A former Coronado National Forest supervisor says his experience with the Rosemont Mine shows itโs time to overhaul the 1872 Mining Law.
Without that law โ which opened the West to mining with no federal royalties and little environmental oversight โ thereโs a reasonable chance the Rosemont proposal would have been scaled back or reshaped, and it might have even been killed, said former forest supervisor Jim Upchurch.
As supervisor from 2010 to 2015, Upchurch oversaw many of the key steps leading to the Forest Serviceโs approval of the mine. He supervised preparation of the mineโs draft and final environmental impact statements in 2011 and 2013 and issued a draft decision approving the mine in 2013.
Later, as a deputy Southwestern regional forester in Albuquerque after leaving the Coronado, he also was involved in preparing the 2017 final Rosemont decision. It was written by current Forest Supervisor Kerwin Dewberry.
Retired from the service since January 2018, Upchurch said in a recent interview that while he ultimately concluded that the mine proposal would meet all applicable laws โ a finding recently overturned by a federal judge โ he was frustrated that the mining law sharply limited his flexibility in making decisions on the project.
In particular, he pointed to what he saw as the lawโs limits on the serviceโs ability to say โnoโ to a mine on its land, on its ability to require mitigation for a mineโs effects, and on how broadly it can analyze its impacts.
It was frustrating as a public official not to be able to look at the whole project and make the best decision about the facts, he said.
โRight now, there is no flexibility,โ said Upchurch, who now lives in Albuquerque. โItโs either โdo thisโ (what the mining company proposes) or do nothing. Thereโs not much leeway.โ
The $1.9 billion Rosemont Mine carries the promise of 500 high-paying jobs over at least 20 years of operations. But the Forest Service and other federal agencies found it has myriad potential environmental effects.
The mine, including an open pit more than a half-mile deep and more than a mile in diameter, would disturb about 5,431 acres of federal, state and private land, the Forest Service has said.
Not the best place for a mine, he says
Given the many environmental issues surrounding Rosemont, Upchurch said he felt that the site in the Santa Rita Mountains southeast of Tucson wasnโt the best place for a mine.
โThat particular area has more endangered species than just about any other place in the nation,โ he said. โIt has significant water quality issues and significant archaeological issues. Itโs also an important connectivity corridor for mammals from Mexico to the U.S.
โThere are a lot better places where we could have mines with not so significant impacts,โ he said.
Upchurch declined to say, however, whether he personally supports or opposes Rosemont.
Heโs staying silent on that point because he expects to be called into court to testify on at least one of the five lawsuits now pending against Rosemont, he said. He doesnโt want to be accused of having a conflict of interest by taking a public position now.
He still sees both sides of the Rosemont dilemma.
Mines โare where the ore is. You canโt just move along because you donโt like that particular location,โ he said.
At the same time, โthat particular area has so many conflicts, it makes it difficult to come up with a solution that doesnโt affect significant resources such as (wildlife) migration, endangered species, water quality and air quality,โ he said.
โI think thereโs a place for mining. But there are places of such significance for other uses that you have to balance that out.โ
He added that society still needs the ability to provide minerals from national forests.
Decisions do take too long, he says
Upchurch is also sympathetic with the mining industry on another key point โ one that industry officials like to call โcertainty.โ
They want more predictability on how agencies will handle mining applications, and a shorter timeline for decisions.
Computer rendering of the pit and tailings pile at Rosemont Mine in the Santa Rita Mountains.
The Rosemont issue was stalled in federal agencies for 12 years after Rosemont Copper filed its proposed mining plan of operations. The final agency decision came in March 2019, when the Army Corps of Engineers approved a Clean Water Act permit.
โWeโve gotta come up with a way that doesnโt take 15 years to come to a decision,โ Upchurch said. โWe need amendments to the act to allow us to shorten the time span. That might be the trade-off we need to provide more flexibility in our decisions.โ
2nd former supervisor to call for reforms
In calling for reform of the 1872 law, Upchurch joined Jeanine Derby, his predecessor as Coronado National Forest supervisor, who made a similar pitch in an August interview with the Arizona Daily Star.
Her comments came shortly after U.S. District Judge James Soto ruled that the Forest Service had erred in approving Rosemont by improperly interpreting that law.
The law has been highly controversial for decades, but mining company lobbyists and other backers have been able to stop Congress from making major changes.
The Mining Law of 1872 lays down in its first section the basic ground rule for mining that has infuriated critics ever since.
โAll 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, and the lands to which they are found to occupation and purchase, by citizens of the United States and by those who have declared their intention to become such,โ the law says.
