Uranium exploration permit appeal delayed

RAPID CITY - A judge in Rapid City has delayed hearing an appeal of a state-issued uranium exploration permit to give two environmental groups time to formally ask that he be removed from the case.

"If anybody thinks I hunger to sit on this case, they are wrong," South Dakota 7th Circuit Judge Jack Delaney said in a short hearing Monday morning. "This is not the highlight of my caseload."

Defenders of the Black Hills and ACTion for the Environment have appealed a uranium exploration permit that the state Board of Minerals and Environment awarded Powertech Uranium Corp.

Powertech's permit allows the company to drill 155 exploration holes northwest of Edgemont.

The environmental groups asked Delaney to recuse himself because a private law firm Delaney was with in the 1980s had represented Homestake Mining Co.

"If you're an advocate for mining companies, how can you separate yourself from that?" attorney Cindy Gillis, who represents the two groups, asked after the hearing.

Delaney declined to recuse himself, saying he left that law firm in 1988 and that other lawyers in the firm were the main attorneys for Homestake. Also, Homestake did not mine for uranium in the Black Hills. But Delaney gave Gillis two days to file an affidavit asking 7^th Circuit Presiding Judge Jeff Davis to remove Delaney from the case.

Gillis said she wasn't sure whether the groups would file the affidavit.

At the same hearing Monday, South Dakota assistant attorney general Rich Williams filed motions to dismiss the environmental group's appeals, saying they had not been filed soon enough.

Gillis and Charmaine White Face of Defenders of the Black Hills said later that appeals had been filed within the 30 days required.

Delaney, however, said he couldn't rule on anything related to the case until he was sure Davis would not ask him to step down.

Delaney said if he remained on the case, another hearing would be scheduled soon, but the outcome remained in doubt.

"The status of the case is about as confusing as a case can get," Delaney said.

The Board of Minerals and Environment approved the exploration permit in January, and a number of individuals and groups appealed the decision.

Delaney said it was uncertain which groups or individuals filed appeals correctly because appellants were not represented by attorneys in the first round of appeals.

Also confusing the issue, the initial archeological evaluation of the exploration permit was incorrect. The board re-opened the hearing to admit new archeological data, then issued a revised permit.

That re-issued permit also was appealed.

Delaney said it was unclear who had followed the appeals procedure correctly and what part of the permit had been correctly appealed.

White said the process had been "flawed from the beginning."

Further complicating the matter, exploration already has already begun in Fall River County, which is why the two environmental groups were hoping for a quick ruling to stop it.

Powertech attorney Max Main of Belle Fourche declined to comment after the hearing.

Powertech's permit allows it to drill 155 exploratory holes in the remote Dewey and Burdock areas in preparation for uranium "solution mining." In solution mining, a chemical solution is pumped into wells into an ore body. The solution dissolves the uranium ore, or yellowcake, which is extracted through other wells.

White Face and others say the technique threatens groundwater quality.

Powertech disagrees. However, if the exploration shows there is enough uranium to mine, the company will have to get mining permits from the state of South Dakota, the Environmental Protection Agency, and the Nuclear Regulatory Commission.

Uranium has not been mined in the Edgemont area for decades, but recent price increases in yellow cake have fueled a boom in uranium exploration throughout the West.

Contact Bill Harlan at 394-8424 or at bill.harlan@rapidcityjournal.com