A Solid Victory!

March 1, 2003

Reprinted from The Buckhorn Bulletin, Newsletter of the Okanogan Highlands Alliance

On February 9, 2001, in Chelan County Superior court, Judge Allan heard BMG / Newmont Mining Company's motion for partial summary judgment on their challenge of the Pollution Control Hearing Board (PCHB's) decision to revoke the Clean Water Act, Section 401certification for the mine. (See a verbatim transcript excerpts on other web news page). BMG tried to convince the court that it was proper for Ecology to issue a 401 permit based on the condition that BMG would obtain a National Pollution Discharge Elimination System (NPDES) permit Prior to construction the project. OHA (Okanogan Highlands Alliance) Disagreed.

A summary judgment is used to eliminate issues that can be decided before the case goes to trial. It must be issues that have no factual disagreements but are only legal questions

After discussing her option on the issue Judge Allen made an absolutely brilliant ruling: she denied BMG'S motion for summary judgment. She ruled that, all facts aside, as matter of law, the 401 was improper. She rejected BMG 's argument that where there are direct discharges needing a NPDES permit that the 401 was effectively redundant.

But, she did not stop there…

She went on to itemize the particular facts that led her to believe that summary judgment should be denied. When a party involved in a lawsuit makes a motion for summary judgment, any items of fact are viewed a light most favorable to the non-moving party. These include the facts that David Mann (Attorney for OHA) listed in bullet form in our brief. Such as: the leachate will violate water quality standards, the leachate will discharge, Ecology did not know where or how much, etc.

Judge Allen also accepted OHA's contention that Ecology had already determined that "no" was not an option in the permitting process- -that this project has snowballed to far. She accepted Tom Luster's (who was supposed to be the decision maker who's option was overridden by the management at Ecology) deposition testimony as evidence: that he believed after conversations with his supervisors, that no was not an option. It did not help BMG's case that Joan Marchioro (attorney for Ecology) confirmed that the NPDES and 401 had initially been on a single track, but with the one year 401 deadline approaching Ecology felt it was important to split the two-go ahead and issue the 401-and save the water quality work for the NPDES permit.

So a Solid Victory!!!!!! This is a crushing defeat for BMG! The briefing schedule stands as last agreed with oral argument either in September or next spring.

Reprinted from The Buckhorn Bulletin, March 2001, the newsletter of the Okanogan Highlands Alliance, PO Box 163, Tonasket, WA 98855