Hardrock Mining Showdown
by Tony Davis
For background on previous coverage and history on the 1872 mining law, read our Editor's Note
Geologist Jeff Cornoyer steers a Ford van over a rocky, rutted, winding dirt road, climbing the foothills of the Santa Rita Mountains on a toasty August morning. The desert here, about 30 miles southeast of Tucson, is dotted with shade-giving oak, juniper and mesquite trees. Cornoyer stops in a natural bowl surrounded by ridges and buttes and tries to explain to his passengers -- local government officials and a journalist -- why this place should be transformed into the country's third-largest copper mine.
"The people I want to inform are the people who don't know much about the project," he says, implying that those who do know a lot about it have already made up their minds. Some, like Cornoyer, think it's a great idea. Others see it as a disaster in the making.
Cornoyer's employer, Rosemont Copper -- a Tucson subsidiary of the Canada-based Augusta Resource Corp. -- wants to spend a billion dollars to dig a half-mile-deep pit here. Rosemont promises to handle the ore and tailings in a careful way, and to continually restore the land and vegetation during the decades of the project's life. The company calls it "sustainable" mining.
Tours like this one are part of a savvy public-relations effort that includes company promises to create many high-paying jobs and even install solar panels on its offices. Copper is essential to a green economy, Cornoyer points out: Hybrid cars need more copper than conventional vehicles, and photovoltaic panels also need the element.
Nevertheless, Rosemont's proposal has sparked a typical Western-style battle over mining. Opponents, who number in the tens of thousands, worry that the mine would have environmental impacts far beyond the 995 company-owned acres in the core of the site, and on a much larger scale than the primitive mining that occurred in this area from the late 1800s up to the mid-1900s. Rosemont would have to blade 3,670 acres of federally owned desert for its operations, including disposal of tailings and other wastes. The mine might also diminish the water table, drying up neighboring creeks and springs, and damage Native American cultural sites. So environmentalists have filed lawsuits trying to stop it. Now it's become a battle over the heart and soul of this whole area.
At the center of the swirling arguments, the agency directly in charge of the federal land, the U.S. Forest Service, has studied the plan for more than two years and hopes to release a draft environmental impact statement by the end of this year. The Forest Service is trying to sort out the pluses and minuses. But the fundamental issue is the same as the one that underlies many other battles over mining: Has the decision already been made by a 138-year-old law?
With one exception, the feds have never even seriously attempted to deny a mine proposal on federal land, since the passage of the General Mining Act of 1872. Mines have been stopped by court rulings, permit delays, overwhelming local opposition, economics, regulations on pollution and so on -- but never because a federal agency simply said no. Still, Rosemont Copper sounds a little worried: A prominent message on its website insists, "The General Mining Act of 1872 continues to guarantee the ability to mine claims. ..."
Mining opponents throughout the country hope for a breakthrough here. They want the Forest Service to make history by voicing the first clear federal "no." And -- despite considerable waffling -- the agency has at least hinted that it might do so.
According to the 1872 law, "All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase ... by citizens of the United States."
Generally, that language has been seen as a green light for all mining on federal land. And the green light shines mostly in the West, because most federal land is in our region. Yet the legal reality is complicated. Over time, more laws and regulations have given the Bureau of Land Management and the Forest Service greater authority to shape mining proposals through issues such as water quality and endangered species. The 1976 Federal Land Policy and Management Act (FLPMA) went the furthest, giving the BLM a vague power to stop "unnecessary or undue degradation" from mining. Forest Service laws and regulations have no such language. Yet many environmentalists think the agencies can deny a high-impact mine even if it technically satisfies the environmental laws.
The mining industry says that the 1872 law effectively establishes a private property right on federal land. Once a claim is filed properly and a mineral deposit is discovered, if the feds refuse to allow mining, it's a "taking" that requires the government to compensate the claimant, says Timothy McCrum, an attorney in Washington, D.C., who represents the National Mining Association. Such compensation could total many millions of dollars, another reason why the feds have been reluctant.
