Crested Butte to Sue BLM Over Backcountry Ski Area
By Jonathan Waldman
April 13, 2004 The town of Crested Butte, Colorado, is filing a lawsuit against the Bureau of Land Management (BLM) over the privatization of the Red Lady, a beloved backcountry skiing area a few miles northwest of Crested Butte, on the south face of 12,392-foot Mt. Emmons.
Until last week, the battle over the Red Lady—one of the nation's longest-running legal disputes over a mining claim—seemed dormant. Then, on April 2, to the surprise of most Crested Butte residents, the BLM announced that 155 acres near the Red Lady's summit had been transferred to the Mount Emmons Mining Company, a subsidiary of the multinational mining company Phelps Dodge, for a mere $875.
BLM Director Kathleen Clarke issued Phelps Dodge nine patents for the land under provisions of the 1872 General Mining Law, which allows the BLM to inexpensively sell "valuable mineral deposits" for reclamation.
Though a Clinton administration moratorium, enacted in 1993, has since prevented the BLM from assessing new mining applications under that law, some longstanding applications, including the Red Lady claim, were grandfathered under the 1872 provision. Other grandfathered claims include proposals in California's Mojave National Preserve, Washington's Okanagan Wilderness, and Idaho's Salmon River Mountains.
Coloradoans were quick to criticize the land swap. One Denver Post reporter referred to the law as "antiquated," while a Denver Post columnist called it, "a worthless 132-year-old law" and ridiculed the absurdity "that comes when 21st-century leaders operate under 19th-century laws."
Locals claim that the BLM land transfer was sneaky, and fear that the mining company has plans to develop, subdivide, or build on the land—all permissible under the 1872 law. Locals are also upset that the mining company purchased the prime real estate for only $5 per acre in a town where one tenth of an acre can sell for over $100,000.
Crested Butte, a former coal and silver mining town itself, has vehemently opposed mining claims on the Red Lady since 1977, when a newly-formed local non-profit, the High Country Citizens' Alliance (HCCA), fought successfully to "save the Red Lady" from a molybdenum mine proposed by Cyprus-Amax. Since then, the Red Lady has become emblematic of the quaint resort town; HCCA recently threw its 27th annual fundraiser called the Red Lady Ball, and locals proudly swill Red Lady Ale.
As Roger Flynn, the attorney who will be representing HCCA and Crested Butte (and potentially Gunnison County) in an upcoming suit against the BLM, told Crested Butte News, "This was the first time where a mining town said, no, our future is different from our past."
In 1992, HCCA filed suit again against Phelps Dodge, when the company applied for purchase of 174 acres near the top of the Red Lady. HCCA won the case, but a federal appeals court overturned the decision, ruling that Phelps had the right to apply. Since then, the price of molybdenum has crashed, and mine opponents have argued that such an operation on the Red Lady would not be profitable, making the company's patent invalid. But the BLM has dismissed such protests, citing evidence that the mine—if one were built—could produce in excess of $150 million over its 11-year lifetime.
Flynn, though, says Phelps Dodge is equivocating. He points to a separate lawsuit, in which the company revealed that it is eager to sell Crested Butte-area mining claims because it currently spends more than $1 million a year to pay for a nearby water treatment plant, required by Colorado environmental regulations. "They're telling a federal judge it's unfeasible, but they're telling the Department of Interior that this will be one of the best molybdenum mines ever," Flynn said. "We're going to point out this inconsistency."
Flynn expects the suit to go to court this month. He told the Crested Butte News that the only other solution is to buy Phelps Dodge out. "And I can tell you," he said, "it's not going to be $5 an acre."
