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"Mine" games at Murfreesboro.

"Mine" Games At Murfreesboro

Diamond Chase Heading For Long Life In Test Drilling Appeal

Diamonds are forever and so are some stories -- like the Crater of Diamonds testing and mining controversy.

It's been five months now since Judge Susan Webber Wright halted test drilling at the Murfreesboro state park. While involved parties have put away their manila file folders and drill bits and moved on to other pre-occupations -- at least temporarily -- this story still only has a beginning and a middle, but no end.

Legal briefs in an appeal of Judge Wright's decision are due January 17 at the 8th Circuit U.S. Court of Appeals office in St. Louis. The parties in the appeal remind one of heavyweight prizefighters, confidently spouting off to all who will listen that they will be victorious.

"I'm very optimistic. I think we have a good case," says Byron Freeland, lead attorney for the appellant mining companies who want to finish testing, particularly since it might verify their hunch that millions of dollars of diamonds are involved.

"I'm confident we're going to prevail. Wright made a well-reasoned decision," says Jim Stanley, lead attorney for the appellees, the environmental groups, who hope to halt testing once and for all.

The testing was initiated so that the size of the diamond bed and the quality of the diamonds could be assessed. However, only five test holes were made before the drilling was stopped, leaving a lot of questions unanswered.

Just who is and who is not still involved and their sentiments on the appeal is the crux of the story at this point. Is this politics? Business? Environmental rape? Depends on who you ask.

Where Things Stand

After briefs are filed in the next couple of weeks, a request for oral arguments will probably be made and granted. These would be held in the spring. A decision may not be handed down until the summer or fall of 1991.

The time frame, while frustrating for the uninitiated, is not unusual. "I've had appeals up there (St. Louis) for over a year," says Stanley.

In fact, the prospect of a lengthy legal battle is one of the reasons the state Parks, Recreation, and Tourism Commission, a defendent in the original lawsuit, chose not to pursue an appeal of Judge Wright's August decision to halt test drilling.

"They're not in this to be litigants for the next few years," says Jeff Bell of the attorney general's office.

Bell figures that even if Phase One testing was allowed to continue, each later phase would be challenged and the controversy could stretch on for a decade or more.

"We feel the judgement is wrong and testing should have been allowed, but I understand my commission's decision not to appeal," says Bell. "I think it's a 50-50 case -- it's not a dog appeal -- but they have to realize the parks commission is there to run the parks system. We carried the fight in the summer, but they have valid reasons not to proceed."

If the 8th circuit were to overturn Judge Wright's decision, the commission feels it would be contractually obligated to finish Phase One testing, which means about another 25 holes would be drilled.

If the appeal works, "then, there," says Richard Davies, executive director of the state Parks Department.

Bell agrees it is that simple. If the appeal works, "the state's attitude is |fine, we'll let them start testing again.' If the Sierra Club and those people win, then we won't have any more testing."

The 8th Circuit could also uphold Wright's ban or remand the case back to her.

Who's In The Ring

The original plaintiffs included the Arkansas Wildlife Federation, the Friends of the Crater, and the Arkansas Chapter of the Sierra Club. Defendents were the state Parks Commission and the national Department of Interior and National Parks Service.

(The federal parties had approved testing, and it was on that approval the state had proceeded.)

After Judge Wright's decision to halt testing in August, parties had 60 days to appeal.

It seems the feds originally decided against an appeal. The state took that into consideration at its August parks commission meeting where it voted not to appeal.

"The state figured if the feds aren't going to defend their own decision, why should we get in there?" says attorney Bell.

It was at this point that two of the four mining companies which were financing the testing, Kennecot of South Carolina and Capricorn of Australia, asked to intervene in the case and waged the appeal. (The other companies, not involved in the appeal, are Continental Diamond, based in Canada with an office in Little Rock, and the joint venture of Sunshine Mining, Arkansas Diamond Development Co., and Stephens Inc.)

It wasn't until the last minute the Department of Interior joined in the legal debate. "We think some political pressure was put on the Department of the Interior to appeal," says Terry Horton, director of the Arkansas Wildlife Federation.

As for the state Parks Commission, its members met last September in Heber Springs and voted not to rescind their August decision. That vote was not made without some sort of political pressure, either.

Just days earlier, the state Legislative Council passed two resolutions providing for a group to meet with the governor and the commission concerning the appeal and urging them to act.

The resolution contains some strong language: "Be it further resolved that careful review of this matter makes it imperative that the commission appeal the federal injunction which has stopped the testing..." A third, basically re-iterative, resolution was passed on the last day of the commission's September meeting.

Davies says Legislative Council members who addressed the commission and his group "obviously took note of what the legislature said" before making a decision. "It was as hard as any decision we've ever made," he says.

Other Bothersome Questions

As the legal battle is played out, another bothersome question tickles the conscience. Why are two of the four mining companies willing to shoulder the legal burden of the appeal, when all stand to benefit equally if the appeal prevails?

The four mining groups were equal financial partners in the test drilling. If (and that is a critical word to everyone) mining were ever allowed, it is only these four groups that would be allowed to participate because of their initial financial commitment. Yet, two of the four are shelling out thousands, and probably tens of thousands of dollars to advance that possibility, while the other two are waiting on the sidelines.

"That's right," says Freeland, attorney for the appealing companies. But he doesn't seem to think it's bothersome.

PHOTO : DIALING FOR DIAMONDS: While tourists poke around in the diamond field at Murfreesboro, some mining companies believe that millions of dollars of diamonds are languishing below the surface.
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Title Annotation:diamond mining and testing controversy
Author:Ford, Kelly
Publication:Arkansas Business
Date:Jan 7, 1991
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