By JUDITH KOHLER | Associated Press
DENVER - In a closely watched case that could affect similar claims throughout the West, local governments and an environmental group argued before an appellate court Monday that they have a right to challenge the sale of public land to a private mining company.
The town of Crested Butte, Gunnison County and the High Country Citizens Alliance are trying to revive their lawsuit claiming the sale of 155 acres on Mount Emmons to the Phelps Dodge Corp. violates federal law. They say the Bureau of Land Management shouldn't have sold the land because Phelps Dodge can't show that the proposed molybdenum mine would be profitable as required by an 1872 mining law.
Last year, a federal court sided with the BLM and Phelps Dodge, which said the law prevents third parties from challenging mining patents _ essentially deeds _ on public land. The court ruled that only people with a competing claim to ownership of the land can sue.
A spokesman for Phelps Dodge said the company agrees with the ruling even though it is in negotiations to transfer the land to the previous owners.
The lawyer representing the environmental group and local governments argued before a three-judge panel of the 10th U.S. Circuit Court of Appeals that a 1946 law allowing judicial review of federal agencies gives his clients the right to object.
"The bottom line is whether the government has met the burden of clear and convincing evidence that the mining law precludes judicial review," said Roger Flynn, director and managing attorney with the law firm Western Mining Action Project in Lyons.
Flynn argued that the 1872 mining law, which governs the development of gold, silver and other hard-rock minerals, doesn't say anything about whether third parties can challenge patents.
After the hearing, Flynn said groups across the West are watching this case because similar protests are pending. He said it doesn't matter who owns the land because the issues are the same.
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