A federal judge agreed on Tuesday the government has unreasonably delayed a years-long investigation into whether illegal mining is taking place near Glenwood Springs.
Garfield County and the Glenwood Springs Citizens' Alliance have sued the Bureau of Land Management, accusing it of tolerating the unauthorized removal of limestone for years. They are now seeking to compel the agency to suspend operations.
BLM, in turn, filed a motion to dismiss the lawsuit, arguing it had the discretion whether to take action against the reportedly illegal activity.
Now, U.S. District Court Judge Charlotte N. Sweeney has agreed the plaintiffs may pursue their lawsuit against BLM, given that the agency has failed to demonstrate any progress on its investigation into the unlawful mining — with Glenwood Springs residents being affected all the while.
"Years long delay — with no factual developments," Sweeney wrote, "is unreasonable."
The 15-acre Mid-Continent Quarry dates to 1982, when BLM authorized the mining of uncommon, chemical-grade limestone that was meant for suppressing dust in coal mines. However, the plaintiffs claimed that BLM knew as early as 2011 that mine owners, including current operator Rocky Mountain Resources (RMR), were extracting common variety limestone for "road base" and "backfill" material.
Aside from RMR's lack of authorization to mine common variety minerals on public land, federal law subjects common variety minerals to a sales contract in which the government receives the fair market value.
In 2019, BLM alerted the mine's operator, which is also known as Rocky Mountain Industrials, that it was starting a determination of common value (DCV). The investigation was to verify whether RMR was only mining uncommon minerals, or whether it would need to "relinquish all or part of" its operations for noncompliance.
The BLM also directed RMR to establish an escrow account while the DCV investigation proceeded, where the company could deposit money for the "suspected common variety limestone" it was selling.
But for the next three years, the investigation continued without a resolution.
"I'm not unsympathetic to plaintiffs' ultimate claim that the enforcement action is not happening fast enough and it has impacts," U.S. Department of Justice attorney Joseph H. Kim told Sweeney last month. "The problem is that sympathy doesn’t translate into a legal cause of action."
Garfield County and the citizens' alliance sought Sweeney's intervention on two grounds. First, it wanted her to find the government's actions permitting RMR to mine common variety minerals violated federal law. Secondly, and in the alternative, the plaintiffs argued BLM had failed to halt the illegal mining as it unreasonably delayed its assessment of the quarry's operations.
"RMR is authorized to remove and transport up to 20 trips a day of large industrial mining haul trucks through residential neighborhoods in Glenwood, neighborhoods in which many of GSCA’s members live," wrote the citizens' alliance in arguing the BLM's lack of action was harming residents.
"Unless and until BLM complies with federal law, Garfield County is hampered in protecting the health, safety, and welfare of the County," added Garfield County.
Sweeney sided with the government on the plaintiffs' first claim, noting there was no final action by the BLM to permit unauthorized mining. The establishment of the escrow account and the BLM's allowance of mining operations to continue while the investigation unfolded were not, in Sweeney's view, final actions in favor of the mining.
"The Escrow Agreement more closely resembles a tentative assessment of Rocky Mountain’s operations, and is not the 'last word' on Rocky Mountain’s mining operations," she wrote in a Nov. 8 order.
The judge also cast aside the plaintiffs' allegation that federal regulations mandated BLM to take enforcement action against RMR, which is not a party to the lawsuit.
However, Sweeney agreed there was a viable claim that BLM had unreasonably delayed its investigation into the alleged mining of unauthorized materials, when the agency's obligation was to evaluate the mining's effects on the public and the environment.
Sweeney did not believe the investigation to determine whether uncommon minerals were being mined would require an extraordinary amount of work for BLM, given the quantity of information suggesting unauthorized mining is indeed happening.
"The Court agrees with (plaintiffs) that the Bureau’s failure to complete the DCV Investigation has carried severe consequences for the people and land of Glenwood Springs," she wrote. "The environmental and public health effects of Rocky Mountain’s continued operations are, in the words of Garfield County, 'dire.'"
The judge acknowledged the investigation involved scientific and technical issues requiring expert analysis. But "expertise does not immunize agencies from delays," she concluded.
A BLM spokesperson said the agency could not comment on the pending litigation, and did not answer a question about why BLM had not concluded its investigation after three years.
"DCVs are complex assessments that take time to complete," said Steven Hall on behalf of BLM.
Sweeney ordered the agency to alert her within 14 days of the investigation's completion as the litigation proceeds.
The case is Glenwood Springs Citizens' Alliance et al. v. U.S. Department of the Interior et al.