PENDLEY: Forest Service dims alabaster’s gleam

Overregulation keeps the stuff of artistic legend stuck underground

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Alabaster may have been popular with ancient artisans, who used it through the ages to carve masterpieces of sculpture, but 21st-century minders look with disfavor when modern counterparts seek to mine it.

At the Metropolitan Museum of Art in New York City, alabaster, which is composed of calcite or gypsum — with swirls of cream and brown — is featured in works from antiquity. From Egypt come “Fragmentary Face of King Khafre” (circa 25202494 B.C.), “Cosmetic Jar in the Form of a Cat,” with inlaid eyes of rock crystal and copper (circa 19911783 B.C.), and “Canopic Jar Lid,” with glass and stone inlays (circa 13401336 B.C.). Other exhibits, which span the centuries and the continent, include “Christ on the Road to Calvary,” “Saint James the Greater” and “Charity.” Because of its ease in carving, soft, smooth texture, white, delicately shaded color and translucence, alabaster is still sought after for decorative objects.

Coloradan Robert Congdon owns 10 mining claims within the White Banks Quarry, an alabaster, marble and gypsum deposit located beneath Mount Sopris in the White River National Forest near Carbondale in Pitkin County. He located the claims in 1988 and in 1992, filed a mining permit with the county and a plan of operations with the U.S. Forest Service. In 1998, the county granted a 20-year permit. Because of the National Environmental Policy Act, the Forest Service conducted an environmental analysis and approved his plan but limited operations to the period between May 1 to Nov. 15. However, his plan was for year-round operations after an initial trial period of Forest Service monitoring. Over the years, amendments were approved by the Forest Service, but Mr. Congdon was not authorized to operate during the winter and early spring.

In 2003, he sought authority to begin year-round operations, but Forest Service officials procrastinated and Mr. Congdon was forced to shut down. Despite the value of his deposit and the desire for his world-class alabaster, Mr. Congdon cannot operate economically unless he is able to work year-round. Then, when the original plan of operations expired in 2010, he submitted a new plan that included winter operations. In April 2011, after meeting with Forest Service and Pitkin County officials, he modified his plan to reduce winter operating hours, minimize lighting, end winter camping by employees, and limit outdoor winter surface activity to loading and removing ore. Again, the Forest Service procrastinated and approved an interim plan that allowed Mr. Congdon to work as before, but during winter.

In response to the 2011 proposal, the Forest Service prepared yet another environmental analysis, in which it considered three options: (1) no action; (2) approve Mr. Congdon’s plan, or (3) restrict mining, once again, to the May through November period. In March 2012, the district ranger published a finding that barred all winter operations because of “issues raised about potential impacts to bighorn sheep during critical winter periods.” Mr. Congdon appealed the decision and, in August 2012, the forest supervisor reversed the district ranger’s decision after finding there was not enough evidence in the environmental analysis linking Mr. Congdon’s proposed winter operations to the declining bighorn sheep population. The forest supervisor vacated the earlier decision and remanded the case to the district ranger who, relying on the fatally flawed study, once again barred Mr. Congdon from full use of his mine.

Unfortunately, there are scores of cases in which federal agencies abuse the National Environmental Policy Act. Mr. Congdon decided he would not be victimized by bureaucrats who won’t admit that under the law, he must be granted reasonable use of his property. He has sued the U.S. Forest Service and its officials. If his case makes it to the Supreme Court, perhaps he will get a chance to visit the Metropolitan Museum of Art in New York and see its alabaster displays.

William Perry Pendley, a lawyer, is president of Mountain States Legal Foundation in Denver.

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