Federal lawsuit could affect Rosemont project

A lawsuit challenging a Bush administration policy that allows mines on federal land to deposit waste on valid mine claims was filed Tuesday in Federal District Court.

The lawsuit was filed by the Western Mining Action Project on behalf of the environmental group Earthworks, Tucson-based Save the Scenic Santa Ritas (SSSR), Native American nonprofit-Western Shoshone Defense Project, Great Basin Resource Watch in Nevada, and High Country Citizens’ Alliance in Colorado.

The suit will be heard by the same judge who sided with some of the same plaintiffs in a 2003 lawsuit challenging those policies. If successful, it could affect the Augusta Resource Corp.’s proposed Rosemont mine near Green Valley based on the use of their mine claims in the Coronado National Forest.

The issue of Rosemont claim validity will be one issue facing Agriculture Undersecretary Jay Jensen when he meets with the public in Green Valley and Elgin and with Augusta Resource at their minesite Saturday.

U.S. Reps. Gabrielle Giffords and Raul Grijlavla want the USDA to validate claims that Augusta has on Forest Service land, overriding the Coronado refusal to do so, and to consider a “no action” alternative under the National Environmental Policy Act (NEPA) that would halt approval of a mine.

In 2003, the Interior Department issued a regulation saying that a mine with valid claims on public land could use as many of their claims as they wished to deposit mine tailings and other wastes, even if they could otherwise be mined.

Under the 1872 Mining Act, a mine is allowed 5 acres of waste per claim on what are known as millsite claims — often around 20 acres. Prior to 2003, mine waste had to be dumped on millsite claims contiguous to valid mine claims. Following a challenge to the 2003 ruling, a Federal district court stated that since Congress had not changed the law, if the Interior Department wanted to make a new rule regarding mine wastes it would have to go through a public comment process and the NEPA review. DOI implemented their regulation without doing so.

In December 2008, in the closing days of the Bush administration, the DOI reversed a 2003 ruling by the Federal District Court stating that public lands that were used by the mining industry, but that were not valid mine or mill claims, had to receive fair market value pricing from a mine.

The court had ordered DOI to promulgate regulations overseeing the compensation, again utilizing NEPA and accompanying environmental impact statements. DOI, however, did the opposite and eliminated any fair market value requirement for mining on public lands without valid mine and mill claims

Plaintiff’s attorney Roger Flynn said, “In the case of the proposed Rosemont mine the Forest Service is telling Reps. Grijalva, Giffords and Pima County that they can’t say no to that mine on the grounds of so-called rights, and furthermore they aren’t going to check the validity of those claims because of DOI policy on mining claims. The Rosemont mine is largely on private land and their mining claims would be used largely for wastes. Now, from the Supreme Court on down the precedents are very clear: you do not have a right to mine unless your claim is valid. And you cannot dump mine wastes on a valid claim.”

Interior Secretary Ken Salazar said Tuesday he needed to see the lawsuit before commenting on Interior Department policies.

Jensen’s Chief of Staff, Rick Cooksey, said Tuesday, “As far as the lawsuit goes, we have to absorb the details of it, it’s too fresh and the undersecretary is travelling.”

The suit is filed against the Department of Interior, the Bureau of Land Management, and the Department of Agriculture, which oversees the U.S. Forest Service.