Ninth Circuit takes up gold mining fight on eve of drilling

SAN FRANCISCO, Calif. (CN) — A three-judge appeals panel has a week to rule in a case about exploratory gold drilling before work starts at the eastern Sierra Nevada site.

The case involves a Kore Mining Ltd. project to drill for gold on federal land. The U.S. Forest Service approved the project near Mammoth Lakes that would include 12 holes, 600 feet deep, on some 1,900 acres. The plan calls for vegetation clearing and building under a mile of temporary access roads. The mining company also will return the land to its natural slope afterward and sow native seeds. A biologist will monitor the site for three years once the project ends.

In October 2021, Friends of the Inyo, the Center for Biological Diversity, the Western Watersheds Project and the Sierra Club sued. They claim the drilling would lead the bi-state sage grouse to abandon its habitat, as well as impact area groundwater that feeds into the Owens River.

A federal judge sided with Kore Mining and the Forest Service this past March, leading the four groups to appeal to the Ninth Circuit. A three-judge panel heard arguments Thursday.

“The bulldozers and the rigs are rolling, basically in a week,” said the environmentalists' attorney Roger Flynn. Work is scheduled to begin Sept. 1

Attorneys in the case argued whether the one-year drilling portion of the project, as well as the extended habitat restoration portion afterward, is one project or two. The environmental groups have argued that the Forest Service bypassed a more stringent environmental review process, splitting the projects into two and using different “categorical exemptions,” with different requirements, to gain approval.

Those categorical exemptions don’t properly analyze and show what the groups called serious environmental impacts. Additionally, the project can’t be completed in a year — a requirement under Forest Service regulations. Splitting the project into two also violates certain review, resource protection and permitting requirements.

“The error here is they didn’t do an (environmental assessment),” Flynn said.

“They should have done an EA here,” he added. “It does seem like an end-run around the public review.”

Kore Mining has argued that the environmental groups are attacking the review process for the project, not challenging its substance or merits. In fact, if they succeed in their appeal, it’ll lead to “absurd results,” as Kore intends to perform habitat restoration and monitor the site after the exploratory drilling.

“Indeed, (Friends of the Inyo’s) opposition to all mining activities at all costs would effectively seek to ‘punish’ the agency for its efforts to do more than would otherwise be required,” Kore wrote.

Kore Mining's attorney Kerry Shapiro told the panel that the mining company’s application for the project met the necessary standards. The concept of habitat improvement for years afterward was an addition by the Forest Service.

He called it “harmless error” to parse over one action versus two. The project meets the requirements of the categorical exemption, poses no significant or cumulative impacts and includes long-term monitoring along with seeding and weeding.

“It’s extra credit,” he said of the long-term monitoring. “It’s bonus points.”

The three-judge panel was composed of U.S. Circuit Judges Patrick Bumatay, a Donald Trump appointee, and Roopali Desai and Lucy Koh, both Biden appointees.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit