In a land of wild cats and scarce water, a battle over mining heats up

Tucson, ArizonaI’m perched on a ridge in the northern Santa Rita mountains, nearly 30 miles southeast of downtown Tucson. Rounded grassy hills speckled with mesquite rise to oak woodlands and rugged limestone peaks, and I can see for many miles in all directions.

The landscape is beautiful, but what’s most special doesn’t immediately announce itself. I am, for example, walking in the footsteps of the country's rarest wild cats. In the gulch just to my southwest, a jaguar roamed during his three-year stay in the range, and an ocelot was recently spotted bounding through this spot.

To the east, miles in the distance, lays a broad valley, and within it a streak of dark green—the willows and cottonwoods of Cienega Creek, which flows all year. This network of waters, at Las Cienegas National Conservation Area, provides a home to scarce animals including the Gila topminnow, a sparkly-silver, inch-long fish, and Gila chub, which are larger and more rotund. Yellow-billed cuckoos also roost here. These species, all endangered or threatened, thrive in this precious bit of desert water.

Above the valley loom the distant Whetstone mountains—where, until as recently as the 1870s, Apache warriors hid out between raids on ranches in the Cienega Valley; that era of bloodshed ended only when Geronimo and his renegades finally surrendered in 1886, forced onto reservations.

Skirmishes over the land, and way of life, persist. In this landscape, competing factions wage an escalating war over the proposed Rosemont copper mine. About a mile to the northeast, a Canadian mining company called Hudbay Minerals plans to dig a large open pit for extracting copper. Like some other big mines, this project has picked up momentum since Donald Trump was elected president. In March, the Army Corps of Engineers approved Rosemont’s crucial Clean Water Act permit, after initially recommending its denial more than two years prior. The project is “shovel-ready,” Hudbay says—but several ongoing lawsuits may stand in the way, with a cadre of environmentalists, local leaders, and indigenous people in opposition.

Water in the hills

I’m exploring the Rosemont region with biologist Chris Bugbee, who captures wild cat photos with trail cameras. Wearing cargo pants and a T-shirt, Bugbee talks with his mouth nearly closed like he’s trying to keep out flies. He exudes a deep calm peculiar to people who spend time in nature, but he speaks with soft urgency. He clearly loves animals, including the former resident jaguar—locally known as El Jefe—and his Belgian malinois, Mayke, who’s running about intently smelling the earth. The dog was trained to sniff out the scat of jaguars. Bugbee marvels that these felines’ closest living relatives are lions and leopards.

“You don’t have to go to Africa to see a big cat,” says Bugbee, who kept tabs on El Jefe during much of the jaguar’s stay in this range, from 2012 to 2015.

Puzzling over the land, I’m reminded of a quote by the writer Edward Abbey, famously poignant and prickly, who said that the desert has no heart—no center, no main thing to behold. “It presents a riddle which has no answer,” he wrote in Desert Solitaire. As somebody who loves the desert, like Abbey, I feel I know what he means, without really understanding. The way I appreciate the landscape without comprehending all of it.

That being said, this region does have a heart of sorts: the Cienega Aquifer, below us, where water has collected for millennia. It flows through dozens of springs and into Cienega Creek, supporting a rich abundance of wildlife like deer and javelina, which attract the aforementioned jaguars and ocelots, as well as mountain lions and bobcats. It’s one of only two mountain ranges in the United States where four wild cat species have been spotted recently.

The curved spine of the Santa Ritas moves south from here, connecting with the Patagonia Mountains and Mexican ranges south of that, forming a continuous rise of highlands. This connectivity allows mammals like jaguars—which have a breeding population in northwest Mexico—and birds like elegant trogons to trek up from Central America. Many tropical species are thus found in southeastern Arizona and nowhere else in the U.S. This specific spot in the northern Santa Ritas also provides wildlife corridors to the Empire Mountains, Whetstones, and Rincons to the east and north.

Perhaps even Abbey might say this area has soul, and many agree: The Tohono O’odham, Pascua Yaqui, and Hopi tribes consider this land sacred. Here they honor their ancestors, some of whom are buried in the area, and gather medicinal plants.

But a battle for the land is on.

The mine

A couple miles to the northeast, Hudbay plans to dig a conical pit in the Earth measuring a mile wide and up to 2,900 feet deep—deep enough to fit two Empire State Buildings, one atop the other. The plan entails blasting out and excavating 660 million tons of ore containing copper, and molybdenum, and dumping 1.2 billion tons of waste rock over more than 1,460 acres—nearly twice the size of Central Park—in a heap several hundred feet tall. In all, the mine would take up 4,000 acres of public land, administered by the Forest Service, and its borders would stretch within hurling distance from where I stand.