The Clinton administration made the last serious effort to toughen mining regulations, but it still felt compelled to pay a Canadian company $65 million in 1996 to stop the New World gold mine, proposed for a national forest on the edge of Yellowstone National Park. The feds' legal power over that mine was murky because much of the ore body was on private land; a buyout was faster and more certain than the years of litigation that would have ensued from an attempt to say "no," according to John Leshy, the top lawyer for Clinton's Interior Department and its point man on mining regulation.
The Clintonites did try to say "no" when another Canadian company, Glamis Gold Ltd., proposed using cyanide heap-leaching to mine more than a million ounces of gold from an open pit on BLM land in the California desert. The neighboring Quechan Indian Tribe objected, arguing that the site was sacred aboriginal land, comparable to Jerusalem or Mecca. In late 2000, Leshy issued an Interior Department opinion citing the "unnecessary or undue degradation" language in FLPMA, and holding that the BLM could deny a mine to avoid "substantial irreparable harm" to important resources. Around the same time, the BLM announced that the California site was off-limits to mining.
But those Clinton stands were difficult to maintain. When the Bush administration took over, it quickly reversed both and issued new regulations saying that if undue environmental degradation is necessary for a new mine, that's OK. Environmentalists responded with a lawsuit, and things grew even more complicated when U.S. District Judge Henry Kennedy -- a Clinton appointee based in D.C. -- came down on both sides of the issue. Kennedy ruled that Leshy's interpretation of FLPMA was correct, but upheld the Bush regulations on the grounds that the government can prevent undue degradation on a case-by-case basis without having a formal veto power over mining.
The Glamis mine was finally killed indirectly by California's government, which passed a state law and regulations in 2003 requiring that all open-pit mines be backfilled once the minerals are gone. Glamis said that made the mine uneconomical. Still, in another indication of the industry's determination, Glamis filed a claim under the North American Free Trade Agreement, charging that the United States had expropriated its property rights. Last year, a three-person NAFTA Tribunal ruled against Glamis, saying that it found no evidence that state and federal officials had shown a lack of due process.
Today, BLM officials say they can reject a mine proposal that causes "unnecessary or undue degradation." But when companies become worried that will happen, they modify their plans so they're acceptable to the agency. Many environmentalists think that effectively allows a destructive industry far too much leeway. As for the Forest Service's authority -- or lack of authority -- Leshy says, "It is all very murky now."
And so mining opponents have had to modify their own strategy, battling mines from many angles. Nowadays, for instance, they're challenging other Bush regulations that authorized a longstanding practice: Companies often file claims on federal land where they have no plans to mine; they just need a place to dispose of waste rock and tailings. Typically, the feds don't check whether those claims are actually going to be mined; they just see the land as part of the broader mining operation.
Numerous environmental groups, including the local Save the Scenic Santa Ritas and national Earthworks in Washington, D.C., are pushing a lawsuit that would force the Forest Service to conduct validity exams on Rosemont and other proposed mines in Colorado and Nevada. "It's pretty obvious to us that Rosemont doesn't have valid claims on federal land (where it plans to dump tailings)," says Roger Flynn, an attorney with the Western Mining Action Project in Lyons, Colo., which represents environmentalists in the case. "How can they be valuable claims if they are dumping waste on them?"
There are other ways the Rosemont Mine might be stalled or stopped: The company needs an Army Corps of Engineers permit to modify a stream channel, and county and state agencies have to approve various aspects. But all that skirts the fundamental question: Can the feds say no, period?
Rosemont Copper's Cornoyer, 37, is a native Arizonan who has a geological sciences degree from Arizona State University. He begins the tour of the company's properties in the red-brick headquarters of the sprawling Rosemont Ranch -- 30,000 acres, 90 percent of which is leased public grazing land. The company, which bought more than a dozen parcels to assemble the ranch five years ago, says it's another commitment to environmental values: Open space is preserved and cattle are raised without artificial hormones and antibiotics. And some of the grazing rights are around the mine site, so the purchase reduces the chance that local ranchers would oppose mining.
