Is the Rosemont copper mine a done deal?
Both Tucson Congress members, many legislators and local governments and the majority of residents involved with the issue clearly don't want it.
But at first glance, the legal case appears heavily tilted in favor of Canada-based Augusta Resources' effort to mine copper and dispose waste rock on 4,000 acres in the Santa Rita Mountains southeast of Tucson.
The 1872 Mining Law gives mining companies clout. It's been hard to stop several other big mines in other states simply because that law exists for the explicit purpose of encouraging mineral exploration and development of federal lands.
Federal agencies that regulate mining have come down on the side of industry in recent years and there is plenty of evidence that the Rosemont case would continue that trend. There's a rich vein of statements from federal officials that a property right exists to mine public lands and that they have little choice but to approve mines once the details are worked out.
The question is, how long will these advantages last? After November's election, a new White House administration will make the decision on Rosemont.
And Congress is now considering rewriting and toughening the 1872 law — after declining to do so twice in the past 30 years. A current version, passed in the House and pending in the Senate, would for the first time say that U.S. agencies can say no to a mine that causes "undue" environmental impacts. President Bush has threatened to veto it.
If the law stays the same, the Forest Service and courts will have to decide how to interpret it in the face of strong public pressure against that mine — and the face of the 500 jobs paying an average of $59,000 a year that Rosemont would produce.
Finally, the mining law's clout will have to be stacked against more recent environmental laws such as the National Environmental Policy Act.
On Rosemont's side lie the following points:
● Under President Bush, the Forest Service and Bureau of Land Management have taken the view that there's little or nothing they can or should do to stop a new mine from going onto public land.
● The Forest Service's top official in the Southwest, Harv Fosgren, told a congressional hearing in Tucson well over a year ago that the 1872 mining law gives people a "statutory right" to enter public lands to search for and develop such minerals.
● Proposed new Forest Service regulations would spell out that property right in greater detail and with stronger emphasis than before.
● The original Forest Service notice kicking off an environmental review for the Rosemont mine last March said the review's purpose is to grant permission for Augusta to use Forest Service land "for certain activities related to operations of the Rosemont mine."
● Although environmentalists hope to use one of the oldest environmental laws on the books to stop this mine — the National Environmental Policy Act — a top Forest Service official said that's not possible.
● Another legal weapon environmentalists had hoped to use against Rosemont — the federal Clean Water Act — faded at least temporarily last week when the Army Corps of Engineers pulled back on an earlier decision that would have made it very easy to apply that law to regulate the mine's discharges into neighboring streams.
Rosemont officials have exuded confidence. Last February, Augusta's CEO told an industry gathering in Florida that the government faces a "shall issue" situation with Rosemont's mining permit — meaning it lacks discretion over whether to approve mining on federal land.
"I don't think anything can go wrong," CEO Gil Clausen said then, and added, "Obviously the political risk is very low."
"We've got a very clear path that is defined. We don't see any issues now that will make us deviate from the path that we are on," said Clausen, adding the company has "very clear and achievable milestones" ahead to start copper production by 2011.
Environmentalists expect the Forest Service to approve the mine and are primed to sue to overturn that. They disagree that the mine can't legally be turned down, however.
They will focus on such questions as whether Rosemont filed valid mining claims to the 3,000 Forest Service acres it would use — because those acres would be for dumping waste rock, not mining.
But the environmentalists are also hedging their bets.
Gayle Hartmann, president of the environmental group Save the Scenic Santa Ritas, said they may have to secure a federal buyout of the 995 acres owned by Augusta in that area — at a higher price than the $20 million Augusta originally paid — to avoid a long, difficult court battle and uncertain outcome.
"Augusta did buy private land, and if someone is going to put it in the Coronado National Forest they'd have to buy it," said Hartmann.
"But let's also look at political realities," she said. "This is more of a political deal than a legal one. The opposition to this is so broad and great I think this community as a whole won't let this mine go forward."
One key uncertainty lies in the words and attitudes of Coronado National Forest Supervisor Jeanine Derby.
In interviews last week, Derby said she could foresee an ultimate scenario in which the service would turn down Rosemont's operating plan if a critical question arises about its effect on water, for which no clear scientific answer exists.
