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Withdrawing lands from mining

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Part 2 of 2

Editor’s Note: This is part 2 of a two-part series on hardrock mining in the West. Part 1 took a look at the history of mining and this one takes a look at mining now and moving forward.

A year ago, the Pueblos of Acoma, Laguna and Zuni, the Hopi Tribe and the Navajo Nation applied for and won the emergency nomination of 500,000 acres on and around Mt. Taylor as a traditional cultural property on the New Mexico State Register of Historic Places, forcing the State of New Mexico to require mining companies and federal agencies such as the Forest Service to consult with tribes before they begin additional exploratory drilling for uranium.

Rep. Raul Grijalva, D-Ariz., continues, with the support of local tribes, to fight to protect land near the Grand Canyon from uranium mining and exploration.

A federal judge recently ruled that Barrick Gold Corporation may go forward with a huge gold mine near Mt. Tenabo, a site sacred to the Western Shoshone, saying, “The effect of the proposed mining project is on the plaintiffs’ subjective, emotional experience. It is offensive to their sensibilities and in the mind of some will desecrate a sacred mountain. Nevertheless, the diminishment of that spirituality – as serious as it may be – under the Supreme Court’s holdings it is not a substantial burden on religious freedom.”

The list is endless, but legislation proposed by House Natural Resources Committee Chairman Nick J. Rahall, D-W.Va., would profoundly change things.

Under the bill, tribes may ask the secretary of the interior to withdraw lands from mining. “Any state or political subdivision of a state or an Indian tribe may submit a petition to the secretary for the withdrawal of a specific tract of federal land from the operation of the general mining laws, in order to protect specific values. … Such values may include the value of a watershed to supply drinking water, wildlife habitat value, cultural or historic resources, or value for scenic vistas important to the local economy, and other similar values. In the case of an Indian tribe, the petition may also identify religious or cultural values that are important to the Indian tribe.”

Tribes have always been allowed to ask, explained Roger Flynn of the Western Mining Action Project. “The new legislation creates the presumption of withdrawal. It shifts the burden. Instead of the petitioner proving to the federal government that there is reason to withdraw the land from mining, the federal government must show why it will not act in favor of the petitioners.”

Yavapai-Apache Nation Chairman Thomas Beauty said his tribe has been “fighting a battle at Apache Leap against [Rio Tinto’s proposed] subterranean copper operation centered right in the middle of a very important holy place to all Western Apaches. This mining law would affect that. We’re not only affected physically by adverse effects to the environment, but also culturally, which affects the spiritual health of the tribe.”

The National Mining Association, a trade organization for the mining industry, maintains this part of the legislation is unnecessary. Katie Sweeney, general counsel for the association said, “The issue that we have is that the petition must be granted unless it’s not in the national interest. There could be some delays in trying to figure out what that means, probably litigation, when we already have an existing withdrawal process that’s effective. We see that as an unnecessary provision in the bill.”

Preserving the land

The new legislation takes a serious view of mining companies’ responsibilities in regard to the land and demands financial assurances “in the form of a surety bond, a trust fund, letters of credits, government securities, certificates of deposit, cash, or an equivalent form approved by such secretary” to make sure that happens, even if the mining company goes bankrupt. “The amount of the financial assurance required under this section shall be sufficient to assure the completion of reclamation and restoration. … to meet federal and state environmental requirements,” reads the bill. The legislation would also require that the mining plan be designed to prevent material damage to the hydrologic balance outside the permit area.

“Under this legislation, the federal government cannot approve a mining permit that does not have an adequate reclamation plan and the money to execute it,” Flynn said. “It’s called the ‘walk away clean’ provision. No perpetual pollution is allowed.”

“We have a really small land base, so we’re greatly affected by surrounding regions,” said Chris Coder, Yavapai-Apache Nation archaeologist. “The largest copper strike in the world we can see from our office. It’s in Jerome. We still have the residual effects from that, including the leakage of sulfuric acid into the rivers.”

“Ten million acres of our original homeland is pockmarked with small and large mining operations – gold, vanadium, uranium,” Beauty said. And most have never been reclaimed.

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Sharing the wealth

One of the most radical – and most controversial – changes proposed in Rahall’s bill is the imposition of an eight percent royalty on the gross income on hardrock mining on public lands.

