Nez Perce Tribe
On January 9, Judge Winmill denied defendant Midas Gold Corporation’s (“Midas Gold”) motion to stay the Nez Perce Tribe (“Tribe”)’s Clean Water Act lawsuit against the company. In his denial, Judge Winmill rejected Midas Gold’s attempt to delay the lawsuit, stating that “the Tribe has presented evidence that there will be real, tangible harm if the discharge of pollutants continues.” The Tribe initiated litigation against Midas Gold for illegally discharging arsenic, cyanide, mercury, and other harmful pollutants at its proposed Stibnite Gold mine site.
“Midas Gold’s motion to stay the Tribe’s litigation was simply a delay tactic,” stated Shannon F. Wheeler, Chairman of the Nez Perce Tribal Executive Committee. “The Tribe is eager to move forward with its litigation in order to ensure harmful pollution discharges from the site are stopped.”
The mine site is located within the Tribe’s aboriginal territory and is subject to the Tribe’s fishing, hunting, gathering, and pasturing rights, which the Tribe reserved in its 1855 Treaty with the United States. “This mining project and the ongoing pollution are currently the biggest ecological threats to the area’s resources; if these threats are not addressed they will undermine all of the fisheries restoration work that the Tribe has already completed in the South Fork Salmon River watershed,” stated Wheeler.
The Clean Water Act prohibits the discharge of pollutants into surface waters such as lakes, rivers, streams, and wetlands without a permit. The Tribe is asking the court to hold Midas Gold, as the owner and operator of the Stibnite mine site, responsible for its illegal pollution discharges from the mine site into the East Fork South Fork Salmon River and its tributaries.
Judge Winmill rejected Midas Gold’s argument that the Tribe’s case will impose hardship on the company and should be stayed while Midas Gold seeks an Administrative Order on Consent (“AOC”) under the Comprehensive Environmental Response, Compensation and Liability Act for their site. If obtained, an AOC would govern remediation of at least some portion of Midas Gold’s site.
Judge Winmill noted in his denial that, although he has broad discretion to stay proceedings, Midas Gold had not met its burden to stay the litigation. “Midas has simply not offered any evidence that the AOC will be completed in a reasonable time, especially in light of the ongoing environmental harm.”
“The Tribe is very pleased that Judge Winmill has again ruled in favor of the Tribe and wants to move forward with our case,” stated Chairman Wheeler. “Judge Winmill clearly understands the harm to the Tribe and the public, caused by the continued delay in Midas Gold addressing the pollutants being discharged from their site.”
Judge Winmill’s ruling today follows his denial on December 16, 2019, of Midas Gold’s motion to dismiss the Tribe’s Clean Water Act lawsuit against the company.
The Tribe is represented in this matter by the Nez Perce Tribe Office of Legal Counsel and Advocates for the West.