These tailings would cover miles of streams that lead into Davison Canyon, to the northeast. Runoff from the mine would run down the canyon, which eventually joins with Cienega Creek to flow into Pantano wash—a seasonal stream I’ve explored since childhood—that cuts straight through Tucson.

After excavation, the ore would be crushed and washed with water and reagents to concentrate the copper and molybdenum. Next it would be trucked out to a smelter, likely in another country. Trucks would haul an estimated 50 daily shipments of copper concentrate down the adjacent two-lane highway, scenic state route 83.

Much of the water for this process would be pumped from another aquifer, to the west of the Santa Ritas. Starting near the town of Sahuarita, Hudbay would build a pipeline to stretch over the mountains, along with eight miles of access roads, lights, and electrical lines.

To operate, the mine would use around 5 million gallons of water per day, and somewhere around 5,000 acre-feet of water per year, equivalent to the water usage of 25,000 Tucson residents, says Thomas Meixner, a hydrology professor at the University of Arizona and chair of the Cienega Watershed Partnership, a non-partisan non-profit that seeks to conserve the area’s resources and landscapes.

The pit would puncture the aquifer and drain water into it, creating a pit lake (reversing the normal flow from the aquifer to springs and creeks.) But the lake wouldn't remain static: It would evaporate water quickly, at a rate up to 240 gallons per minute, according to the U.S. Forest Service’s final Environmental Impact Statement (EIS) on the mine. "That's a lot of water," Meixner says—about as much as 3,000 people in the area use daily.

After the life of the mine, estimated at 19 years, the pit lake would form, enlarge, and keep evaporating groundwater in perpetuity. “In the human time frame, it’s forever,” says Julia Fonseca, environmental planning manager with Pima County.

The lake would eventually grow to a surface area of 213 acres (three-times the size of the Superdome), containing about as much water as Tucson uses each year. But continual evaporation and refill would concentrate metals and other chemicals. Years in the future this would create a toxic environment for many animals, exceeding chronic exposure standards for cadmium, copper, zinc, and selenium, the EIS notes.

The Cienega Aquifer flows into the Tucson basin underground and above, through the Pantano wash, contributing to the city’s groundwater and drinking water—and provides as much as 20 percent of its natural annual recharge. Rosemont’s evaporative pit lake would reduce this flow. That could pinch Tucson, which currently gets its water from the Colorado River, though that resource is politically fraught and unstable. Mine runoff would impact water quality downstream, although models differ as to how much, Meixner says.

The pit lake would lower the area’s water table, though it’s unknown to what degree and how quickly. The area remains geologically complex, struck through with various faults and rock formations that aren’t completely understood. But a lower water table could cause some springs and creeks to dry, rare trees and plants to die, and wildlife that depend on them to move or perish.

The Bureau of Land Management, which is in charge of the 42,000-acre Las Cienegas National Conservation Area east of the mine site, has repeatedly warned the Forest Service that Rosemont would likely cause parts of the area to go dry part of the year. The mine represents “a clear and present threat” to the area’s waters, the bureau has written.

Even a few dry days in Cienega Creek could be disastrous for wildlife like the topminnow. “This is really the only watershed where they are found in great numbers,” Fonseca says.

Ditto for the Chiricahua leopard frog. The population at Las Cienegas seems to have a tolerance to chytrid, the fungus that is devastating amphibians worldwide, says Randy Serraglio, a conservation advocate for the Tucson-based Center for Biological Diversity.

Pima County wanted Hudbay to fill in the pit, says the administrator, Chuck Huckelberry, but the mine wouldn’t comply. But that’s because backfilling would “cause more environmental degradation and safety concerns than leaving the pit open,” says Hudbay director of corporate communications Scott Brubacher. According to the final EIS, it would also require 16 years of around-the-clock work, and cost as much as $1 billion. A partial fill would take about three years, and cost up to $112 million.

The battle

Thanks to the 1872 General Mining Act, it’s easy and cheap to make mineral claims on federal property, and companies pay no royalities for the precious metals they dig up. The land containing the bulk of the Rosemont ore body (and its billions of dollars’ worth of copper) was bought from the government for $5 an acre—about the same rate it would’ve cost when the act was first signed, when Apaches and cowboys were still shooting each other in the Cienega valley.

