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Judge deals latest setback to uranium mining effort

SoVaNow.com / August 03, 2020
The right of three Chatham-based companies to mine uranium in Pittsylvania County was dealt another blow when a circuit court judge in Wise County upheld the constitutionality of Virginia’s 38-year-old ban on such mining.

On Thursday, Judge Chadwick Dotson ruled that the state had a compelling interest in banning uranium mining. While the moratorium may have damaged the plaintiffs’ property by diminishing its value, the plaintiff’s ownership rights had to be balanced against the greater good, which he said tipped in favor of the people of Virginia.

“Inherent in every right is a correlating duty,” Dotson wrote, adding an admonition that a landowner cannot use his property in a way that injures his neighbors. He explained that the private interests of a landowner “must be made subservient to the general interests of the community.”

Plaintiff Virginia Uranium Inc. (VUI) is a Chatham-based company that for more than a decade has sought legal relief to mine what is said to be one of the largest uranium deposits in the United States, a 119-million-pound deposit of ore located at Coles Hill in Pittsylvania County. Plaintiff Coles Hill LLC owns the surface rights to the Coles Hill property and Bowen Minerals LLC (“Bowen”) owns the mineral rights which it leased to VUI in 2007.

The Commonwealth banned uranium mining in 1982, shortly after uranium deposits were discovered in Pittsylvania County near Chatham.

According to Dotson, “In one last effort to be able to utilize their property, VUI, Coles Hill and Bowen filed suit against the Commonwealth [of Virginia]” in Circuit Court in Wise County.

Plaintiffs had asked the court to declare the mining ban unconstitutional. By doing so, Dotson said plaintiffs were asking the court to substitute its judgment for that of the legislature, which he was unwilling to do. “Even the highest rights cannot be used in a vacuum; we are not solitary creatures. Our actions impact those around us, and sometimes those actions must be hemmed in so as to protect others,” Dotson wrote.

Thursday’s decision comes more than a year after the U.S. Supreme Court ruled that Virginia had a right to ban uranium mining. In that case VUI claimed that jurisdiction over uranium mining belonged to the Nuclear Regulatory Commission under the 1954 Atomic Energy Act. The company alleged that Virginia had overstepped its authority with the mining moratorium, first put in effect in 1982.

Writing for the majority of the court, Justice Neil Gorsuch said, “Congress conspicuously chose to leave untouched the states’ historic authority over the regulation of mining activities on private lands within their borders.”

The case decided Thursday tried unsuccessfully to attack the moratorium on three grounds: first, by claiming the ban unconstitutionally took private property belonging to both Coles Hill and VUI, then by arguing that the state had no compelling governmental interest when enacting the ban and finally that the ban was not the least restrictive means available to the state to protect the health and safety of the public.

Dotson said his decision to uphold the ban “was not made flippantly” but “with utmost solemnity.” He cited historical law treatises from England and France as well as philosopher John Locke in support of his reasoning.

He conceded that the ban does “damage” VUI’s property rights. “Absent the mining moratorium, the mineral estate is estimated to be worth at least $427 million, whereas with the mining moratorium, the mineral estate is worth exponentially less.” That loss, he said, was outweighed by “the Commonwealth’s rightful duty to protect the public from injury and to protect the health, safety and welfare of the citizenry.”

Dotson found that the inherently dangerous nature of a uranium mining operation at Coles Hill posed a “significant potential for the development of a nuisance,” which he said the government “has the right, authority and the duty to prevent.” He agreed with defendant’s expert, Paul Locke, who testified that less restrictive alternatives to the comprehensive mining moratorium would not be as effective as the moratorium.

Dotson said he was not swayed by plaintiff’s expert, Dr. Knapp, who argued that with proper regulations in place, mining and tailings storage could be done safely and effectively. Dotson focused instead on the consequences that could befall the public and the environment because of the fallibility of humans. “Regulations must be complied with by man, who are fallible and imperfect. If a regulation is not complied with, then the harm done by compliance failure cannot be undone. People getting cancer from drinking tainted water cannot be undone. A corporation can be fined, but fines do not bring back health; they do not bring back life; they do not bring back safety; and they certainly do not remedy harm done to the earth.”

Dotson dismissed Knapp’s claim that the storage of mine tailings could be done as safely at Coles Mill as is currently occurring at two existing uranium mining sites in desert locations, Yucca Mountain, Nev., and Carlsbad, N.M. “There was scant evidence that could lead this Court to believe that any other mining sites and storage facilities are located at sites with similar environmental characteristics to the Coles Hill site, specifically with respect to Virginia’s wet climate and population density.”

He distinguished the mining operations at Yucca Mountain and Carlsbad by pointing out that “those states, through the will of the people, made their own decision to utilize their land for such use,” something that was not done in Virginia. Conversely, “the evidence at trial showed, the will of the people here in this great Commonwealth, which is historically a great defender of property rights, finds that uranium mining is not worth the risk.”

“Clearly their [VUI, Coles Hill and Bowen] property rights have been harmed, but the greater harm would be against the people,” Dotson wrote before concluding that, “the common law supports [the ban]. Common sense supports it. To find otherwise would be untenable.”

Virginia Attorney General Mark Herring, who has defended the ban through the various court challenges, said in a statement that the decision “once again affirms that Virginia is well within its right to regulate mining activities in the Commonwealth.”

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