Game Changer: The Rosemont Copper Mine

Proposed Rosemont Coper Mine, Santa Rita Mountains, Arizona

WC recognizes that long blog posts about mining law aren’t exactly light reading, and that, rightly or wrongly, most readers aren’t all that interested in the arcana. But Center for Biological Diversity v. Davis might be one of the most important mining law decisions in the last half century, and merits at least a brief review.

The heart of the problem is the Mining Law of 1872, which allows mining companies to occupy federal land on which valuable minerals have been found, as well as non-mineral federal land for mill sites, essentially free of charge. That includes our national forests. And while forests are supposed to be lands of multiple use, while a mining company is there all other uses are excluded, and after the mining company is gone, well, the land is pretty much used up.

Davis involved a proposed copper mine in the Santa Rita Mountains south of Tucson, Arizona. A company called Rosemont Copper Company found an ore body there, filed mining claims and went through the regulatory process to start mining. The ore body isn’t all that rich. The pit would be 3,000 feet deep and 6,500 feet wide, and would produce a projected 5.88 billion pounds of copper, 194 million pounds of molybdenum, and 80 million ounces of silver.

The proposed mine would also produce 1.25 billion tons of waste rock and 660 million tons of tailings. “Waste rock” is rock that contains either no valuable minerals or minerals that would not be economical to remove. “Tailings” are rocks that remain after valuable minerals have been extracted. Rosemont proposed to dump 1.9 billion tons of waste rock and tailings near its pit, on 2,447 acres of National Forest land. The pit itself will occupy just over 950 acres. When operations cease after twenty to twenty-five years, waste rock on the 2,447 acres would be 700 feet deep and would occupy the land in perpetuity. Let’s be clear: that’s just under four square miles of waste rock and tailings, in a pile 700 feet tall.

As has been the industry practice, Rosemont filed mining claims on the land to be buried under all that debris. The land had no mining value – there were no “valuable minerals” there, and that’s the sole basis for filing mining claims. The claims were, intentionally, technically invalid. And yet Rosemont proposed to use – abuse – that land by burying that land under 700 feet of waste rock.

The Center for Biological Diversity and a number of other organizations challenged the Forest Service’s approval of Rosemont’s Mining Plan of Operation (“MPO”). The Ninth Circuit Court of Appeals, in a split decision, held that because, under the Mining Law of 1872, only a valid mining claim gives a miner the right to exclusive use of land, and because the mining claims where the waste rock was to be piled were indisputably invalid, the MPO was invalid. Rosemont would be excluding others from the land in perpetuity by burying it under 700 feet of waste rock and tailings when it had no legal right to do so. The proposed mine was stopped dead in its tracks.

Rosemont Copper will doubtlessly fight the decision. It may seek an en banc hearing before the full 9th Circuit; it may petition for certiorari to the U.S. Supreme Court. But, for now, to borrow Edwar Abbey’ phrase, large scale mining on federal lands is monkey wrenched. All the known high grade ore bodies have been exhausted. What’s left re lower grade ore bodies, often deeply buried, which means immense amounts of rock must be processed, generating staggeringly large amounts of mine waste that has to be stored somewhere. It cannot be transported very far; it’s simply not cost-effective. So the practical effect of Davis it to preclude storage of mine waste on federal land.

It’s a game-changing decision. WC has been fighting super-sized mine in environmentally sensitive areas much of his life. Davis has the potential to block all super-size mining unless and until Congress finally gets around to updating the Mining Law of 1872.

WC recognizes that minerals are critical to our economy, although there is no excuse for another gold mine. But before we wreck another chunk of our planet with a huge mine, maybe we should look at recycling to fill part of the need, instead of heavily subsidizing extraction of minerals above all else. Just a thought.

8 thoughts on “Game Changer: The Rosemont Copper Mine

  1. Thank you. It isn’t too long if it is all important. And now we have the added problem of making sure these cases don’t make it to the Supremes.

    Liked by 4 people

  2. Then the coal company came with the world’s largest shovel
    And they tortured the timber and stripped all the land
    Well they dug for their coal ‘till the land was forsaken
    Then they wrote it all down as the progress of man.

    Liked by 4 people

  3. For the herculean efforts you and others have made over the years a big thank you but from a frustrated, naive layman’s perspective, wouldn’t it just be easier for elected representatives to rescind this type of act causing these problems in too many countries ? Not going to happen of course given our political economic models but we naive ones can dream.

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    • Of course it would be better to fix the busted laws. And WC and the groups he has served with over the last 40 years have tried to persuade politicians to do that. It hasn’t worked. Arizona politicians nearly unanimously support the Rosemont Copper Mine, and are perfectly willing to cover 4 square miles of the Santa Rita Mountains under 700 feet of acid-leaching waste rock. So we go to the courts instead.


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