Hudbay owns the rights to Rosemont’s copper because in 2014 it acquired Augusta Resources, a smaller company that proposed building a mine more than a decade ago. Hudbay says that constructing the $1.9 billion mine over three years would employ 2,500 people. During its planned 19-year life, it would provide jobs for an average of about 500 people, Brubacher says, paying wages twice the median in Pima County. It would inject billions into the local economy, he adds.

The mine is supported by Republican governor Doug Ducey, and the mining industry remains powerful in Arizona, which produces more copper than any other state. (There’s a copper star on Arizona’s flag for a reason.) Rosemont would be one of the biggest in the U.S., where there are currently 24 copper mines. Though none of these mines have come online since 2014, two are planned to begin construction later this year: One in Nevada, and another, the Gunnison mine, about 45 miles to the northeast near the Dragoon Mountains—where another Apache chief, Cochise, surrendered to the U.S. Army nearly 150 years ago.

The leadership of Pima County strongly opposes Rosemont, as do the two members of Congress whose districts the site straddles, Raúl Grijalva and Ann Kirkpatrick. Many in the area take issue with a foreign company digging up American resources, using scarce desert water, and leaving behind a mess, Serraglio says.

The mine would, of course, drastically change the landscape. What is now a series of green hills would become a pit lake and a vast mound of waste rock. Besides the impacts on animals and water, it would also produce near-constant noise and light while the mine operates, in an area famous for nights both quiet (minus the howling of coyotes and the hooting of owls) and dark, which makes it a prime spot for astronomy.

Pima County commissioned research showing that Rosemont could reduce tourism enough to eclipse the mine’s local economic benefit, Huckelberry says.

Then and now

In July 2016 it seemed like the winds had shifted against Hudbay, when the Army Corps of Engineers’ regional office in Los Angeles recommended denying the mine’s crucial 404 permit. This permitting process, which is overseen by the Environmental Protection Agency, is meant to make large projects like mines comply with the Clean Water Act. The EPA has multiple times—including in a widely circulated 2013 letter—urged the Corps to deny the permit out of concern it’d violate this act.

“The mine will irreparably undo decades of public efforts to protect drinking water supplies, biological resources and sensitive aquatic ecosystems within the Cienega Creek watershed,” the EPA wrote in another such letter to the Corps, in November 2017.

Because Ducey (and his predecessor) objected to the LA office’s ruling, the case was forwarded to the regional headquarters in San Francisco to be finalized, a process that was supposed to take six months. But in November 2016, Donald Trump was elected president. In April 2017, Trump nominated David Bernhardt to be Deputy Secretary of the Interior. Bernhardt, now Interior secretary, was a lobbyist for Hudbay from 2011 through 2015, and a consultant to them for more than a year thereafter.

The final decision was delayed for two years. Finally, in early March 2019, the Army Corps approved the mine’s 404 Clean Water Act permit. The agency didn’t explain why they reversed their decision, and didn’t respond to request for comment.

The only major necessary permit remaining, from the Forest Service, came through weeks later, in late March. The service administers the public land where much of the mine would sit.

Suits

Several groups have sued both agencies, arguing that they are violating a suite of federal laws.

One lawsuit, against the Forest Service, combines legal cases by disparate organizations including environmentalists and Native Americans, who say that the mining will violate their sacred land and destroy cultural artifacts like tomb sites. The environmental faction, which includes the Center for Biological Diversity, says the Forest Service has violated the National Environmental Policy Act, the Endangered Species Act, and other laws. Another recent suit, just filed in late March, argues that the Army Corps approval violates the Clean Water Act.

The Forest Service’s approval rests largely on the notion that they are obligated to allow mining and dumping of waste rock on federal land, because of how they interpret the 1872 Mining Act, says Roger Flynn, an environmental lawyer and adjunct professor at the University of Colorado School of Law, and founder of a public interest law firm called the Western Mining Action Project.

“They assume that Rosemont has the rights to permanent dumping without any evidence that those rights exist,” Flynn says.

According to the act, those who wish to develop mineral claims have the right to occupy land upon which valuable minerals are found. Hudbay hasn’t shown that the large tracts of federal land where they plan to dump waste rock contain such deposits, Flynn says.

