Peak & Prairie

Rocky Mountain Chapter's
Online Newsletter
April / May 1998

Earthlaw Racks up Successes in Protecting Colorado Environment
by Mark Hughes, Earthlaw Executive Director

Earthlaw is a public interest environmental law group in Denver. It represents grassroots environmental groups, including the Sierra Club, around the country but primarily in the West. Founded by Mark Hughes, who often represented the Sierra Club Rocky Mountain Chapter while working for the Sierra Club Legal Defense Fund (now called Earthjustice), Earthlaw also runs the University of Denver College of Law's environmental law clinic.

Earthlaw's lawyers have been busy recently on several Colorado issues: working to stop the proposed gravel mine at Rocky Flats, challenging EPA's approval of Colorado's plans to control air pollution in Denver, pressing for protection of the Preble's Jumping Mouse as an endangered species, urging the Forest Service not to build a small part (23 miles) of the Continental Divide Trail through Alpine tundra and attacking Colorado's polluter secrecy law.

Denver Post's Sloppy Sierra Club Slur

The Sierra Club's polluter secrecy/audit privilege petition to the Environmental Protection Agency finally bore fruit. EPA notified Governor Romer that Colorado's audit privilege law conflicts with the federal Clean Water Act and that the state must change its law.

The Sierra Club's success led the Denver Post to editorialize that the Sierra Club is afraid the bill will interfere with the Club's anti-pollution lawsuits. The Post is partly correct. We do believe the secrecy bill will interfere with the Sierra Club's suits. And we believe this is a big problem because the Sierra Club is probably the most important enforcer of pollution laws in Colorado. Having to depend on Colorado's "user friendly" Department of Health, Colorado's environment would undoubtedly suffer.

Unfortunately the Post got one thing unforgivably wrong. The Post suggested that the Sierra Club's interest in getting rid of the secrecy law is financial. It pointed out that many pollution laws require polluters to pay the Sierra Club's attorney fees if the Club wins.

What the Post missed is that, although the Sierra Club might be entitled to fees or a share of penalty money, the Club itself has never taken a nickel from a pollution case. Although its attorneys have received fees for their services, the Sierra Club has repeatedly placed its "share" of penalty money into environmental mitigation and improvements.

The Club has directed well over $140 million to environmental projects and mitigation in the Yampa Valley, Commerce City, Denver and Golden. Those projects include an addition to Golden Gate Canyon State Park, stream restoration projects in Golden and Denver, planning and construction of the Sand Creek Greenway, cleanup in Commerce City's oil-sotted "devil's triangle," air pollution control at the Hayden power plant, open space preservation in Routt County, hundreds of wood stove retrofits to protect the Yampa Valley's air and an outdoor education center for inner city children in Denver.

Gold Strike!--Black Hills Gold Mine Stopped

I am pleased to report that Earthlaw stopped a major gold mine planned for the Black Hills National Forest in South Dakota. Earthlaw represented the Sierra Club, a coalition of other grassroots environmental groups and the Lower Brule Sioux Tribe.

Our friends at Western Mining Action Project, who worked with us on the case, tell us this is the first time anyone has won an administrative challenge to a mine approved under the infamous General Mining Law of 1872.

Some things get better with time; some don't. Wine ages; milk rots. Laws are the same way. Some age well--the Constitution, for instance; others become absurd. The General Mining Law of 1872 is one of the latter. Passed to encourage Western settlement in the mule, pick and shovel days, the 1872 law gives anyone who discovers a valuable mineral deposit on public land an almost absolute right to mine that deposit, take the profit and even keep the land afterwards--all for next to nothing.

It might not have seemed like such a bad idea back in 1872. After all, how much damage could a fellow with a pick and shovel, even with a burro, do to the untracked western wilderness?

