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Coyle: Defending Quechan Indian Pass - Again

Contrary to what some may think, the nearly 10-year struggle to protect Quechan Indian Pass is not over. A catalyst for California's enhanced regulation of hardrock mining and development of increased state and federal protections for sacred places, the assault on the Quechan Indian Nation's traditional beliefs continues.

The tribe has lived at the juncture of what is now the border of California, Arizona and Mexico since time immemorial. The mine area contains 55 recorded properties eligible for listing on the National Register, items subject to the Native American Graves Protection and Repatriation Act and religious sites including prayer circles, shrines, petroglyphs and geoglyphs linked by ancient trails. This valley is adjacent to two designated wilderness areas, critical habitat for the federally-listed desert tortoise and a designated area of critical environmental concern.

Glamis Gold's Imperial Mine threatens the continuity of the Quechan people and other Colorado River tribes. It proposes a massive, open-pit, cyanide heap-leach gold mine on 1,600 acres of off-reservation federal public land located in the heart of a valley withdrawn by the government to further protect Native religious and cultural values, leaving a permanent hole 850 feet deep and wasterock piles the size of 30-story buildings.

The Advisory Council on Historic Preservation found the mine would directly destroy many of these sacred places (and the tribe's heritage) and indirectly impact other places through its 24 hours a day, seven days a week, decades of operations in this otherwise natural and quiet area. Based on these impacts, the National Trust for Historic Preservation listed it on its 11 Most Endangered Historic Places for 2002.

This highly controversial mine was properly denied in January 2001 by Clinton Interior Secretary Bruce Babbitt after an exhaustive, six-year process including three major environmental documents, many public hearings and consultations between the federal government and the Quechan Tribal government and Culture Committee. The Quechan people followed the established processes and won the first federal denial of a large mine. It was a short-lived victory.

On Thanksgiving 2001, without consultation or public process, Bush Interior Secretary Gale Norton signed a one-paragraph statement rescinding the denial. Relying on a controversial opinion issued by her chief lawyer, Solicitor William G. Myers III, she said that without regulations to define "undue impairment" Interior cannot determine when a project would unduly impair Indian heritage resources. Interior is now reconsidering the project but not promulgating any definitions. Moreover, on California Indian Day 2002, again with no consultation Interior released a determination that Glamis' mining claims were valid.

To counteract Interior's hostile actions, many state and federal legislative initiatives were launched. In 2002, the California legislature introduced several sacred places and mining bills. S. 1828 (Burton) sought to amend the California Environmental Quality Act to require avoidance and mitigation of impacts. S. 483 (Sher) sought to require new open pit mines near sacred places and within protected areas of the California desert to be completely backfilled and recontoured.

The bills easily passed both Houses; yet Governor Davis vetoed S. 1828 but signed S. 483. Governor Davis directed his staff to pursue all possible legal and administrative remedies that will assist in stopping the development of the mine. Those efforts culminated in April 2003 with the passage of S. 22 (Sher) and regulations requiring complete reclamation not only of the Glamis mine but all new open pit mines statewide.

Also, the Governor's staff met with tribes to develop a bill that, in the Governor's words, tribes would feel good about, would afford greater protection to sacred places and the administration could sponsor.

Ten months of drafting produced S. 18 (Burton). It included measures requiring consultation concerning general and specific plans, allowing tribes to hold conservation easements and offering affirmative protection to sacred places on state lands or federal lands managed by the state.

In the wee hours of the 2003 legislative session, S. 18 failed by a mere three votes. Accounts say that tribes, staffers and supporters quietly wept in the Capitol Rotunda - and the dozens of suited lobbyists arrayed against the bill went drinking with cigars. Senate leaders have vowed to introduce another bill.

Protecting sacred places is not just a state issue. In 1998, the Los Angeles Times and Washington Post wrote that the Glamis dispute was the first significant test of Executive Order 13007. Interior is failing this test miserably. At Congressional hearings in 2002, its representatives were unable to identify any projects that have been denied to protect sacred places; nor could witnesses respond whether Interior consulted with the tribe prior to rescinding the mine denial.

In 2002, H.R. 5155 (Rahall) was introduced, requiring federal agencies to: accommodate access and use of sacred places, protect them from significant damage, require meaningful government-to-government consultation and provide a mechanism to designate sacred places on federal lands as unsuitable for certain uses. It, however, did not advance during that session. Rahall re-introduced a similar bill this year. A sacred places bill may also be introduced in the Senate.

Meanwhile, Senator Reid requested Interior to conduct an appraisal and reach agreement with Glamis for the purchase of its mining claims. Interior asserts it lacks appraisal funding and that a buy-out would adversely affect its budget. Nor has Interior re-evaluated the validity of Glamis' claims in light of the California backfill requirements.

In July 2003, Glamis sent a notice of intent to file a claim against the United States pursuant to the North American Free Trade Agreement. Glamis, a Canadian subsidiary, claims its property interests were expropriated by the California measures. It seeks over $50 million in damages.

Under NAFTA, the parties have 90 days to seek agreement; after that Glamis may file a claim to be considered by a tribunal. The process is largely secret. The only parties recognized are the United States and the company; a non-party may ask permission to file a friend of the court brief.

However, this claim would be the first to involve tribal interests. Senator Boxer has asked Secretary of State Colin Powell to strongly defend the California measures; the tribe has requested formal consultation with the United States. We firmly believe that any negotiated solution must include protection in perpetuity for Indian Pass and avoid a company windfall.

Meanwhile, Solicitor Myers has resigned his Interior post amid investigations into whether he violated ethics agreements relating to contacts with former clients - including the National Mining Association - while Solicitor. However, Mr. Myers has not withdrawn his name from nomination to the 9th Circuit Court of Appeals - an important bench hearing many public lands cases from Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. Based on Mr. Myers' abrogation of his office's trust, statutory and Constitutional duties in handling the Glamis Imperial mine matter, his nomination should be of serious concern to all of Indian country.

The Quechan Nation presses on against the odds to defend their heritage, their religion, their belief. This is not a mining or trade issue - rather - the tribe is seeking the promise of the United States Constitution's Freedom of Religion clause and the American Indian Religious Freedom Act's policy statement. President Bush, a man of faith, should see this, even if his Department of Interior cannot. Sacred places are more precious than gold.

Courtney Ann Coyle, attorney for the Quechan Indian Nation, is in private practice, focusing on environmental litigation and tribal, cultural and natural resource landscape protection. She can be reached at CourtCoyle@aol.com. The Quechan Nation can be reached at: (760) 572-0213 or (760) 572-0661.