U.S. District Judge James Soto essentially agreed with that logic in a groundbreaking ruling on July 31, writing that the Forest Service inappropriately approved the mine, by failing to determine whether or not Hudbay had valid mining claims on the 2,447 acres of public land where it proposed dumping tailings and mine waste. That decision has, for now, halted further work and construction on the mine—though Hudbay said in a statement that it plans to appeal—and could have wider implications for how the Forest Service deals with mining claims elsewhere. Hudbay had lined up contractors for construction and had hoped to begin work in August.

In addition, the Forest Service has argued that it is only bound to consider impacts on land that it is responsible for, and not adjoining areas or their water, he adds. Both of these arguments are critical legal errors, Flynn says, that run afoul of federal public land laws, such as the 1897 Organic Act. Brubacher disagrees, emphasizing that the mine has been in review and permitting procedures for more than a decade and conforms to all applicable laws.

Like the Forest Service, the Army Corps is only considering an inappropriately narrow set of impacts from the mine, Flynn says, examining only the impacts from the initial filling of nearby washes with earth. But the agency didn’t consider the effects of the mine’s construction and operation on the surrounding water table, water quality, wildlife, or cultural resources like burial sites, he says. The Corps, which rarely denies mining permits, got it right the first time. And its “flip-flop” could be precedent-setting, he adds.

“This is a new and very troubling position from the Corps,” Flynn says.

The Forest Service didn’t respond to questions about these points, instead referring to the agency’s voluminous EIS and record of decision. But the service added, through a spokesperson, that the agency “continues to be committed to an open and transparent process.”

A similar change in legal interpretation may be at play with the massive Pebble Mine in Alaska, which looked likely to be denied but may be on again, and the PolyMet project in Minnesota.

Serraglio and others vow to fight it to the end; while Hudbay claims that it will continue consulting with all the necessary authorities and local groups.

"Economic opportunity and environmental responsibility can co-exist," Brubacher says. He cites as an example Coleman's coralroot, a unique orchid that grows beneath oak trees. "As a result of studies sponsored by Rosemont, the known distribution of the species has been proven to expand now to over 22 locations." Mining activities might impact five of these populations, and wipe out two of them, according to the Fish and Wildlife Service.

Flawed review?

Rosemont plans to mitigate the impact of the mine by remediation work in places including Sonoita Creek, miles to the south, in a different watershed. Many scientists and environmental groups have criticized these plans as inadequate. The Nature Conservancy, which owns a high-quality preserve downstream, has objected to the plans because the activity—which includes moving a stream a few hundred feet away from a highway—could flood their property in sediment. Work that went into mitigation plans was flawed as well, according to two biologists once employed by Westland Resources, a contractor hired by Hudbay to provide data on some of the mine sites’ plants and animals.

Jan Fox, a plant biologist who worked for the company for more than eight years, says that some rare and important species were present in the Rosemont site but not recorded. This includes a small flowering vine called Thurber’s morning glory. She and others found this plant—which is listed as critically imperiled by the Coronado National Forest—within the Rosemont site, but it was not reported, she says.

Moreover, workers spent many hours looking for plants and animals that would be unlikely to be found, according to another biologist who worked for the company, Aaron Chambers. For example, his team canvassed the site for a rare butterfly called the cestus skipper (Atrytonopsis cestus), which reproduces on a plant that is not present in the Santa Ritas.

This gives the appearance of due diligence, while actually being a ruse, Chambers says. “Even a partially competent biologist would know that the habitat was poor [for it.] This was all greenwashing.”

David Cerasale, Westland’s director of natural resources, disputes these claims, saying that the rare plants Fox mentioned were “made note of” in reports prepared for Hudbay. The company didn’t decide which plants to look for—rather they were following instructions from the Forest Service, which created the list of 11 sensitive species, he adds. The Forest Service didn’t respond to questions about the list or what was reported.

Cerasale also said the company’s surveys turned up important new findings, such as populations of threatened Chiricahua leopard frogs and yellow-billed cuckoos within the perimeter of the Rosemont site.

Back to the wild

After surveying on the ridge, Bugbee and I drive through the planned mine site, past Forest Service signs saying “land of many uses,” and bullet-pecked Hudbay placards saying “no photos allowed.” Test-drilling sites have scarred the earth red, and at a guard shack that blocks a route through public land, a Hudbay security guard exits and says there’s nothing to see on the road beyond.

“They’re not doing anything yet.”

But with construction planned to begin in June, the opposition has stiffened—and there is no end in sight to the pending lawsuits. “There has been passionate feeling on both sides of the question,” Brubacher says.

Serraglio agrees. “This mine will happen over my dead body,” he says. “I can’t let myself believe they’re going to be able to do this.”