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CYANIDE REGULATIONS
lands. Of those five statutes, the one that is the most powerful— an almost certain veto of a mine considering the use of cyanide— is the Endangered Species Act. If a mine using cyanide might adversely affect an endangered species, that mine itself will become endangered if there is not a terrific mitigation plan in place for the species and its habitat. The CWA can also be a deter- rent to the opening of a mine using cyanide.
Federal and State Litigation Relating to Cyanide in Mining
In the U.S., several cases have been brought that deal with cyanide. These cases serve as precedent domestically and internationally. In
, plaintiffs,
Canyon Resources, argued that Montana's complete ban on cyanide leaching constituted a taking under the 5th Amendment to the U.S. Constitution, or a violation of the Contracts Clause of Article I, sec. 10 of the Constitution. The imposition of Montana's I-137 had resulted in the forfeiture of a pending mineral lease per- mit for the Seven-up Pete Venture mine, because the application had not been completed before the exemption date. The court ruled that, no, the Seven-up Pete Venture's opportuni- ty to seek a permit did not constitute a property right and thus a taking had not occurred. Although I-137 substantially impaired Venture's contractual relationship with the state by banning all future development using cyanide leaching, the ban did not violate the Contract Clause because the state could nevertheless legitimately determine that cyanide leaching operations required strict regulation, and I-137 was reasonably related to that legitimate purpose. After the Montana state courts held against Canyon Resources, the plaintiff sought relief in federal courts. The federal courts refused to hear the case, stating, in effect, that Canyon Resources had only "one bite out of the apple," and that bite was state courts. Canyon could not then return to federal courts to have the case reviewed by federal judges. The plaintiff did not get a second chance, and the Montana cyanide ban effectively halted the gold mine that had been planned.
In Colorado, Summit County enacted an ordinance banning cyanide or other toxic/acidic chemicals in leaching operations for all zoning districts in the county. The state mining association brought action in state court. In
, the mining asso-
ciation argued that the Colorado Mined Land Reclamation Act (MLRA) expressly or impliedly preempted Summit County ordi- nance section 3812.04 prohibiting cyanide uses within the county. The court ruled in favor of the plaintiff, saying the MLRA impliedly preempts Summit County's ordinance banning the use of cyanide leaching. Preemption was present, foreclosing county rules on cyanide, because the MLRA, and its 1993 amendment, grants exclusive authority to the Mined Land Reclamation Board to specifically regulate cyanide mineral leaching. The decision indicates that only an amendment to the state law, or a complete rescission of the MLRA, could permit a local government authori- ty in Colorado to prohibit the use of cyanide leaching. Summit County tried to do what Montana did, and place a ban on cyanide all together. In Colorado, only the state can do that. In
the BLM, the Montana Department of Environment Quality, and the owners of the Zortman-Landusky mine complex in Montana. The lawsuit was brought under the CWA, where the Tribe sought a writ of mandamus to compel necessary reclamation, contending
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, the Tribe filed suit against
Seven-up Pete V
e
nture v
. Montana (2005)
County Commissioners of Summit County (2009)
Colorado Mining Association v
.
Board of
Gros V
e
ntre T r
ibe v
. U.S. (2006 )