Robert Congdon, who has owned 10 valuable mining claims in the White River National Forest in north-central Colorado since 1994 and, since 2007, has operated as Elbram Stone Company, LLC, which he founded, seeks to develop the White Banks Quarry, an alabaster, marble, and gypsum quarry located in Pitkin County, Colorado. Mr. Congdon operated pursuant to a plan of operations approved by the Forest Service in 1994 that restricted all activity to the May to November period; however, when, in 2003, he sought authority to operate year-around, the Forest Service delayed and all mining operations ended.
In 2010, when the original plan of operations expired, Mr. Congdon submitted a plan to operate year-around. In April 2011, after discussions with the Forest Service and Pitkin County, he modified his plan to reduce winter operating hours, minimize lighting, end winter camping by employees, and limit outdoor winter surface activity to loading and removing product. As he awaited a response from the Forest Service, the agency approved an interim plan that permits him to resume mining operations as before; however, that is not economically feasible.
In response to the 2011 proposal, the Forest Service, as required by the National Environmental Policy Act (NEPA), prepared an Environmental Assessment (EA) to consider: taking no-action, approving Mr. Congdon’s plan, or approving only May through November operations. In March 2012, the District Ranger published a Decision Notice and Finding of No Significant Impact (FONSI) that barred all winter operations due to “issues raised about potential impacts to bighorn sheep during critical winter periods.”
Mr. Congdon appealed the decision and, in August 2012, the Forest Supervisor reversed the District Ranger’s decision after concluding that there was not enough evidence in the EA linking winter operations to the declining bighorn sheep population. The Forest Supervisor vacated the Decision Notice and FONSI and remanded the case for further review and later rejected Mr. Congdon’s assertion that no further study is necessary.
On April 15, 2013, Mr. Congdon filed suit against the Forest Service and its officials in Colorado federal district court, alleging that the Forest Service was materially interfering with his right to mine and unreasonably delaying the approval of his modified plan of operation, in violation of the General Mining Law and the Surface Use Act.
On May 23, 2013, the District Ranger issued a new decision related to Mr. Congdon’s 2010 proposed plan of operations, which decision required that he agree to several modifications before a plan of operations would be approved. The decision also required him to post a reclamation bond with the Forest Service, despite that he had posted a reclamation bond with the Colorado Department of Reclamation, Mining, and Safety. On July 5, 2013, Mr. Congdon administratively appealed the decision to the Forest Supervisor, requesting that the decision be vacated and that his 2010 proposed plan of operations be approved as submitted. On July 12, 2013, the Forest Supervisor recused himself from the appeal and the matter was assigned to a Reviewing Officer from Nebraska. The District Ranger responded to the appeal on August 5, 2013, and Mr. Congdon filed a reply on August 26, 2013. MSLF gave an oral presentation to the Reviewing Officer on September 4, 2013, and the administrative record was closed on September 6, 2013.
Meanwhile, on May 29, 2013, the Forest Service filed a motion to dismiss the federal case for mootness and lack of subject-matter jurisdiction. On July 10, 2013, Mr. Congdon filed an amended complaint and an opposition to the motion to dismiss. On July 22, 2013, the Forest Service responded to the amended complaint by dismissing its first motion to dismiss and filing a second motion to dismiss for lack of subject-matter jurisdiction. On August 15, 2013, Mr. Congdon filed an opposition to the second motion to dismiss. On September 18, 2013, the federal district court heard oral arguments on the motion. On September 19, 2013, the federal district court granted the motion to dismiss for lack of final agency action.
On October 23, 2013, the Reviewing Officer issued a decision upholding the District Ranger’s decision. On November 5, 2013, Mr. Congdon filed a second level appeal with the Regional Forester. On November 22, 2013, the Deputy Regional Forester issued a decision upholding the Reviewing Officer’s decision and the District Ranger’s decision.
On January 30, 2015, after a year of negotiations, MSLF secured the Forest Service’s approval of Mr. Congdon’s plan of operations, allowing the extraction of mineral wealth underlying the mining claims.