A hearing was held in federal district court on October 26 in Phoenix on the move by U.S. government and anti-mining groups to throw out suits over the Interior Dept. withdrawal of a million acres of federal lands from mineral exploration and mining [right, withdrawn areas bordered in red. Credit, BLM]. We've heard reports on the hearing from a couple of observers who were there. We haven't seen any news reports of the hearing.We understand the miners and mining proponents collectively had eight senior attorneys present; the federal government had one, who was described as young, with apparently limited experience. Our sources say that environmental groups in the audience were passing notes and papers to the federal attorney during the hearing.
The judge was described as "incredibly good, polite, attentive, intelligent, and had done his homework even though he apologized for not having read the briefs as thoroughly as he should have." He said he would have his decision in several weeks and would at that time set up future hearing dates -- from which some construed that he isn't planning on throwing out the combined set of cases from mining interests.
It appears that at this stage, the US/anti-miners position is that those who own claims had no damages from the 20-year withdrawal. The mining industry has to get past this move to have the case thrown out on the basis of no damages before they can argue the issue of the withdrawal itself.
If any other attendees have comments or observations on the hearing, I'd like to hear them.
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ReplyDeleteLee,
ReplyDeleteI was the first of the Plaintiffs to present my oral argument. My impression is that the judge had some issues with both parties positions.
The Judge seemed unimpressed with the Defenses contention that we were not injured. The Defense is claiming that we are not injured until we put forward a Plan of Operations for exploration drilling for a mining claim and go through a mineral exam and fail because we have not drilled it and already established a discovery. CATCH22. Then we would have had to appeal this negative mineral exam (after the claim was voided) to the IBLA and go through years of legal rangling, etc, etc. Then we would be injured!
By then the statute of limitations on contesting the withdrawal would have passed. It seemed to me that the Judge was having a hard time with that.
On our side, the Judge was having a hard time with many of us being within the "Zone of Interest of NEPA". I find that a bit difficult to understand myself as I beleive that my pleadings put me squarely within the Zone of Interest of NEPA.
If I am within the Zone of Interest of NEPA, then I will be able to litigate the sufficiency of the EIS itself.
If not, I will have to accept the EIS as written and Litigate the Secretary's ROD as arbritrary under the APA as not being supported by the EIS as written. In addition I have a constitutional question under the establishment claus that will most likely be litigated as well.
I was the first of the Plaintiffs to present my oral argument. My impression is that the judge had some issues with both parties positions.
ReplyDeleteThe Judge seemed unimpressed with the Defenses contention that we were not injured. The Defense is claiming that we are not injured until we put forward a Plan of Operations for exploration drilling for a mining claim and go through a mineral exam and fail because we have not drilled it and already established a discovery. CATCH22. Then we would have had to appeal this negative mineral exam (after the claim was voided) to the IBLA and go through years of legal rangling, etc, etc. Then we would be injured!
By then the statute of limitations on contesting the withdrawal would have passed. It seemed to me that the Judge was having a hard time with that.
On our side, the Judge was having a hard time with many of us being within the "Zone of Interest of NEPA". I find that a bit difficult to understand myself as I believe that my pleadings put me squarely within the Zone of Interest of NEPA.
If I am within the Zone of Interest of NEPA, then I will be able to litigate the sufficiency of the EIS itself.
If not, I will have to accept the EIS as written and Litigate the Secretary's ROD as arbitrary under the APA as not being supported by the EIS as written. In addition I have a constitutional question under the establishment clause that will most likely be litigated as well.
Gregory