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Western Shoshone Prevail at Ninth Circuit Court on Mining Sacred Land

by December 6, 2009

In a major ruling this week, the federal Ninth Circuit Court of Appeals blocked construction of the largest open pit gold mine in the United States, Barrick Gold's Cortez Hills gold mine.

Reversing a January 2009 ruling by the U.S. District Court, the Ninth Circuit concluded that enjoining the mine was in the public interest because of the “irreparable environmental harm threatened by this massive project.”

In part, the mine would:

* Disturb (devastate) 6,792 acres of land, including a heap leach and waste rock facilities covering much of the Horse Canyon pass just south of Tenabo, and extending east into Grass Valley
* Pump groundwater from around the pit with an average dewatering rate of approximately 1.8 billion gallons per year for ten years to keep it dry for mining
* Create a drop in the water table of 1,600 feet surrounding the pit, decreasing to 10 feet at 3-4 mile radius of the pit
* Potentially impact the 50 springs and seeps in the project area with 28 in the Horse Canyon area; however, according to the BLM draft analysis none of the 28 springs are expected to be impacted.

The Ninth Circuit Court also found that the Plaintiffs---the South Fork Band Council of Western Shoshone, the Te-Moak Tribe of Western Shoshone Indians, the Timbisha Shoshone Tribe, the Western Shoshone Defense Project, and Great Basin Resource Watch (GBRW)---would likely succeed in their claims that the US Bureau of Land Management (BLM) violated public land laws and environmental laws when it approved the project one year ago.

“We are pleased with the Ninth Circuit’s ruling,” says Larson Bill, a Tribal Council Member from the South Fork Band Council and Te-Moak Tribe. “This is a result of Western Shoshone people remaining committed to protecting our land and environment. It is unfortunate that the company decided to push this forward without addressing all concerns, especially those of the Shoshone people."

In addition to the environment, Barrick Gold's project would severely undermine the Shoshone's culture and Spiritual practices.

Located in the traditional territory of the Shoshone Nation, Mount Tenabo is " considered a traditional locus of power and source of life, and figures in creation stories and world renewal," notes one report by BLM. "As the tallest mountain in the area – the most likely to capture snow and generate water to grow pinon and nourish life – it is literally a life-giver. Water is to earth what blood is to the body, and these subterranean waterways are likened to the earth’s arteries and veins"

It is also paramount to Shoshone creation stories, Spirit life, and several medicinal and ceremonial plants. The region is still used regularly by the Shoshone for medicine gathering, hunting rituals, fasting and other spiritual practices.

In their appeal, the plaintiffs argued that Barrick Gold's mine would violate the Western Shoshone's religious rights and "permanently eliminate" their religious and cultural uses in and around the site.

Unfortunately, the Ninth Circuit deferred to the U.S. District Court's decision, which found the mine would not cause a "substantial burden" to the Shoshone's religious experience because they would continue to have access to the top of Mount Tenabo.

During the court's proceedings, "Barrick and the BLM argue(d) that archaeological surveys prove the mine site is not a sacred site and while there is evidence of religious activity at the top of Mount Tenabo, at the White Cliffs and in Horse Canyon, none appears where the open-pit mine is being developed," explains Amy Corbin, in her 2007/09 report on Mount Tenabo for the Sacred Lands Film Project.

However, "paying attention only to archeological sites — excavating them and then conveying artifacts to museums or universities — is not the same as protecting living spiritual practices, of which there are often not material traces" she continues. The decision itself "points clearly to the fact that the current U.S. religious freedom laws do not take into account the practices of land-based spirituality."

Nevertheless, with the Ninth Circuit's injunction, there's a small chance the region can still be safeguarded for future generations.

That is, providing the US Government can put Barrick Gold in its place. Just one day after the ruling, the company announced that it will not cease construction of the gold mine.


For more information on the Cortez Hills Project, Mount Tenabo, and the legal challenge go to and The Ninth Circuit Decision can be downloaded at:

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