Anita Snow / Associated Press file (2019)
The Lavender pit mine, where a copper operation ceased in 1974, sits outside Bisbee, Ariz. U.S. Sens. Catherine Cortez Masto, a Nevada Democrat, and Jim Risch, an Idaho Republican, introduced a bill Tuesday to ensure mining companies can use lands neighboring their federal claims to dump waste as they always had before a federal appeals court adopted a stricter interpretation last year of a 150-year-old law. Envronmental groups say the legislation is a giveaway to the mining industry.
Thursday, April 27, 2023 | 2 a.m.
Nevada mining
A court ruling restricting where mining companies can dispose of tons of rock waste could have significant implications for the industry in Nevada and across the West.
While cheered by environmentalists, the stricter interpretation of a 150-year-old mining law has prompted some lawmakers, including Nevada’s U.S. senators, to seek to protect mining interests.
Last year, the San Francisco-based 9th U.S. Circuit Court of Appeals blocked the Rosemont copper mine in Arizona because the company couldn’t prove it had mineral rights on adjacent land where it planned to dispose of the rock waste.
“The misguided Rosemont decision is being used in the courts to block critical mining projects in the West,” said U.S. Sen. Catherine Cortez Masto, D-Nev., who on Tuesday helped introduce the Mining Regulatory Clarity Act. The proposed legislation seeks to codify a century of Supreme Court decisions on mining law and allow mining companies to resume processing and disposal of waste on federal lands.
“Under the decision, mining-support activities like waste or processing would be required to happen on lands that contain economically valuable minerals,” she said.
The ruling upended the government’s position that the 1872 Mining Law coveys the same rights established through a valid mining claim to adjacent land for the disposal of tailings and other waste.
The decision in the Rosemont case was a significant departure from long-held mining practices, Cortez Masto said. Without congressional action, mineral projects across the West will be in danger. Two U.S. judges in Nevada have already cited the appeals court ruling in cases here.
“It makes no economic sense for miners to use land that has commercially valuable materials to locate mining-support activities, thereby preventing access to that resource,” the senator told the Sun via email. “This bill simply reiterates that the claims process can proceed as it has previously worked.”
But the proposed legislation isn’t sitting well with environmental advocates in Nevada.
Patrick Donnelly, Great Basin director at the Center for Biological Diversity, said it would “allow the mining industry to turn public lands into toxic mining-waste dumps.”
Cortez Masto’s office said in a statement the bill would help secure “critical” minerals key to the nation’s clean energy future, and she maintained as much in her exchange with the Sun. While that may be true, Donnely said, the bill is not limited to just so-called transition minerals, like lithium and cobalt valuable to making rechargeable batteries.
“This bill is not about prioritizing transition materials or creating a supply chain for transition materials,” Donnelly said in a phone interview. “This bill gives mining companies unfettered discretion to claim literally any public land they want for any purpose they want.”
He continued: “This bill applies to all mining everywhere. So you can slap a green energy sticker on it, but that doesn’t make it a green bill. It will enable dirty, polluting mining all over the country for any mineral.”
Cortez Masto said mining operations already were restricted or outright banned on more than half of the public land owned by the federal government’s vast land holdings, and that her bill did not allow mining or related activities on public lands with such protections, like U.S. National Parks or wilderness preserves.
The Rosemont Mine would have generated 1.9 billion tons of toxic mining waste that would have been buried in more than 3,500 acres of National Forest System lands containing dozens of prehistoric tribal sites, according to Earth Justice.
The environmental group provided legal representation for the Tohono O’odham Nation, the Pascua Yaqui Tribe and the Hopi Tribe, who feared the mine would destroy their ancestral lands.
Environmentalists also point to the Questa Mine in New Mexico, from which they say 328 million tons of acid waste rock and 100 million tons of tailings had been dumped in ponds spanning nearly 3,000 acres.
In Nevada, the bill could allow New Moly Mining Corp. to cover over federally protected public springs at Mt. Hope with waste rock, said John Hadder, director of Great Basin Resource Watch.
“Given the enormous ecological and significant climate footprint of mining, the permitting needs to be careful and judicious,” Hadder said. “This bill does just the opposite.”
Donnelly said the U.S. “should be leading the world in setting the highest environmental standards for mining, especially for minerals needed for the renewable energy transition.” But it shouldn’t come at the expense of potentially damaging millions of acres of protected lands, he added.
“We need to maintain our bedrock environmental laws,” Donnelly said. “This (bill) is just a mining industry wish-list. And they found Santa Claus in Sen. Catherine Cortez Masto.”
Cortez Masto stressed the bill is critical for the mining industry in Nevada.
The Rosemont decision upends “responsible mining projects by prohibiting mining-support activities, like waste or processing, on lands that do not contain economically valuable minerals.”
Cortez Masto says the bill will protect good-paying mining jobs in Nevada. Mining generates an estimated $85 million in tax revenue annually to state coffers to help fund education.
“Nevada’s mining industry supports tens of thousands of jobs, and the state is poised to be the center of the country’s clean energy revolution because of its supply of critical minerals like lithium,” Cortez Masto said. “These new projects could support thousands of additional jobs in mining on top of thousands of jobs in the critical mineral supply chain, from battery manufacturing to recycling. This bill would allow these projects to move forward without being threatened by the misguided Rosemont decision.”
Dana Bennett, interim president of the Nevada Mining Association, said the proposed legislation would ensure the industry continued to support a strong and secure supply chain.
She praised Cortez Masto for “her steadfast support of Nevada’s mining industry.”
“Through the responsible extraction of metals and minerals, Nevada’s mining industry is essential to the nation’s future in clean energy production and transmission,” she said.
The bill is important for more than Nevada’s mining industry, and was co-introduced by Sen. Jim Risch, R-Idaho. It was cosponsored by Sens. Jacky Rosen, D-Nev.; Kyrsten Sinema, I-Ariz.; and Mike Crapo, R-Idaho.
“We rely on mineral resources every day for everything from energy to technology to national defense. Now more than ever, it is critical we are doing all we can to increase domestic production in states like Idaho, where we have rich mineral resources,” Risch said in a statement.
“The Mining Regulatory Clarity Act will ensure mining projects in Idaho and across the West can continue to operate efficiently and with responsibility,” he said.
For the United States to make the transition to 100% clean energy in a sustainable way, the domestic production of critical minerals must expand, Harry Godfrey, managing director Advanced Energy United, said in a statement.
The bill protects “workers, communities and our natural resources through sensible, transparent and efficient regulations,” he said.
Editor’s note: Sun publisher Brian Greenspun sits on the board of the mining company Barrick Gold.