Today, however, things are vastly different. New "cyanide heap-leach" technology allows modern miners to go after low-grade ore deposits that were ignored in the gold rush days. Low-grade ore can't be profitably mined with tunnels, so today's gold mines are strip-mine. The end result of a modern gold mine is a really big pile of cyanide-laced rock and a really big hole in the ground. Miners reduce entire mountains to huge piles of crushed rock. Then they spray cyanide on the piles to leach out tiny amounts of gold.

Giant holes and giant piles of poisoned rock are not great for the environment, and they are really hard on our national forests. The mine we stopped would have literally blown up acres of Black Hills National Forest to produce "waste-rock." "Long-term dirt storage" and access roads would have destroyed even more of the forest; a tailings impoundment would have filled in Ruby Gulch.

We were able to stop all this from happening mainly because the miners overlooked about the only requirement of the 1872 law: They must at least have discovered a valuable mineral deposit on the public land. In this case all the gold was on private land next to the national forest. They simply wanted to "use" the adjacent national forest for "waste rock," road construction, dirt storage and disposal of cyanide-laced mine tailings.

The Forest Service approved this giveaway, after a curious 10-page "analysis" of the environmental impact of the mine. The Forest Service reached the amusing conclusion that the mine would cause no significant impact to the forest, "with the exception of the creation of new landforms."

The modern application of the 1872 law allows a lot of environmental degradation that its authors couldn't possibly have foreseen. The only permanent solution is to get Congress to bring this law into the modern world. In the meantime, however, like the miners of old, we'll keep chipping away.

Suing To Protect 44 Imperiled Species

Recently headlines have been filled with reports of "compromising" behavior by high public officials. But it is another type of compromising behavior that has us upset, the Clinton Administration's compromises with the forces behind species extinction.

Earthlaw has acted to fix this problem by suing to force the government to comply with the Endangered Species Act (ESA). We asked a federal court to force Secretary of Interior Babbitt to decide whether to protect 44 imperiled California species (43 plants and a lizard) under the ESA.

These should be easy decisions for Babbitt to make. Many of the 44 species were proposed for listing by the Smithsonian Institution in the mid-1970s. Moreover, Secretary Babbitt proposed listing all 44 species during the Clinton Administration's first term. Nonetheless, he has missed by years the legal deadlines for making final decisions to protect these species.

Why? If you asked Babbitt, he would blame Congress for not giving him enough money. This is what he has repeatedly told the federal courts, but, the truth is, Babbitt hasn't asked for the money. Indeed, for the past two years, the Clinton Administration has requested only $5 million a year to list endangered species (about the price of five cruise missiles), half of what the Bush Administration requested in 1992. This is much less than is needed to protect endangered species.

What is going on? It's simple. Protecting species under the ESA makes some powerful people angry. The Administration has chosen to listen to those people rather than follow the law. Falsely blaming funding problems is an easy way to avoid making the hard decisions to protect species.

This policy of avoidance and appeasement is illegal and shortsighted. For a species tottering on the brink of extinction, delay often means death. The Administration should follow the law and base its decisions to protect species on science. It should not sell our natural heritage for the prospect of campaign contributions or for temporary political advantage.

NAFTA Environmental Enforcer Sacked

The Sierra Club was one of the few national environmental groups to oppose the NAFTA treaty. The Club argued that the much-trumpeted environmental provisions were toothless window dressing that would never be enforced. It seems the Sierra Club was right. Last month, two of the three NAFTA countries, Mexico and the U.S., teamed up to sack the head of the NAFTA environmental program, apparently for interpreting NAFTA's environment provisions too broadly. Reportedly the U.S. was upset by Earthlaw's successful efforts to use the NAFTA provisions to highlight the U.S. Army's de-watering of Arizona's last free-flowing river.

Earthlaw Has Moved

Earthlaw has moved to new quarters on the University of Denver College of Law campus. Our new address is: Earthlaw, University of Denver, Foote Hall, 1714 Poplar Street, Denver, CO 80220; (303)871-6996, (303)871-6991 fax; earthlaw@du.edu; http://www.earthlaw.org.