Senate bill would overturn court rulings blocking Rosemont Mine

Two Western senators introduced legislation Tuesday to override federal court rulings that blocked the Rosemont Mine near Tucson and a molybdenum mine in Nevada from starting construction.

The bill would make it clearly legal for mining companies to dispose of their waste rock and tailings on federal land, even on land for which the company hasn’t established the presence of valuable minerals. A judge’s ruling that mine wastes and tailings cannot be disposed on federal land that doesn’t have valuable minerals on site has been the biggest legal stumbling block for Rosemont since 2019 and threatens to derail other Western mining projects on public land.

The legislation, introduced by senators from Nevada and Idaho and co-sponsored by Sen. Kyrsten Sinema of Arizona, would insure that mining companies can dump waste on federal land when they don’t have valid claims to extract minerals from adjoining federal land.

The bill, called the Mining Regulatory Clarity Act, would amend a 1993 law involving budgetary issues, but its language primarily clarifies definitions of activities and rights central to the 1872 Mining Law, which opened up public lands in the West to mining.

National mining industry spokesmen welcomed the bill, saying it’s a necessity to insure orderly production of minerals such as copper and lithium they call critical for producing “green energy” in solar panels and electric cars.

Environmentalists denounced the measure as a giveaway to the mining industry that they said would allow companies to turn public lands into “toxic mining waste dumps.”

A 2019 ruling by Tucson-based U.S. District Court Judge James Soto, upheld by the 9th Circuit Court of Appeals in 2022, said the proposed Rosemont project in the Santa Rita Mountains southeast of Tucson couldn’t start construction.

The rulings concluded Hudbay Minerals Inc., which proposed building Rosemont, couldn’t dispose waste rock and tailings on 2,447 acres of national forest because it hadn’t shown that land contained valuable minerals. Mine opponents persuaded the judge that under the 1872 Mining Law, federal mining rights apply only on public lands containing valuable minerals.

Rosemont, slated for the Santa Ritas’ east slope facing the Sonoita highway, would have mined copper from an open pit spanning 955 acres and going down more than a half-mile, on both private and public land.

Due to the unfavorable rulings, Hudbay has folded it into a much larger project, called Copper World, that would use exclusively private land on the range’s west slope and private and public land on the east slope for mining copper and disposing of waste rock and tailings. Its officials have said they still hope to use the Rosemont land for mining and waste disposal, but that their top short-term priority is to get mining going on private land on the west slope facing Sahuarita and Green Valley.

The ramifications of those rulings and two others affecting Nevada mining proposals are worrisome, however, for President Biden’s clean energy agenda and for key projects to mine lithium, cobalt and other materials needed to manufacture batteries for electric vehicles, the Associated Press has reported.

The bill reaffirms what its backers say are long-held practices and previous legal interpretations that some public land use under a mining claim “inherently accompanies exploration and extraction activities for other mining support activities,” said bill co-sponsor Catherine Cortez-Masto, D-Nevada.

Idaho Sen. James Risch, a Republican, joined Cortez-Masto in introducing the bill. Sinema, an independent from Arizona, joined Sen. Jacky Rosen, a Nevada Democrat, and Mike Crapo, an Idaho Republican, as cosponsors.

Referring to the 2019 court ruling blocking Rosemont, Cortez Masto said, “This misguided decision would force all mining activities, even the storage of waste, to happen on mineral-rich land, which could impede critical mineral production all across the country. This bipartisan legislation will undo the damage of this decision, allow mining operations to continue under long-standing and historic application of the law and protect the good-paying jobs this industry supports in our state.”

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In a statement to the Arizona Daily Star, Sinema said of the bill, “We’re fixing a federal court’s ruling to protect responsible critical mining projects in Arizona as we continue to strengthen America’s energy security and independence from foreign adversaries.”

Lauren Pagel, policy director of the Washington,-D.C.-based Earthworks, said the legislation would “further entrench the legacy of injustice to indigenous communities and damage to public lands held in trust for future generations.

“We need mining reform that serves the needs of mining-impacted communities and taxpayers. Instead of making it easier for irresponsible mining companies to exploit our public lands, we should modernize our mining laws to deliver a more fair, just and equitable hardrock mine permitting process,” Pagel said.

Blaine Miller-McFeeley, of the group EarthJustice, which has fought Rosemont and Copper World in court, said, “Mining companies have long abused this mining law, unlawfully claiming a right to destroy public lands to maximize profits. This proposal would condone that illegal practice, essentially giving mining companies a free pass to occupy public lands and lock out other uses.”

Sen. Mark Kelly, an Arizona Democrat, said through a spokesperson that he will review the new legislation closely, and didn’t take an immediate stand on it. He also declined to respond to a question from the Star as to whether he supports or opposes the Rosemont Mine.

“Senator Kelly knows mining is an important part of Arizona’s history and economy, and that it has to be done responsibly with consideration of the impacts on our local environment and community, especially the clean water supply as we face drought in the West,” his spokesperson said. “Senator Kelly also understands that the business community and Arizonans need certainty when it comes to federal regulations.”

National Mining Association President and CEO Rich Nolan said, in support of the bill, “Without strong leadership, the nation’s alarming mineral import dependence is poised to go from bad to worse as demand for minerals essential to our manufacturing and energy futures, as well as our national security, skyrocket. The bipartisan Mining Regulatory Clarity Act is critically important to ensuring that the U.S. can use our vast domestic resources to build the essential mineral supply chains we know we must have.”

When Soto issued his ruling at the end of July 2019, legal experts with varying pro-mining and pro-environmentalist sympathies predicted it would have national ramifications if upheld in higher courts. Two court rulings this year involving proposed Nevada mines relied on Soto’s and the 9th Circuit’s decisions, stirring more fears among mining interests that the earlier rulings could cast a major shadow over future mining operations on federal land.

In February, U.S. District Judge Miranda Du in Reno ruled that the Bureau of Land Management has violated the law by approving Lithium Americas’ plans for Thacker Pass mine near the Nevada-Oregon line. But the judge allowed mine construction to start last month, while the bureau works to bring the project into compliance with federal law. Environmentalists have appealed the judge’s refusal to halt the mine, and a court hearing on the appeal is scheduled for June 26.

Last month, U.S. Judge Larry Hicks in Reno vacated the BLM’s approval of Eureka Moly’s planned molybdenum mine about 250 miles east of Reno. In his ruling, Hicks said he found “no meaningful difference” between the BLM’s arguments justifying mining at the Nevada site and the U.S. Forest Service’s arguments regarding its approval of Rosemont.

The new bill is intended to insulate mines from the more onerous and likely more expensive standards imposed on the industry by Soto’s and the 9th Circuit ruling.

The bill would give a party filing a mining claim the right “to use, occupy and conduct operations on public land, with or without the discovery of a valuable mineral deposit,” under certain conditions.

One condition is that the mining claimant pays fees customarily owed to the feds for the right to extract minerals from the claimed land. Or, under certain circumstances a claimant would also have to comply with mining law requirements for doing assessment work on the public parcels in question.