Cornoyer pitches Rosemont's five-point platform, which indicates how far some mining companies will go to win approval these days.
First, he says, Rosemont Copper is a transparent corporate citizen, posting all its reports on its website and creating a $25 million endowment fund to funnel $50,000 annually to community groups, such as the local food bank.
Second, Rosemont will use modern technology to limit the mine's water use. While it would pump up and use as much as 6,000 acre-feet of groundwater a year, it would recharge the groundwater by building a 36-mile-long pipeline to tap the Colorado River water in the Central Arizona Project canal. And it has already bought nearly a decade's supply of river water.
Third, Rosemont plans to start reclaiming the landscape as soon as it starts unearthing copper, molybdenum and silver. A key part of that strategy is the cattle, whose hooves will press grass and shrub seeds into the soil cap on the tailings, increasing the chances of plant growth. Their trampling will also keep down invasive weeds, while the manure will make the soil more fertile.
Fourth, the company will build huge "screening berms" on the mine's eastern edge to hide the pit, the tailings and the "oxide ore heap" from drivers on a nearby scenic highway. As Cornoyer puts it, "We are the first hard-rock mine that used a landscape architect firm."
And fifth, Cornoyer says, Rosemont is a "southern Arizona project designed by your neighbors," with local companies doing the engineering work, the groundwater consulting and the reclamation plan.
On the tour, he adds that the plan also includes a dry stack tailings system, which would not only use less water than a normal tailings pile, but also limit seepage of pollutants into the aquifer. He points to large bare spots on hillsides that have been cleared for test plantings of grass and shrub seedlings for the reclamation, part of a University of Arizona-sponsored project. "We all want this to be a native ecosystem," he says. "It's one thing to have us say, ‘Trust us.' It's another thing to have a UA researcher on the job."
When Cornoyer is asked about opposition to the mine, he responds that the U.S. has the strictest environmental laws in the world, and Arizona has 65 percent of this country's copper. He believes Rosemont's mine would be better for the planet than mining in Chile or the Congo.
Rosemont Copper boasts that its polling shows that a majority of people in the Tucson area support the mine and the possibility of new mining jobs. Several Chambers of Commerce and other local business groups have endorsed it.
But the Arizona Game and Fish Department appears concerned. In 2008, wildlife biologist Joan Scott wrote a letter to the Forest Service on behalf of the agency, warning: "Despite any and all mitigation measures, this project will result in significant adverse impacts to wildlife, wildlife habit and wildlife recreation. ... (It) will render the northern portion of the Santa Rita Mountains virtually worthless as wildlife habitat and a functioning ecosystem." She also said that re-establishing native vegetation would be far more difficult than the company predicted. And she effectively urged the Forest Service to consider saying "no" to the Rosemont Mine.
Other opponents include Catholic nuns who live in an abbey near the site; retirees in largely Republican Green Valley who value scenery more than mining; middle-class tract-home owners in Sahuarita, a Tucson exurb; artists and entrepreneurs in touristy small-town Sonoita and Patagonia; two Republican county supervisors in Tucson; and two local Democratic members of Congress. Many local governments also formally oppose the mine, along with half the area's state legislators.
In October 2009, critics were out in full force when Agriculture Secretary Tom Vilsack -- the political appointee in charge of the Forest Service -- sent a deputy, Jay Jensen, to tour the site and listen at two public hearings. At the first hearing, in Elgin -- the heart of Arizona's wine country, which is just east of the site -- Santa Cruz County Supervisor John Maynard said the mine would harm ranches, tourism and the wine industry. Wade Bunting, president of the Sonoita Community Action Alliance, warned that the dozens of 24-ton tractor trailers leaving the mine daily will make the scenic highway unsafe.
