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Summit cyanide ban challenged

Bob Berwyn
Summit County correspondent
Vail CO, Colorado
Bob Berwyn/Summit DailyA local ban on cyanide mining would prevent mining companies from revisiting old mine sites and using a potentially risky open-pit method to try and extract gold from piles of tailings and waste rock.
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DENVER, Colorado ” The Colorado Supreme Court on Tuesday took on the question of whether a Summit County ban on cyanide-based gold mining is constitutional, probing the boundary between state and county authority.

Attorneys for Summit County and the Colorado Mining Association made oral arguments in a case stemming from the county’s 2004 adoption of strict regulations that forbid mining operations from spraying a cyanide solution over heaps of low-grade ore to extract remnant gold.

Colorado law gives the state “exclusive authority” to regulate mining, said attorney Paul Seby, presenting the mining industry’s challenge to Summit County’s land-use powers.

Not true, countered attorney Josh Marks.

“We believe very strongly the county properly enacted its land use authority … There just is land-use authority, or there isn’t,” Marks said.

“We’re saying those types of mining activities are inappropriate, just like hydraulic mining,” he said, referring to the historic practice of washing away entire hillsides with high pressure water jets to expose gold ore.

Arguments in the case hinged on a provision in Colorado mining law that addresses both state and local permitting power.

The mining industry asserts that modern safeguards allow for cyanide mining to be used with minimal risk. Summit County’s ban of a method that is authorized by state law goes far beyond a county’s power to regulate land uses, Seby said.

He cited language in the law that characterizes mining as “necessary and proper activities,” and argued that the state’s role is to “foster and encourage … orderly development of the state’s natural resources.”

Seby pointed out that the statute prohibits any entity other than the Mined Land Reclamation Board from issuing mining permits or requiring reclamation standards different from those established by the mining law.

But in another section, the same law specifically states that mining operations are subject to local land-use authority, Marks replied. Just because the state powers are stated first, doesn’t make them any more valid, he added.

Without tipping her hand, Chief Justice Mary Mallarkey asked the attorneys whether the Summit County rules establish an absolute ban on cyanide mining, or whether the rules would permit cyanide to be used in some other form.

Heap-leach mining is the only cost-effective use of cyanide for extracting gold from low-grade ore, Seby answered.

Justice Greg Hobbs explored the intersection of state and local power, asking whether the state mining board has the authority to ban cyanide heap-leach mining.

Seby said the board couldn’t enact a blanket ban but makes site-specific decisions based on individual mining-permit applications.

Hobbs also questioned the wide-ranging nature of the county regulations, saying that the mining rules don’t address areas traditionally covered under local land-use powers including the protection of waterways and wetlands.

“This is kind of an eye-opening exercise of county authority,” Hobbs said.

Marks said Summit County is primarily concerned about the catastrophic consequences of another Summitville-type disaster ” the nation’s worst cyanide spill that contaminated 17 miles of the Alamosa River and required a massive federal cleanup ” and said that regulating potential impacts to streams are part of a county’s traditional land-use powers under state law.

The state mining board is not set up to determine local land uses, Marks said.

“It doesn’t have a mechanism to determine the appropriateness of this type of mining for the surrounding areas,” he said. “…The county basically said the risks of this type of mining are too great.”

The justices also raised the point that there have been similar issues with oil and gas drilling, as well as uranium mining.

“Here’s the thing: Whenever the legislature is confronted with this controversial thing, they didn’t ban it. They gave the board the authority to regulate it,” Hobbs said.

“Where does the county get the authority to override this careful look by the legislature?”

Local powers determine where and if mining should occur, while the state regulations are in effect to say how the mining should be done once it’s approved locally, Marks responded, trying to outline the line between state and local authority succinctly.

Attorneys for the county have fiercely fought through three rounds of court cases for the right to prohibit cyanide heap-leach mining. Summit County District Court Judge David Lass overturned the county regulations in 2005. The Colorado Court of Appeals subsequently reinstated the cyanide ban in 2007, leading to this week’s test in the Colorado Supreme Court.

The county commissioners adopted the ban to protect local watersheds from the risk of a cyanide spill and to protect the health and welfare of citizens, said former County Commissioner Bill Wallace.

Colorado Counties, Inc. has backed the Summit County regulations.

“I voted for it (the ban) because the mining industry couldn’t convince me there weren’t any risks,” Wallace said.

During hearings on the regulations at the time, mining industry officials acknowledged that they couldn’t guarantee there won’t be any release of the poison into the environment.

There are no current proposals or plans for cyanide heap-leach mining in Summit County, but if the price of gold reaches a certain level, it could become economically viable for a mining company to re-work some of the ore and leftover rock extracted during historic mining operations.

But the case is being watched closely. Affirmation of the local ban could lead to widespread restrictions.

Four other counties already have enacted similar regulations, including Conejos County, in south-central Colorado, home to the Summitville complex. Clean-up costs there have climbed to more than $150 million.

In Montana, voters twice approved a statewide ban on cyanide mining. The mining industry lost a challenge to the prohibition in the Montana Supreme Court and failed in its bid to have the U.S. Supreme Court hear the case.

Bob Berwyn can be reached at (970) 331-5996, or at bberwyn@summitdaily.com.


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