"Everybody knows the big question here is water," Derby said. She referred to the debate over whether Rosemont's pumping of ground water will deplete the aquifer, when the mine is promising to bring in Colorado River water in a pipeline to make up for what's pumped.
Referring to the earlier comments by Regional Forester Fosgren, she said they came before there was a formal proposal for a Rosemont mining plan.
"There are effects to the surface from mining that need to be explored and analyzed," Derby said. "A mineral claim is a right to the mineral. I have the right to manage the surface and by extension the effects that extend into the surrounding area."
Derby also took issue with Augusta CEO Clausen's comments that the mine's political risk is very low. She noted the opposition that has come from the Congress members, the Pima County Board of Supervisors, every state legislator representing that area, and four city and town councils, including the Tucson City Council.
Rosemont's timetable for opening by 2011 may have to be delayed, Derby indicated. The service had planned to release a draft Environmental Impact Statement next March but that is being delayed because of the number and complexity of comments and issues, she said.
But Derby also discounted as irrelevant the fact that the vast majority of 4,000 written and telephone comments that have come into her office about Rosemont were against it.
"First of all, it's not a majority vote," she said. "Everyone anticipates it will go through the courts."
There is also the issue of the National Environmental Policy Act, which requires agencies to examine the environmental effects of a major federally approved project.
One Rosemont opponent, Sahuarita's Farmers Investment Company, has hired a former top official of the federal Council on Environmental Quality as an attorney, and will push the Forest Service to adopt a "no action" alternative.
Besides looking at water, those critics will also try to force the Forest Service to look at the mine's effects on air quality, cultural resources and climate change. The mine's trucks, for instance, will be burning significant amounts of fossil fuels that will produce greenhouse gases, said Dinah Bear, formerly the council's chief attorney.
"The mining law of 1872 doesn't exempt the Forest Service from having to follow the policy act, the Endangered Species Act and the National Historic Preservation Act," Bear said.
But an upper-level official on the Forest Service's minerals management staff, Michael Doran, said last week that the service cannot approve a "no action" alternative.
Because people have a legal right to explore and develop federal land minerals, if the Forest Service is negotiating with a company over the details of a mining plan, the agency is essentially admitting the proposed operation is reasonable and feasible, Doran said. In such cases, a "no action" choice doesn't make sense, he said.
Derby disagrees. "If you understand the 'no action' alternative is to not accept the mine plan as currently proposed, yes, I can do that," she said.
In regard to Augusta CEO Clausen's comments in February, Jamie Sturgis, the company's vice president, would not comment on whether the Forest Service can legally deny it the right to use public lands.
He said Clausen's comments stemmed from Rosemont's ownership of the surface rights for the 995 acres and the mineral rights on lands below it.
"Someone with a mining claim owns the right to minerals and to mine," Sturgis said. "As long as he can comply with the applicable laws and regulations, that includes the right to produce those minerals using the surface rights."
But back in Washington, D.C., a spokesman for the National Mining Association said federal officials have ample leeway to deny a mine a permit. The association's Paul Popovich said he believes the National Environmental Policy Act can be used to try to stop a mine.
John Leshy, a former Interior Department solicitor in the Clinton administration, authored a new regulation in 2000 that unequivocally gave the Bureau of Land Management the right to turn down new mines under certain circumstances.
In Bush's first year, Interior junked that rule in favor of one that gave little or no latitude to deny a mine. Environmentalists took that rule to court and won a ruling that says the current laws do allow mining to be stopped when its effects are undue or unnecessary.
The Forest Service rules are weaker than BLM rules, and the service has interpreted the law to mean that it cannot stop a mine even if it believes "dire environmental harm will result," Leshy said in testimony last year to Congress.
But last week in an interview, Leshy said he also believes that the service's interpretations of the law could change again, just as in the Clinton-Bush scenario.
Mark Squillace also worked for the Clinton administration, as Leshy's special assistant in 2000. But he said last week it will be very hard for environmentalists to stop Rosemont.
"If the agency is not willing to take a tough stand against the mine, there's not a whole lot of chance a private organization can stop it," he said.
The 1872 Mining Law says:
"All 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 in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law."