Created by SSSR, June 2023
Background: The Rosemont decision means better balance between mining and other uses of public lands, but it does not end mining on public lands. In May 2022, the United States Court of Appeals for the Ninth Circuit ruled that the Forest Service's assumption that Hudbay Minerals Inc. had automatic rights under the 1872 Mining Law to permanently bury thousands of acres of public land with waste dumps for its Rosemont Mine was contrary to long established law.
The main effect of the so-called Rosemont decision is that it recognized that federal land agencies have discretion to better balance competing uses of federal land, such as protecting water supplies, cultural resources, wildlife, and the local recreation economy, without having those public values automatically subservient to mining. Mining is still a valid use of public lands, it’s just that now other equally-important public values can be considered.
The Rosemont decision will not stop essential mining. Immediately after the decision, Hudbay stated that the ruling would not prevent it from eventually using thousands of acres of Coronado National Forest for its waste rock and mine tailings. “The company expects it will be able to pursue the federal permits within the constraints imposed by the Decision.”[i]
Why was Hudbay confident that it will be able to dump mining waste on federal land? Because the company knew there are already alternative methods to obtain rights to use public land. The U.S. Department of Interior recently reaffirmed those rights in a Solicitor’s opinion[ii]. The opinion states that if federal agencies follow the appropriate regulatory regime, mining companies can use land exchanges, rights-of-way and special use permits to legally dump mining waste on public land. Proponents of S. 1281 have distorted the Rosemont decision.
Despite Hudbay’s above assurances that its Rosemont project would be developed on federal lands and despite the Solicitor’s recent opinion, the bill’s proponents falsely claim that mines can only be successfully developed if Congress amends the General Mining Act of 1872 to allow mines to place tailings and other mining infrastructure on public land without valid mineral claims.
S. 1281 would be the biggest giveaway of public lands to private companies ever. Companies could claim and use public land in perpetuity for a nominal fee even where there is no economically recoverable ore. The only slight restriction would be that the land must be used for a purpose “reasonably incident” to mining activity. Such incidental purposes could include tailings dumps, buildings, roads, powerlines, and pipelines put essentially wherever the mine wants.
S. 1281 grossly overreaches what is necessary for ensuring a supply of critical minerals for the green energy transition. The bill is so broadly written that it would give mining companies most public lands they want, regardless of any particular mine’s strategic importance. It does not distinguish between minerals included on the U.S. Geological Survey’s list of critical minerals and minerals such as copper, which is not on the USGS critical minerals list because supplies are abundant.
S. 1281 would make it open season for parties to block projects by staking invalid mining claims. S. 1281 would allow speculators without valid mineral claims to occupy public land by paying a minimal location fee and claim maintenance fee. They could then block projects like high efficiency power lines needed strengthen the nation’s electricity grid. There’s a long history of speculators staking invalid mining claims in the path of major projects like water distribution systems or designation of national monuments in hopes of being bought out by the government. For example, Merle Zweifel acquired 600,000 acres of mining claims along the aqueduct route of the Central Arizona Project when it was authorized in 1968[iii]. The Federal Land Policy and Management Act (FLPMA) was amended to correct some of these problems, but S. 1281 would again allow speculators to hold public projects hostage.
S. 1281 will not bring long-term economic development to mining communities. Although mining will create some jobs, economic analyses indicate that mines typically experience unstable boom-bust cycles that do not provide communities long-term economic health. A 2012 economic analysis by Power Consulting predicted that the proposed Rosemont Mine near Tucson would likely depress the regional economy in the long term, particularly harming recreation and tourism sectors.[iv] Similarly, two Harvard University economics professors concluded that a possible copper-nickel mine in Minnesota “would lead to a boom-bust cycle that is typical of resource extraction economies, exacerbated by the likely negative effect on the recreation industry.[v] Concerns about economic harm is one reason why Pima County and the City of Tucson oppose mining in the Santa Ritas Mountains and/or S. 1281.[vi]
S. 1281 would make it easier for mines to monopolize scarce water resources needed for domestic and municipal water supplies and agriculture. The bill would facilitate larger mines with sprawling water wells and infrastructure. The Copper World-Rosemont complex alone expects to use more than 4 billion gallons of ground water per year[vii], enough to sustain 41,000 Arizona families[viii]. An exemption in Arizona’s groundwater management laws allows mines to pump as much groundwater as they want for free with virtually no regulation.
