Wednesday, June 8, 2005

Mine prepares to cover tailings

Judge to decide 'cease and desist' order on Minnie Moore activities


By MATT FURBER
Express Staff Writer

Minnie Moore Mine owner Carl B. Johnston accepts excavated topsoil from the Woodside Elementary School building site. He is stockpiling soil as he awaits the outcome of a county lawsuit seeking to curtail his mining activities and finalization of Environmental Protection Agency remediation plans for a historical tailings pile on the mine property. Photo by Willy Cook

Minnie Moore Mine owner Carl B. Johnston is stuck between a rock and a hard place, as the saying goes.

In a county where real estate trade is the top industry, the 125-year-old mining area on Broadford Road presents an inherent conflict. But, if 5th District Court Judge Robert Elgee rules in Johnston's favor this month, the patented mine owner with 265 acres adjacent to an essentially residential neighborhood can get back to business.

Some of the property involved in the six-year debate with Blaine County includes part of the registered Broadford town site.

Although Johnston has owned and operated the mine with his partner, James H. Bilbray, since the 1970s, most of the income on the property has not actually come from mining precious metals. The property is a mix of more than a dozen patented mines and the historic mining town that had many streets named after trees, like in Bellevue and Hailey.

From 1881 to 1887, some $7 million in silver ore was extracted from the mines, said Greg Weigel of the Environmental Protection Agency in Boise, who has been working on a remediation plan to contain a tailings pile on the property.

Johnston said he has enjoyed an income of selling rock and gravel to landscapers and road and construction contractors. He has also supplied riprap for the Big Wood River to protect bridges and limestone to the Triumph Mine clean up, a federal Superfund project. However, in August 1999, Blaine County ordered Johnston to cease gravel extraction, mining, blasting or bulldozing on the hillsides, citing a violation of county zoning regulations.

Johnston said most complaints about his operation came during years when he did some blasting at the mines. Regardless of Johnston's relations with neighbors, he is protected by the federal Mining Act of 1872, which would indicate that county zoning has no power over how land deeded under a federal patent is used. Johnston's mining claims would supercede any other use or restriction.

"We are arguing a pre-emption of county ordinances and restrictions," said Johnston's attorney, Bruce Collier. "All of the claims where the alleged offenses occurred is on patented mines."

But, the county disagrees with the interpretation of Johnston's rights and argues that he should have at least sought a county conditional use permit for his operation, which does not conform to the county's mountain overlay ordinances governing hillside development. Prosecuting Attorney Tim Graves looked to apply the county's 2000 zoning ordinance, which cites special use permits. But, Judge Elgee accepted Collier's argument that the county's older ordinance in place at the time of the 1999 cease-and-desist order should be applied if any county rules are considered in the debate. According to the older ordinance, a property such as the Minnie Moore patented mine could operate under a grandfather clause as the owner sees fit.

"The idea of a pre-existing, non-conforming use is not a new issue at all," Collier said. "The original basis for the county becoming involved is neighbor objection. One time (applying a grandfather clause) would have been thought of as perfectly normal. We're kind of an anachronism at this point."

Johnston has refrained from extraction activities until he can sort out his differences with the county. In the meantime, the Minnie Moore Mine area was put on a list of mine sites referred to the EPA by the Idaho Department of Environmental Quality in 2002 for a site inspection of a tailing pile that was created during mining operations by previous owners. The site inspection was done in 2004 when the EPA committed to cleaning up the six-acre tailings pile at the site that sits on property mostly owned by Johnston but includes a neighbor, Weigel said.

"Federal Resources Corp. re-started the flotation mill (in 1964) to reprocess silver tailings," Weigel said. "Carl has done a little bit of quarrying at the site but hasn't done any processing at the site. Our concern is (the) six-acre (tailings pile and any threats to) recreation and nearby residences."

Weigel said potential exposure hazards include lead, arsenic and other metals that pose a threat as dust or through direct contact. The goal is to isolate and contain the pile to prevent exposure and off-site contamination. In a meeting with the county last week, the EPA said their hope is to finish the project by the end of the 2005 construction season, which depends in part on who will pay for the cleanup.

Under EPA Superfund guidelines, the EPA must exhaust any possibility of having the entity responsible for initial contamination pay for remediation before federal dollars can be spent. The EPA told the county last week that they have approved a budget to do the work with its own resources if Johnston is unwilling or unable to do the work as required.

During the unrelated trial concerning Johnston's right to mine his property, a county engineer said under oath that 90 percent of the tailings pile was created from the adjacent Queen Mine, which is not owned by Johnston. The news has stuck the EPA with more research to do as it searches for how to fund the cleanup.

As cleanup negotiations proceed and Johnston awaits Judge Elgee's decision on the county complaint he has diverted from resource extraction in the last several weeks. He has been in the business of receiving some 21,000 tons of earth being excavated from the building site for the new Woodside Elementary School.

Truckloads continue to roll in daily as Johnston segregates stockpiles of clay and topsoil.

"The stockpile is good for everybody as long as the soil is acceptable material and provides adequate cover," Weigel said. "Johnston certainly could do it cheaper than we could. Free dirt. That helps a lot. We want to emphasize we're trying to work with Mr. Johnston in a way that is mutually beneficial. If that doesn't work out we are prepared to handle it with federal funds because we believe this is an issue that needs attention."

Johnston said his vision for the tailings pile is see it covered to EPA specifications and then manicured as park space, which could include playing fields or an equestrian center. As to how he uses his mining claims in the future, Johnston said that depends on what Judge Elgee decides.




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