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April 23, 2013
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Forest Service faces lawsuit over Avalanche Creek mine

The last mining company remaining in Pitkin County has sued the U.S. Forest Service to try to earn a court order allowing it to operate year-round.

Elbram Stone LLC filed a lawsuit earlier this month in federal court in Denver contending that Forest Service officials on the local and regional levels have "unlawfully withheld approval" of Elbram's plan of operation to mine alabaster and marble from mining claims along Avalanche Creek, approximately five miles north of Redstone. The delay is a violation of the U.S. Mining Law of 1872 and other federal regulations, the lawsuit alleged. The mining company wants a judge to rule that Elbram's plan must be approved within the next 30 days.

Bill Kight, a spokesman for the White River National Forest, said the agency cannot comment on a pending legal matter.

The lawsuit is the latest chapter in a 21-year fight over the mine. Mine founder Robert Congdon and his successors have battled with Pitkin County and, since 2003, the Forest Service over winter operations.

"It is one of the major disagreements," said Jeffrey McCoy, an attorney for Mountain States Legal Foundation, which is representing Elbram.

Elbram, a company organized by Glenwood Springs resident Walter Brown, acquired an interest in the mine in 2007. Congdon remains as the manager, according to the lawsuit.

While the Aspen area was built on silver mining and other deposits were mined in the area, Elbram is the last company attempting to maintain operations.

Brown previously has said year-round operations are necessary from a business standpoint to make the mine profitable. The small company cannot absorb the cost of mobilizing and de-mobilizing so frequently, he said. The company also has to provide an adequate, reliable supply of rock to earn business, Brown said in the past.

The Forest Service has been wary of winter operations because of potential impacts on bighorn sheep. The herd's population is falling for unknown reasons, the agency said, and the Forest Service doesn't want to risk further disruption of habitat by mining.

Elbram volunteered to place limits on winter work from Dec. 1 to April 30. The company offered to limit operations from 9 a.m. to 3 p.m. on weekdays and limit large-truck traffic to five round trips per weekday.

Former Aspen-Sopris District Ranger Scott Snelson reached a decision in March 2012 that restricted winter operations. Elbram filed an administrative appeal, and a Forest Service official found that there wasn't enough evidence for the agency to decide mining posed a threat to bighorn sheep. The issue was remanded back to the Aspen-Sopris District for further review.

Elbram said in the lawsuit that it met in negotiations with Forest Service officials in September and then didn't hear from the agency for six months. Earlier this month, officials with the White River National Forest informed Elbram they were sticking to the prohibition on winter mining. Elbram responded with the lawsuit.

The mine doesn't plan on undertaking operations in any season until the dispute with the Forest Service is resolved, McCoy said.

Mountain States Legal Foundation is a nonprofit organization with a mission of fighting for "individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system," according to its website.

McCoy said the organization doesn't charge attorneys' fees for legal representation. It receives multiple requests for help. Its legal staff reviews the requests, and a board of directors decides which cases to accept.

The foundation has represented other clients on Mining Law cases with "mixed results," McCoy said.

scondon@aspentimes.com


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The Aspen Times Updated Apr 23, 2013 07:32AM Published Apr 23, 2013 01:20AM Copyright 2013 The Aspen Times. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.