even dredging.

The property also includes tailings ponds and waste dumps that predate the 1981 federal law requiring reclamation, according to Jon Sherve, who one of the project coordinators on Phoenix for BLM.

Newmont isn't required at this point to clean up the pre-1981 tailings and dumps, but the company has agreed to reclaim them under its plan for the Phoenix Project, along with other long-time disturbance, Sherve said.

Newmont plans to develop two new open pits and expand two existing pits for Phoenix to mine for gold and copper, as well as process stockpiles of gold ore and expand heap leach and waste rock facilities.

The plan also calls for a mill but Newmont is looking at an alternative. The company might acquire Echo Bay Mines' McCoy/Cove property to the south and use the mill there. Newmont hasn't made a decision on that option, however, Hock said.