NO DEPOSIT, NO RETURN
Mother Jones|September/October 2021
With a 150-year-old law under threat, public lands mining faces a reckoning.
ELIZABETH ROYTE

EARLY ONE MAY morning, I escaped Tucson’s unrelenting grid and drove south through Pima County on Arizona’s state Route 83, into the heart of the Madrean Sky Islands, an almost mythical landscape of shadowy, isolated peaks where several biological zones overlap. The blue-gray Whetstone Mountains marked the distant eastern horizon, the Patagonias loomed to the south, and to the immediate west rose the camelback ridgeline of the Santa Ritas. There, oaks and junipers stippled upper elevations, and rolling swells of grass blanketed low slopes. A haven for wildlife and a balm for those seeking respite in nature, this region contains some of the rarest intact ecosystems and the highest-quality streams among the deserts of the Southwest, providing habitat for ocelots, jaguars, and a dozen other endangered species.

I parked just off a rutted dirt road in the Coronado National Forest and walked several miles through sagebrush, mesquite, and brightly colored wildflowers. I was looking for old mining claim stakes and signs of big cats but contented myself with vultures, mule deer, and rabbits. Long before Spanish and American colonization, Native peoples prospected these mountains, leaving small scars on the hillsides. More than a century of grazing has helped woody shrubs displace grasslands, a process that climate change is exacerbating.

But worse may soon come. In 2017, the Forest Service, mandated to promote both production and recreation on public lands, approved a plan for the Rosemont Copper Company, a subsidiary of Canada-based Hudbay Minerals, to gouge some 660 million tons of rich ore out of this ground. To get at the precious metal, the company plans to excavate a conical pit roughly a mile wide and some 2,900 feet deep—sufficient to bury the Burj Khalifa, the world’s tallest structure. As it burrows through the water table, Rosemont will spit out 1.2 billion tons of waste rock and another 700 million tons of tailings, the finely ground material left after most metals and minerals have been extracted from ore, to be dumped and piled in massive heaps over several thousands of acres of adjacent Forest Service land.

The forest, the grasslands, and the washes that drain them will be no more. Mountain views will be obliterated, along with 18 miles of streams. When mining operations conclude approximately 20 to 25 years after they start, a deep lake will form inside that ore pit. Not only will this perpetually evaporating sink concentrate heavy metals and likely become toxic, it will also permanently reverse groundwater flows away from seeps, springs, and riparian areas for miles around.

I reached a spot within the mine’s planned footprint and sat. The wind shushed, and butterflies flitted. In 100 years, much of what was before me would be underwater, and the golden corrugation of land to the east would be buried under mounds of debris. Rosemont calls the shapes it would create “landforms”—a word that usually describes natural features. The company’s computer renderings of the site, with their sterile geometries of cone (the pit) and polygon (the plateaus of waste), evoked the land art of Robert Smithson. Their monochromatic regularity belied no sense that the ground they would cover is exuberantly alive.

The Rosemont mine would not be some weird outlier of public lands despoliation. Thousands of hard rock mines throughout the West have left behind similar ravages, all of which can be attributed to the General Mining Act of 1872, which has long been interpreted to give the mining industry the right to occupy public lands upon which valuable minerals have been found, no matter a mine’s impact on environmental or cultural resources. Written when miners with burros and pickaxes filled carts with high-quality deposits and rode away from relatively tiny piles of leavings, the law now seems an absurdly inappropriate legal framework for today’s mega-operators, who gouge low-grade ore from giant pits using electric shovels sporting 60-cubic-yard buckets while generating billions of tons of waste.

I continued my wanderings, following streambeds that were dry on that day but aren’t always: Each year, 20 inches of precipitation fall on and filter through the Santa Rita Mountains, twice the amount Tucson receives. Walking through the shade of Arizona white oaks and desert willows, I understood that water wasn’t far from the surface—these are thirsty trees—and that mining operations would eventually kill them.

ALMOST SINCE the mining law passed, there have been calls for reform, especially of the way its broad scope seemed to invite fraud and abuse. But the fundamentals of this complex and obtuse law remain largely intact. Even when federal agencies like the Bureau of Land Management (BLM) or the Forest Service expressed deep reservations about mining plans, the law keeps them moving forward. Both the EPA and the Army Corps of Engineers disapproved of the Rosemont mine, as did Pima County leadership, concerned it would violate the Clean Water Act. After President Donald Trump nominated David Bernhardt, a former Hudbay lobbyist, to be his secretary of the Interior, the Army Corps reversed its position without explanation and issued a necessary permit under the act. This past March, the Corps decided the mine didn’t need a Clean Water Act permit at all.

But the unfettered freedom to mine may soon be coming to an end. That’s largely thanks to the persistence of Roger Flynn, an attorney whose nonprofit Western Mining Action Project has been suing mining companies—with frequent success—for more than a quarter-century. Flynn recently helped stop a massive silver and copper mine on the boundary of national forest land in Montana’s Cabinet Mountains Wilderness, and he’s now awaiting a decision on the Rosemont case from the 9th Circuit Court of Appeals. A win there would not only stop Rosemont in its tracks; it could also forever change the face of public lands mining in the West.

Flynn got involved with the Rosemont case in 2018, when he filed suit against the Forest Service and the Rosemont Copper Company in Arizona’s US District Court on behalf of the Tucson-based Save the Scenic Santa Ritas, the Center for Biological Diversity, the Grand Canyon chapter of the Sierra Club, and the Arizona Mining Reform Coalition. He made all the expected environmental claims—that the mine would violate the Clean Water Act, the Endangered Species Act, and the National Environmental Protection Act. But he aimed most of his firepower at the wording of the Mining Act itself, which states that miners have rights to permanently occupy only those public lands that contain valuable minerals.

Flynn, in other words, wasn’t contesting Hudbay Minerals’ right to mine ore from the 1,968 acres of Santa Rita mountain land that it owned outright. His case targeted the company’s plan to dump waste from its mine on another 2,447 acres of public land. Did that land contain valuable minerals that Hudbay eventually planned to extract? The company shared no data on the land’s mineral worth, and the Forest Service declined—as it usually does—to conduct a so-called validity test before approving Rosemont’s plan. Mining companies have been claiming and dumping waste on public land adjacent to their ore-filled claims for more than half a century. But just because this has become accepted practice, Flynn argues, doesn’t mean it is legal.

A native of New Jersey, Flynn graduated from the University of Colorado Law School in 1991 and within two years founded his nonprofit law firm in the tiny town of Lyons, north of Boulder. In 2002, he began teaching at his alma mater. Every year, on the first day of his Foundations of Natural Resources Law class, Flynn— who has the twinkling mien of a very tall Keebler elf—spreads a colorful territorial map of the United States across his whiteboard. Then, in a rapid and tumbling clip, he begins to lecture his students on the history of western expansion. The nation’s natural resources laws, Flynn emphasizes, cannot be understood without this background. “What was going on in 1872?” he asks. “That is what controls the decision in the Rosemont case.”

The 19th century saw more than a billion acres of land transferred from the government—which had usurped them from Native Americans—to private owners. It was a timber, mineral, range, and water free-for-all that historian Vernon Parrington cynically called the “Great Barbecue,” with only the most powerful and influential guests invited. The point was to conquer and populate this vast expanse, produce wealth, and turn citizens into taxpayers. Laissez-faire regulation left Western miners free to generate their own codes of conduct. As Louise Clappe wrote in The Shirley Letters—a series, published in the Pioneer magazine starting in 1851, that Flynn assigns to his students—gold panners on remote California rivers, fond of acting like lawmakers, “wish to have the fun of ruling themselves.”

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