In addition, the law says that anyone who locates minerals on the public domain โshall have the exclusive right of possession and enjoyment of all the surfaceโ where the minerals are found, โand of all veins, lodes and ledges throughout their entire depth.โ
The law contains no provisions for how a federal agency could say โnoโ to a mine on its land.
Since then, the Forest Service and the Bureau of Land Management have generally said they donโt have that power, unless the mine would violate an environmental law.
Besides that, Upchurch said itโs a โshameโ that hard-rock mining companies pay no royalties to the federal government for minerals they extract from federal land.
Oil companies and non-hard-rock mining firms such as coal companies typically pay such royalties. Hard rock mining claim holders pay $225 in fees in the first year they file a claim, and $165 annually to maintain the claim.
Itโs also a โshameโ that the law doesnโt allow federal agencies to look as broadly at mine impacts as he would like, said Upchurch, referring to the โtotal effects of the project based on the totality of all the laws.โ
For instance, he said, the Forest Service couldnโt base its decision on whether Rosemont is in the public interest, which the Army Corps of Engineers can. Federal laws and rules also limit how broadly the Forest Service can require mitigation for a mineโs impact, he said.
Native American concerns arise
โIn a world where I could just make believe stuff, youโd be able to look at the mineโs effects on Native American culture,โ Upchurch said. โAnd can we shrink it down so itโs not such a big impact, or having different alternatives, so itโs not such a big impact?โ
He couldnโt require mitigation of Rosemont on land outside the Coronado National Forest, he said. He lacked legal jurisdiction on such lands.
Such a restriction is โpretty limited, since Rosemont may have impacts on Cienega Creek and other, sensitive Bureau of Land Management and Pima County lands,โ said Upchurch.
Also, dealing with cultural resources on the mine site that were considered sacred by three Native American tribes was hard for the Forest Service, because โwe were affecting something like 76 archaeological sites,โ Upchurch recalled.
The National Historic Preservation Act requires federal agencies to prepare a mitigation plan for such projects and to prepare a memo of agreement for agency and tribal officials โ which for Rosemont the tribal leaders refused to sign.
But if cultural artifacts are to be placed under 700 feet of mine tailings, โthereโs not much you can do except try to minimize the effects,โ Upchurch said. โThe law doesnโt allow you to not put the activity on top of archaeological sites.โ
With a more flexible mining law, โyou could better design something to fit a particular landscape. If you hypothetically had that flexibility, thereโs a reasonable chance you could do something different,โ he said.
โDecision space was limitedโ
Unlike his predecessor Derby, however, Upchurch said he never felt pressure from Forest Service higher-ups to avoid raising controversial issues internally.
For Derby, those included whether Rosemont should be allowed to dump 1.9 billion tons of waste rock and tailings on nearly 2,500 acres of forest land, when its mining claims on that land hadnโt been proven valid.
Derby told the Star in early August that she was told by Corbin Newman, then the Southwestern regional forester, to stop questioning the legality of the mine on those grounds.
It turned out they were the same grounds Judge Soto used this summer to rule that the serviceโs approval of Rosemont was โarbitrary and capricious.โ
โI donโt know her. I think I met her once. I donโt have any reaction to what she did or didnโt experience,โ Upchurch said of Derby.
After he arrived at the Coronado and started work on Rosemont, it took him six months to quit asking questions about mining claims and whether he could say โno.โ
โMy questions were probably the same as for everyone: What is my decision space? Can I say no? Is there any avenue for me to say no?โ he recalled. โI raised those questions with our Office of General Counsel, with the staff in the Washington office. I wanted to have as much decision space as possible.
โIt was pretty unanimous, that my decision space was limited. The advice from counsel, from attorneys in the Washington office, is that we donโt go through a validity exam. There is an inherent right for a person with claims to be able to use the national forest,โ he said.
โIt wasnโt that I didnโt raise the issue. It was advice of counsel. Thatโs why we hire these people. It wasnโt like, โBe quiet, donโt raise the issues.โ Itโs just this is precedent, the way the courts have ruled over the past 150 years of the mining act.โ
As for Sotoโs ruling stopping the mine, Upchurch said he wasnโt upset about it and didnโt feel that he and his agency were shot down.
โOur job was to do the best we could with the sideboards of the law that limits the discretion that we have,โ he said. โI think we did really good work with what we have. I donโt have any qualms about the courts making a different decision. I knew it would go to court at some point. Itโs not unreasonable to think the courts could come up with a different decision.โ
But for now, Upchurch wonโt say if he agrees or disagrees with the ruling. Again, as long as Rosemont is in the courts and he could be called to testify, heโs staying mum on such controversies.
