Battle Breakthrough

For five years, Mike Carson and other members of the Empire-Fagan
Coalition have been telling anyone who’ll listen that there’s something
remarkable about the ocotillo-covered hills of Davidson Canyon,
southeast of Tucson, and that the area deserves protection from mining
leases approved by the Arizona State Land Department.

Someone is finally paying attention.

Two government agencies have weighed in on a 404 permit application
filed by California Portland Cement with the U.S. Army Corps of
Engineers.

In 2007, CalPortland was issued two new leases by the Land
Department for limestone-mining claims on property in the Davidson
Canyon area. The General Mining Act of 1872 allows mining on public
lands, and Carson, president of the Empire-Fagan Coalition, has always
questioned the law—especially when such mining has the potential
to jeopardize nearby residential wells and natural water sources.

The U.S. Fish and Wildlife Service and the Environmental Protection
Agency joined more than 200 regional organizations and individuals who
filed formal protests during a recent public-comment period for the
Corps of Engineers permit-application process. If approved, the
application would allow the company to build a haul road through the
middle of Davidson Canyon—which is now considered a protected
waterway by the Arizona Department of Environmental Quality.

The Fish and Wildlife and EPA letters ask the Corps of Engineers to
do a larger-level environmental review to determine whether a permit
should be issued—particularly because the permit would allow the
company to dredge and divert washes and wetlands that directly feed
into the Cienega watershed. The road would eventually allow easier
access between the mine quarry and Highway 83.

“I’m very proud of what we’ve done,” Carson says. “Now, we’ve really
backed (CalPortland) into a corner.”

When the Tucson Weekly talked to Carson, he was getting ready
to speak with other activists in front of U.S. Department of
Agriculture Undersecretary Jay Jensen at public meetings on the
proposed Rosemont Mine, hosted by Congresswoman Gabrielle Giffords, in
Sonoita and Green Valley on Saturday, Oct. 24.

“I feel like we’re coming to this public meeting on the heels of
major success. That feels good. I hope I’m not being too dogmatic when
I explain what is going on to (Jensen), but, look, we’re up against
these people who want this resource, but these guys are doing things
they are not supposed to be doing,” Carson says.

When asked to comment, CalPortland issued a statement to the
Weekly that says the company is continuing work with the Corps
of Engineers on the permit and is working on responses to letters from
the 35-day public comment period, which ended Sept. 11.

“These responses will address the questions and comments from the
public as well as the agencies, which will include the letters from the
EPA and Game and Fish,” the statement reads. “In addition to the
response, CalPortland will be submitting an alternative analysis which
will look at other options to mining the limestone at the Empires
Quarry.”

CalPortland has started work on a part of the proposed road that
does not cross washes. A permit issued last year by Pima County allowed
the company to blade the area and begin road construction. On the
CalPortland Web site, the company confirms that it removed more than
600 cacti—with help from the Tucson Cactus and Succulent Society,
a plant-rescue organization—last spring.

In September, however, Carson and other Empire-Fagan Coalition
members went before the Pima County Board of Supervisors with concerns
that the company was not following permit guidelines and was improperly
encroaching on waterways.

According to Eric Shepp, manager of the Pima County Flood Control District’s Flood Plain Management Division, he visited the site
and determined the company has deviated from the original road plan
first approved by the county. The original permit, however, has
expired, and the county has asked the company to return with a
riparian-habitat-mitigation plan, worked out with the Corps of
Engineers, in order to receive another permit.

“That could take some time,” Shepp says.

If CalPortland’s 404 permit is rejected by the Corps, the road work
done so far would leave a scar in the area for a road going nowhere. In
response, CalPortland said in its statement: “CalPortland removed and
transplanted vegetation in areas that did not fall under permits by
Pima County Flood Control or the Army Corps of Engineers. Due to the
scrutiny of this project, the Army Corps of Engineers was notified that
we would be operating on the property. … While work was being
completed, Pima County Flood Control inspected the property and agreed
that we were working within the law and that there were no deviations
to their Flood Plain Use Permit.”

Jeffery Parsons, a senior attorney with the Western Mining Action
Project, which is representing the Empire-Fagan Coalition, says that he
found it odd that the company began work on the road before getting the
permit from the Corps of Engineers for all of the road work.

“I think it’s a bullying tactic used by the company to make
residents feel this is a done deal,” Parsons says.

The letters from Fish and Wildlife and the EPA, however, prove the
road and mine don’t have an automatic green light. Parsons says the
letters are reminiscent of the last big win the Empire-Fagan Coalition
had against mining interests, back in 2006.

The group was able to get a stay on all activities at the Andrada
Quarry at the end of Wentworth Road, from the Interior Board of Land
Appeals. Tucson’s Bureau of Land Management office had previously
approved a mining and reclamation plan for a mining lease the state
gave to W.R. Henderson Construction.

Parsons says the coalition argued that the mine’s proposed wells for
the Andrada Quarry could potentially pollute surrounding residential
wells. The BLM stated that it was impossible, because the residential
wells were much deeper than the mine well, but Parsons proved the BLM
data was inaccurate and that new data showed the wells were on a
similar level.

“Henderson, at that point, dropped their public land mining plans,”
Parsons says.

Parsons says mining companies often argue that the 1872 mining law
is an open invite, but that isn’t always true. The federal Clean Water
Act determines what the best public interests are—and that is
what the agencies need to consider during permitting processes, he
says.

This article appears in Oct 29 – Nov 4, 2009.