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Miner’s Lawsuit Dismissed; Must Await U.S. Forest Service Appeal

Sep 19, 2013 | by William Perry Pendley

DENVER, CO.  A Colorado man who owns ten valuable mining claims in the White River National Forest in north-central Colorado today expressed dismay on the dismissal of his lawsuit against the U.S. Forest Service in federal district court challenging the agency’s refusal to permit him to conduct year-round mining operations.  Robert Congdon, who has owned the claims 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.  Since 1994, he operated under a plan of operations approved by the agency that limited his activity to the May to November period; in 2003, he asked to operate year-round, the Forest Service delayed and mining operations ended.  When the original plan expired in 2010, Mr. Congdon submitted a plan for year-round operations; the agency responded only after the lawsuit was filed and then argued that the lawsuit be dismissed.

“We are disappointed with the ruling because we believe that the appeal is futile, but when the appeal is final in November 2013, we shall reinstitute the lawsuit,” said William Perry Pendley, president of Mountain States Legal Foundation (MSLF); MSLF represents Mr. Congdon.

In 2010, Mr. Congdon submitted a plan to operate year-round.  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.

Mountain States Legal Foundation, created in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.  Its offices are in suburban Denver, Colorado.

For more information: Elbram Stone Company, LLC v. U.S. Forest Service

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