12.1 Uranium (drb)

Walter Coles, president and CEO of multiple uranium companies, gestures toward the northern deposit of ore situated on Coles Hill in November 2009.

Just this past summer, Virginia Uranium Inc. (VUI) reached the end of the legal road when the U.S. Supreme Court rejected arguments that Virginia’s decades-old moratorium on mining uranium was illegal under federal law.

Lawyers for VUI, based in the Pittsylvania County seat of Chatham, argued that the Atomic Energy Act of 1954 superseded any state regulation of the industry and any steps along the production process. Legal experts said when the company began its battle on those grounds that it was the equivalent of a “Hail Mary” pass. The 1954 federal law, they said, covers the development, regulation and disposal of nuclear materials and facilities in the United States. “Development,” VUI’s lawyers contended, covered the mining of the non-radioactive ore, which state officials contended was solely an environmental issue.

The court rejected that argument in Virginia Uranium v. Warren in a 6-3 ruling that brought together justices from across the ideological spectrum to uphold Virginia’s mining moratorium.

The end of the road, you might think, for VUI. You’d be wrong.

It turns out that VUI lawyers back in 2015 had filed a state lawsuit in Wise County Circuit Court that was put on hold as the federal case made its way through the system to the Supreme Court. Now that that legal fight has ended in defeat for VUI, the state suit has been revived.

(Wise County, you might be interested to know, located in far, far Southwest Virginia, past the cities of Bristol and Abingdon, in the middle of what was once the heart of the commonwealth’s coal country. From Chatham to Norton, the county seat of Wise County, it’s a 230-mile trip that takes more four hours.)

The 119-million-ton uranium deposit beneath Coles Hill Farm is the largest untapped deposit in the United States. Based on current uranium prices on the international market, it’s valued at about $6 billion, though the valuation has been as high as $10 billion in years past. VUI has argued that mining the ore would create hundreds of jobs over the 35-year lifespan of the open-pit mine, in addition to the tax revenue generated for Pittsylvania County.

Between them, VUI and business partners Walter Coles and Henry Bowen own more than 3,000 acres, a portion of which would be mined for ore and then used to separate the ore from the rock encasing it, leaving behind what are known as radioactive “tailings” that would have to be stored on site.

The saga of this epic battle between Coles and mining opponents goes back to the late 1970s when the deposit was first discovered. Then, Marline, a Canadian mining company, planned to come in to extract the ore, raising alarm among local residents and environmentalists across the state. A lobbying and public relations battle roared on in Pittsylvania and in Richmond in the halls of the state Capitol. Finally, in 1982, Southside legislators, led by the late Howard P. Anderson Sr., a state senator from nearby Halifax County and chairman of the state Senate’s Committee on Agriculture and Natural Resources, enacted a one-year moratorium on mining, which became permanent a year later.

For the past dozen years or so, VUI has waged a multi-front war on the moratorium and come up short legislatively and in state and federal courts. Now, the lawsuit in Wise County seems to be its last hope to force the state to allow mining the Coles Hill deposit.

If experts believed the federal suit, just rejected by the Supreme Court, was a “Hail Mary” pass, then the state suit, now set for trial Feb. 10 to Feb. 14, is a “Hail, Hail Mary” pass.”

VUI’s lawyers are contending the state moratorium is an illegal and unconstitutional “taking” of private property, stripping it of any and all value. In its complaint, VUI contends, “Defendants’ [Virginia’s] actions have thus drained Plaintiff’s [VUI’s] mineral estate of all value.” Initially, VUI sought either a change in state in law to allow extraction or compensation of $483 million, but the court rejected the ability to receive compensation three years ago.

But the difficulty of proving VUI’s claim is that the law requires a finding that the government stripped the property in question of all value, not just a portion. University of Virginia law professor Rich Schragger is an expert in property law and takings claims. As he told Register & Bee reporter Caleb Ayers, “The law doesn’t guarantee that you get to do the most valuable thing with your land; the law only prevents the government from seizing it.” In other words, the land still has value, ostensibly negating the fundamental claim in VUI’s suit.

Aligned against VUI and its backers is an array of business interests — the Danville Pittsylvania County Chamber of Commerce, the River District Association in Danville and the Danville Industrial Development Authority — coupled with national environmental groups. This is a fight that Virginia has waged for almost 40 years. At every turn, VUI has lost, and we don’t see this Wise County suit resulting in a different outcome. It is time VUI and its backers accept that fact and move on.

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