Nan Walden, from a farming family that has pumped groundwater to grow pecans for generations -- under state controls since 1980 -- blasted the mine proposal, noting that it would face laxer regulations than her farm does. She pointed out that mining is now less than 1 percent of the state's economy, compared to tourism at almost 10 percent. And Arizona's tourism largely relies on scenery and outdoor recreation and other uses of public land. There are already 50,000 abandoned mines on the national landscape, she said. "Is this the legacy we want to leave our children and grandchildren?"
At the second hearing, in Green Valley, activist Mike Carson warned that if the Rosemont Mine is approved, it would send a signal that the rest of southeast Arizona's "Sky Islands" -- biologically unique isolated mountain ranges -- are also up for grabs. Ned Norris Jr., chair of the Tohono O'odham Nation, said the Rosemont site was the ancestral land of the long-vanished Hohokam community. An archaeological survey found traces of ancient pit houses, food caches, hearths, a stone platform -- even a ballcourt -- from the era roughly spanning 400 to 1200 A.D.
"We have history. We have stories. Those stories and legends we continue to share," Norris said. "What will that mine do? It will harm our environment and devastate the habitat on which many species depend."
Pima County Supervisor and seventh-generation Tucsonan Richard Elias, a Democrat, told the Green Valley crowd he was almost hoping that day would be windy, so the federal politico, Jensen, could taste the dust spewing from tailings of active and closed mines around Green Valley. Roger Featherstone, an activist for the Arizona Mining Reform Coalition, ridiculed Rosemont's argument about the need to keep this country self-sufficient in copper, given that the company plans to sell much of its copper to China for processing.
"The bottom line is, if there was ever a poster child for reform of the 1872 Mining Law, it's right here," Featherstone says. "The opposition is profound. There are very good scientific, cultural and social reasons for it. Yet we have agencies saying there isn't a lot we can do because of an antiquated law."
Under all this pressure, the Forest Service has been flip-flopping on Rosemont.
In 2007, then-Southwest Regional Forester Harv Forsgren, based in Albuquerque, said at a congressional hearing that in lands open for mineral entry under the 1872 law, "the statutory right of the public to prospect, develop and mine valuable minerals is fully honored and protected."
But in June 2008, then-Coronado National Forest Supervisor Jeanine Derby, based in Tucson, with direct authority over the mine site, disagreed. In an interview, she said the Forest Service could adopt a "no action" alternative in the environmental impact analysis, if it concluded the mine plan was not acceptable and could not be mitigated, effectively requiring the company to produce a whole new plan. But a year later, the agency said in an unsigned memo to local government: "The Forest Service cannot categorically prohibit mining activity or deny reasonable mineral operations under the mining law … selection of a no-action alternative is outside the discretion of the Forest Service."
In October 2009, Agriculture Secretary Vilsack echoed that view in a letter to a Green Valley activist. But 24 hours later, the day before his deputy visited the area, Vilsack retreated. He wrote U.S. Rep. Gabrielle Giffords, a Tucson Democrat, saying that the first letter had been sent out by mistake after he had reviewed an initial draft and didn't like it. He asked that the letter be held up and promised no decision "until we have completed a thorough review of the proposed mine, the mine plan of operation and any required mitigation."
Yet in July 2010, an internal draft of the agency's first chapter of its draft environmental impact statement said that it can't "categorically" stop mining activity or deny legal mining operations at the site. A month later, the acting Southwest regional forester, Francisco Valenzuela, said that nevertheless, "The Forest Service hasn't made a clear decision on which way we are going."
Because the agency has no timetable for releasing a final Rosemont EIS, let alone for making a final decision, nobody knows when that last word will come down, or what it will be. Many Westerners who want reform of the old mining law -- and many who don't -- are waiting to hear.
This story was funded with reader donations to the High Country News Research Fund.© High Country News