Luke Popovich, National Mining Association vice president for external communications, said the association supports a royalty, but eight percent is too high. He said many mining companies have said they could live with a four to five percent royalty. “We do support the use of royalties for abandoned mine lands cleanup. It makes a lot of sense, and would be the preferred way to use monies derived from royalties. Our main issues are the amount of the royalty and the general question of regulation. We’re looking for a regulatory scheme that doesn’t destroy the incentives for hardrock mining in the U.S.”

Sweeney said the eight percent royalty would discourage mining in the U.S, “and you’re not going to get the money you think you would for abandoned mine lands cleanup.”

The royalties, as well as other fees and penalties, would be put into a new Locatable Minerals Fund, which in turn would be comprised of two subaccounts, the Hardrock Reclamation Account and the Hardrock Community Impact Assistance Account.

Money in the Hardrock Reclamation Account would be earmarked “for the reclamation and restoration of land and water resources adversely affected by past mineral activities.”

The money in the fund (after administrative costs are taken out) would be used for a wide range of activities aimed at remediating the environmental damage caused by mining, including rectifying water pollution caused by abandoned mine drainage, reclaiming and restoring abandoned and processing areas, vegetating land and controlling surface subsidence due to abandoned underground mines.

A 1996 Government Accountability Office report, “Federal Land Management: Information on Efforts to Inventory Abandoned Hard Rock Mines,” stated that no complete inventory of abandoned mine sites exists, but “The Bureau of Mines believes that worst-case scenario costs [for cleaning up those sites] could range between $4 billion and $35.3 billion and nonfederal organizations estimate that costs could exceed $70 billion.” (In 1996 dollars.)

Here’s the critical point. Under the terms of this legislation, money from the account may be used for reclamation activities on Indian lands, “where such lands or water resources have been affected by past mineral activities,” including lands and waters that have not yet been adequately reclaimed. The money can be made available to Indian tribes.

And money in the Hardrock Community Impact Assistance Account may also go to Indian tribes “that are socially or economically impacted by mineral activities conducted under the general mining laws.”

Lynelle Hartway said the Washoe Tribe could use those funds. The Leviathan Mine, which operated on and off between the mid-1800s and mid-1900s, continues to affect traditional tribal resources. Acid water from the underground and open-pit copper sulfate, copper and sulfur mine has seeped into Leviathan Creek, Aspen Creek, Bryant Creek, and the East Fork of the Carson River, contaminating traditional fishing resources and gathering grounds. An abatement project began in 1987/88, but, Hartway, general counsel for the tribe, said more resources are needed to clean up the site and the surrounding area.

With interest mounting in new uranium exploration and mining as the U.S. and other countries plan the construction of new nuclear power plants, what happens with this legislation is critically important to Indian country. The Grants Mineral Belt, a 120-mile-long, 50-mile-wide swath of land stretching from just west of Albuquerque, N.M., to the Arizona-New Mexico border, holds one of the world’s most significant deposits of uranium. Arizona, Colorado, Idaho, Montana, Nevada, South Dakota and Wyoming are among other states in which uranium mining companies have shown interest in the past few years.

On Feb. 4, the Rahall-sponsored legislation was referred to the Subcommittee on Energy and Mineral Resources. Flynn said a similar bill was passed by the House, but gridlocked in the Senate last year. This year, he said, Sen. Jeff Bingaman, D-N.M., chairman of the Senate Energy and Natural Resources Committee, was expected to introduce the Senate version of the legislation.

Senate Majority Leader Harry Reid, D-Nev., representing the state that leads the nation in gold mining and has strong interests in silver and copper mining, said he is looking for a compromise bill. On his Web site he states, “It is essential that we develop a mining policy for today and for our future that updates the 1872 mining law. To succeed, any revision of our nation’s mining law must ensure a stable supply of strategic minerals, reasonable compensation for the use of federal lands, business certainty for mining companies, and legitimate and enforceable reclamation assurances.”

Side note

Virtually all hardrock mining in the United States takes place in the 12 Western states (Alaska, Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington and Wyoming) and most mining on federal lands is managed by the Interior Department’s Bureau of Land Management and the Agriculture Department’s Forest Service.