June 6, 1999

Mining Industry Meets its Match in Attorney for the 'Underdogs'

By TODD HARTMAN Colorado Spring Gazette-Telegraph, June 6th, 1999

BOULDER - Like an Old West gunslinger, Roger Flynn relishes a good shootout. But Flynn, a 37-year-old gung-ho environmental lawyer, is using decidedly New West tactics to take on one of the West's oldest industries: hard-rock mining.

And his work is earning him a reputation as a major nemesis to the hard-rock mining industry from Cripple Creek to California. Flynn is the ultimate underdog, working alone in his donated office in Boulder and taking on armies of coat-and-tie corporate attorneys - with striking success.

"Roger Flynn is a one-man dynamo who operates from a very simple premise - mining companies should be held accountable for their environmental performance," said Stephen D'Esposito, president of the Mineral Policy Center, a national environmental group trying to reform federal mining laws.

"He's a hero to communities who often face long odds when going up against the high-priced lawyers and consultants used by the industry," D'Esposito said.

An unlikely adversary Flynn has made a career of throwing legal challenges at the industry, scrutinizing everything from compliance with water pollution laws to post-mining cleanups. Most recently, he turned heads by beating the industry up with the very 1872 law that started a rush to the West by opening public land to mining. Flynn cited a loophole in the law that enabled him to block a major gold mine proposal in eastern Washington state. The move so infuriated the mining industry and its allies in Congress that it prompted U.S. Sen. Slade Gorton, R-Wash., to introduce a rider to the recent Kosovo spending bill seeking to overturn the decision.

"It's an interesting time for mining," said Flynn with a laugh as he described the frenzy among mining executives and their lobbyists by his latest maneuver. "Even the industry people admit it."

Indeed, Flynn's evolution into one of western America's chief mining antagonists comes at a time when the industry is under a microscope like never before. With the spread of enormous, open pit mines that tear out mountainsides and use great quantities of cyanide to leach out gold, environmental groups are paying more attention to the hazards that mines pose.

One local example is the Cripple Creek & Victor Gold Mining Co. An operation with a permit covering 4,232 acres, it has some residents worried about water pollution, damage to historic buildings and the loss of scenic views.

In the mid-1990s, a group of Victor residents contacted Flynn about the mine, citing concerns about the level of acidity of the water coming off the mine's property into a drainage called Arequa Gulch, a tributary of Cripple Creek.

Embracing his cause Flynn took up the cause with enthusiasm. The way he saw it, the state wasn't seeking tough enough water quality standards for the mine. He helped convince the Environmental Protection Agency to look into the matter. The agency agreed with Flynn and demanded the state take a tougher stand. That led to a legal fight between the mine and the Colorado Department of Public Health and Environment. Flynn joined the case and made several key arguments before an administrative law judge. Last year, the judge ruled against the mine on all points. Though the case isn't closed - the mine is appealing - it has cost the company plenty.

"He definitely changes and shapes the debate in a way that wouldn't occur otherwise," said Bob Micsak, a vice president and attorney for Independence Mining, parent of the Cripple Creek & Victor mine. Micsak, like others in the industry who have dealt with Flynn, has grudging respect for his opponent, calling him a serious force in the business. Tim McCrum, a Washington D.C.-based mining attorney who knows Flynn, agreed. "His passion for these issues is reflected in his red hair," McCrum said.

But while they respect him, they also see problems with the way he attacks his job and the industry. Foes say Flynn too strident. Though he admires Flynn's talent, Micsak is critical of some of his tactics. His opponents mainly complain that he is too rigid and legalistic, his rhetoric is overheated and, as he has grown more experienced, Flynn is less willing to compromise. They admit he's a technical master of the law, but contend that he doesn't look at the bigger picture. "Roger is enamored by the law and has forgotten about the environment," said Kit Kimball, a longtime mining lobbyist and consultant in Colorado. Kimball cited Flynn's lack of participation in state policy matters, such as finding new ways to clean up abandoned mines, as an example.

Flynn shrugged off the criticism. "If I use the Clean Water Act to control runoff, the mining industry sees that as a technicality," he said. "Lawyers, that's what we do. We use the technicalities. "It seems industry doesn't like the result, which is more control on mines. Protecting the environment to them is a technicality."

Such jabs are typical for Flynn. He's not afraid of the heat. He's used to being labeled as extremist, inflexible and wanting to shut down mines. He casts off most of it, saying such labels are a typical tactic of an industry looking to discredit opponents. He also denied their accuracy. If he were as extreme as some of his opponents claim, he said, he'd be looking to shut down mines, not just demanding they adhere to environmental regulations.

"Look at Cripple Creek - we're not against the mine, we're arguing over water quality," he said. "(The mine) should be up against a citizens group that fights to have no mine at all."

Still, Flynn said there were times he worked for clients who wanted no mine at all. He said that created a polarizing situation. After all, "it's hard to have half a mine," he said.

Attracted to underdog causes. Big fights are part of the lure for Flynn, who went into environmental law because he wanted to work for the underdog. He actually had a late start. After college he worked as a manufacturing engineer for four years before realizing he wanted to practice law. He enrolled at the University of Colorado. He became interested in mining when, as an intern for a public interest law firm, he started to raise questions about a small gold mine in Park County. As he became familiar with the state agency that oversees mining, he was struck by what he perceived as an indifference to citizens' views. He had found his niche.

"You probably can't have more of an underdog than people trying to take on big, multinational mining companies," Flynn said. "I realized it was about the biggest David and Goliath story you could come up with." He graduated from law school in 1991. Two years later, using space borrowed from the Environmental Defense Fund and financial support from a patchwork of foundations, he set up the nonprofit Colorado Mining Action Project.

His timing was perfect. The story of the Summitville mine - an ill-fated southern Colorado gold mine that leaked toxic runoff into the Alamosa River - began to unfold. Flynn jumped into fray, using the opportunity to expose the shortcomings in mine regulations. He was soon escorting reporters from Time magazine and CNN on flyovers of the site. The ensuing coverage put Flynn in the spotlight and brought in the business. By mid-1994, Flynn changed the name of his business to the Western Mining Action Project in response to cases he was taking up throughout this half of the country, including work for Indian tribes. It helped, of course, that Flynn was taking cases for free. With his salary and expenses covered by grant money, he didn't need to collect from clients.

Never gives up the fight. Now, Flynn runs what he called the only environmental law firm in the West ("Maybe the world," he jokes) devoted strictly to scrutiny of hard-rock mining.

Flynn's latest and biggest success - his use of a long-overlooked portion of the 1872 mining law to stop a Washington state gold mine - was tempered when Congress approved the exemption for the mine in the Kosovo bill in May. But Flynn seemingly never surrenders: "We have other aces up our sleeve." And, he said, the congressional exemption is only "a pause in the battle before a larger fight in the fall" concerning reform of the 1872 law, much reviled by Flynn and other environmentalists because they say it's out of step with modern public land laws.

With Flynn preparing for a brawl, some mining advocates rue the day he stepped into the fray. Kimball, the mining lobbyist looked back to when she first became acquainted with her future adversary. Flynn, not long out of law school, was representing environmentalists in a collaborative effort to rewrite state mining laws and regulations.

"He had just gotten married. He just had a baby. He took a bus from Boulder, so all the meetings were catering to Roger's schedule," Kimball said. "In an odd sort of way, we all felt like we got him started."

Todd Hartman covers the environment and may be reached at 636-0285 or toddh@gazette.com

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