A three-judge panel of the Ninth Circuit Court of Appeals has denied the Te-Moak Band of Western Shoshone’s request for an emergency injunction to stop the destruction of an ancient trail in the Tosawihi Quarries, a 10,000-year-old sacred site. Though a legal appeal and an over-arching lawsuit concerning the entire project are still pending, an international gold-mining consortium’s bulldozer is already at work constructing a power line along the doctoring trail, said the Band’s attorney, Rollie Wilson, of the law firm Fredericks Peebles & Morgan.
The construction equipment was fired up within days of the court’s June 8 order, according to Wilson. The one-page decision did not detail the court’s reasoning.
Destruction of the doctoring trail, which connects healing places, means irreparable harm to the culture and identity of the Western Shoshone, said Joe Holley, a member of the Band’s council and a former chairman. The Band is now asking for a rehearing by the full court, a legal process that may take several months. Unless the rehearing is granted on an emergency basis, construction is likely to continue, and the trail may well be obliterated, said Wilson.
The entire cultural landscape, including the doctoring trail and additional related places, is revered by numerous Plains tribes in addition to the Western Shoshone. The Tosawihi Quarries currently sit on federal land administered by the Bureau of Land Management (BLM), which has declared them eligible for the National Register of Historic Places.
“To get a rehearing, you have to cite a clear error of law,” said Wilson. “Once properties are deemed eligible for the Historic Register, Section 106 of the National Historic Preservation Act requires that you determine whether an undertaking like the power line will have an effect on them and then figure out how to mitigate or avoid the effects. BLM, which issued the permit for the power line, along with other mining activities in the Quarries, did not take that final step. They determined the trail eligible, then let the mining company bulldoze right through it.”
BLM documents show that the agency appears to keep the mining consortium’s concerns top of mind. In March 2014, BLM approved the current round of gold mining after a telephone call from the company’s legal counsel to a BLM staffer to advise that the consortium needed the Record of Decision (ROD) for Tosawihi mining activities in time for a quarterly report to investors. Emails with the subject line “urgent”—which were part of the court record and shared with ICTMN by the Band’s attorney—began flashing among BLM employees, warning against delay.
“They are requesting that the ROD and approval be signed or dated no later than March 31. March 31 is the end of the first quarter,” emailed one BLM staffer.
Another BLM employee joined in, warning of tribal concerns. Despite the statutory requirement to consider them, the BLM got the ROD signed in time for the quarterly report.
The Band has engaged in a multi-generational fight to protect the Quarries, Holley said. For decades, BLM has tried to limit recognition of sacred sites in the area, Holley charged; earlier mining activities had scarred much of the landscape and depleted its waters, but the Band hoped to prevent further destruction, he said. Ted Howard, cultural resources director and member of the Shoshone-Paiute Tribes, has called the Quarries “the center of our spiritual being.”
“They tell us this power line is only a temporary impact,” Holley said. “But for 20 or 30 years—an entire generation—the line’s presence means we will not be able to practice our culture, religion and spirituality in this important place. We will lose the chance to pass these practices and traditions to the next generation, and that means they will be gone forever. We will lose another piece of our culture, which we are working hard to maintain, and which the United States has a trust responsibility to protect.”
Matt Spangler, spokesperson for the Advisory Council on Historic Preservation, described the BLM as the “federal agency lead” on the project and deferred to it for questions about the effects on the trail and the BLM’s relationship with the mining company. Spangler added that questions of broad tribal trust policy were outside ACHP’s purview.
The BLM refused to comment, citing the ongoing lawsuit. At press time, the Nevada-based mining company, Carlin Resources, an arm of Toronto-based Waterton Global Mining Company, which is part of a firm headquartered in the Cayman Islands, had not responded to requests for a comment.