South Fork Band and others v. United States DOI, 588 F.3d 718, (2009)

Nature of the Case

Claim by Native American tribes against the U.S. Department of the Interior’s Bureau of Land Management (“BLM”) for violating federal law in its decision to allow Barrick Cortez (of Barrick Gold Corporation) to construct the Cortez Hills gold mine in an area of great significance for the cultural and spiritual practices of the Western Shoshone Tribe; Violation of Indigenous Rights to Religious Practice; Indigenous Land Rights; Environmental Rights; Protection of Procedural Due Process Rights.

Summary

In this case, the South Fork Band and other Western Shoshone tribes were appealing a lower court decision denying an injunction[1] against the construction of the gold mine. In their appeal to the Court, the South Fork Band argued that an injunction should be granted against Barrick Cortez because the U.S. Interior Department’s BLM had violated federal law under the Federal Land Policy Management Act (“FLPMA”) and the National Environmental Policy Act (“NEPA”) in making a decision to approve the mining project, because the agency failed to adequately account for both the Tribes’ access to religious sites and mine’s environmental impact on the area.

The court granted the injunction on the basis that the BLM had failed to make adequate findings on the environmental impact of the gold mine project, specifically, regarding the impacts of the mine’s massive extractive activities on air quality, groundwater, and fine particulate emissions in the area of the mine. The court also found, however, that the South Fork Band had not shown that the BLM’s actions violated their ability to exercise their religion. The court determined that the BLM had sufficiently studied the effects of the project related to the tribes’ religious practices in the agency’s Environmental Impact Statement (EIS).  The court also found it significant that the agency had stated in the EIS that it would maintain ongoing consultations with the tribes during the entire length of the project regarding effects on their religious practices. The 9th Circuit directed the lower court to issue an injunction against the continued construction of the mine until the BLM could prepare a new EIS that adequately addressed the environmental impact of the project.

Keywords: South Fork Band and others v. United States DOI, 588 F.3d 718, (2009), Indigenous, People, Right

[1] Legal order to do or refrain from a specific activity.

Enforcement of the Decision and Outcomes

In response to the 9th Circuit’s decision, Barrick Cortez, Inc. submitted (January 25, 2010) a motion to the lower court requesting the court to only issue a limited injunction, which would not halt the entire project but only certain activities.  On February 5, 2010, the South Fork Band asked the lower court to issue a full injunction which would halt all further construction activity on the mine until the U.S. Interior Department’s Bureau of Land Management prepares an updated Environmental Impact Statement. On April 14, 2010, the court refused to require the mine to cease operations and instead issued limited restrictions on the company’s activity until the full trial can take place.

Significance of the Case

This case follows years of litigation efforts by the Western Shoshone Peoples (who are part of the South Fork Band) to gain protection of their human rights to land, culture, and religious practices.  It reinforces the findings by international human rights bodies that the United States’ federal policy and actions with respect to the protection of Indian land rights have violated U.S. environmental law. In 2006, the Western Shoshone brought a petition against the United States at the United Nations Committee on the Elimination of Racial Discrimination (CERD) arguing that the U.S.’s federal Indian laws and policies allowed for the “gradual encroachment” of the federal government onto Indian land. The CERD Committee’s decision urged the U.S. to examine the impact that environmentally harmful activities have on the health and cultural rights of the Western Shoshone. This process by the U.S. to transfer title of Indian land was also challenged by the Dann sisters of the Western Shoshone Peoples in an action before the Inter-American Commission on Human Rights (IACHR) in 2002.  The IACHR’s decision stated that the U.S. process for land title transfer of Indian lands was inconsistent with contemporary international human rights norms and violated the American Declaration of the Rights and Duties of Man.

Groups Involved in the Case

South Fork Band Council of Western Shoshone Te-Moak Tribe of Western Shoshone Indians Timbisha Shoshone Tribe Western Shoshone Defense Project www.wsdp.org Great Basin Resource Watch www.gbrw.org