Miner Battles Forest Service’s Attempt to Moot Lawsuit

DENVER - A Colorado man who owns 10 valuable mining claims in the White River National Forest in north-central Colorado on June 19 filed legal documents to resist an attempt by the federal government to dismiss his lawsuit in federal district court challenging the refusal of the U.S. Forest Service to permit him to conduct necessary 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.  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-round, the Forest Service delayed and all mining operations ended.  When the original plan of operations expired in 2010, Congdon submitted a plan for year-round operations.  The Forest Service, which once sought more study, recently issued a decision to moot the case.

 “The Forest Service seeks to put our client in an endless Catch-22 in which he can never get judicial relief,” said William Perry Pendley, president of Mountain States Legal Foundation (MSLF); MSLF represents Congdon.

In 2010, 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 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.”

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 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. 

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