S. 1281 does nothing to reduce the massive pollution caused by mining that taxpayers are paying to clean up. According to the US Government Accountability Office, federal agencies estimate that there may be as many as 390,000 abandoned hardrock mines on federal lands alone, and the federal agencies spent $2.9 billion of taxpayer money on cleanup from 2008 to 2017. The U.S. Environmental Protection Agency estimates that hardrock mining has contaminated more than 40% of western watersheds and that the mining industry is the single-largest source of toxic waste releases in the nation.[ix] The Bureau of Land Management estimates that there are over 200,000 abandoned mine features in Arizona.[x]
S. 1281 is not needed to produce more copper for green energy projects. There are currently 25 copper mines operating in the U.S., and last year U.S. mines produced 1.3 million tons of copper[xi]. The U.S. exported 25% of that copper because of a lack of domestic smelter capacity. Rather than building new copper mines, the nation should focus on increasing capacity of existing mines and on recycling, which already contributes 32% of U.S. copper consumption.[xii]
Figure 1. West side of Santa Ritas, Copper World drill pads and access roads, 5-11-2023, EcoFlight. This is an area the Hudbay has slated for mining soon.
[i] https://hudbayminerals.com/investors/press-releases/press-release-details/2022/The-U.S.-Department-of-Justice-and-Hudbay-Receive-Rosemont-9th-Circuit-Court-Ruling-Hudbay-Continues-to-Advance-Copper-World/default.aspx [ii] https://www.doi.gov/pressreleases/interior-department-announces-updated-guidance-mining-claims [iii] Leshy, John D., The Mining Law: A Study in Perpetual Motion, 1987, p. 78. [iv][iv] Power, Thomas Michael, and Donovan S Power. 2012. “The Failure of the Rosemont Mine DEIS to Adequately Analyze the Socioeconomic Impacts of the Proposed Mine: Comments on the Draft Environmental Impact Statement for the Rosemont Copper Project A Proposed Mining Operation, Coronado National Forest, Pima County Arizona.” http://www.scenicsantaritas.org/wp-content/uploads/PowerCritiqueFinal.pdf. [v] Stock, James H., and Jacob T. Bradt. 2020. “Analysis of Proposed 20-Year Mineral Leasing Withdrawal in Superior National Forest.” Ecological Economics 174 (August): 106663. https://doi.org/10.1016/j.ecolecon.2020.106663. [vi] City of Tucson, Resolution No. 23626, approved 6/6/2023; Pima County, resolution 2023-12, approved 5/16/2023. [vii] Hudbay Minerals. 2022. “Preliminary Economic Assessment: Copper World Complex, Pima County, Arizona,” Tables 17-1 and 17-2. [viii] Arizona Department of Water Resources. n.d. “How Many Homes in Arizona, on Average, Share an Acre-Foot of Water Each Year?” Accessed June 22, 2023. https://new.azwater.gov/news/articles/2021-19-04. [ix] Olalde, Mark. 2019. “Mining Companies Pollute Waterways. Citizens Pay.” High Country News. March 18, 2019. https://www.hcn.org/articles/climate-desk-mining-companies-pollute-western-waters-citizen-pay-for-the-clean-up. [x] Bureau of Land Management. n.d. “Abandoned Mine Lands Program – Arizona.” https://www.blm.gov/programs/aml-environmental-cleanup/aml/state-information/arizona#:~:text=The%20estimate%20for%20Arizona%20is,Cleanup%20Module%20(AMSCM)%20database. [xi] US Geological Survey. 2023. “Mineral Commodity Surveys: Copper” https://pubs.usgs.gov/periodicals/mcs2023/mcs2023-copper.pdf