New Mexico counties want say over hard-rock mining proposal on federal land

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Marjorie Childress

San Miguel County Commissioner Janice Varela stands at the mouth of Alamitos creek as it drains into the Pecos river.

The kids called the heaps of waste rock from a shuttered mine “the moon,” and the bare mounds of yellow mill tailings “Egypt.”

“We played there. We loved it,” recalled San Miguel County Commissioner Janice Varela. “We didn’t know.”

Growing up on the edge of the Santa Fe National Forest in New Mexico, she said, they lived with a world of mountains, rivers, and canyons at their disposal. That world just happened to include the geologic oddities of an old lead and zinc mine, mill buildings and tailings piles. People would load up the back of a pickup truck and haul the waste rock away for use around their homes, including Varela’s ex-husband, who applied it to their driveway. Her only objection, then, was that they tracked yellow footprints into the house.

That changed when the Agency for Toxic Substances and Disease Registry shut down a road into the area in the 1980s, after realizing it was covered with waste from the mill and creating a health hazard, particularly for children and pregnant women. She’s spent the decades since as a citizen watchdog of the old mine near Terroro.  For the last six months, she’s been fighting a potential new mining venture that now looms over the Pecos River.

Comexico LLC, a subsidiary of Australia-based New World Cobalt, is assessing reserves of copper, gold, silver, and zinc in the national forest. The company’s plans start with drilling 30 exploratory holes, and if it finds economically viable deposits, potentially pursuing construction of a mine. The exploratory drilling and potential mine sites lie on acreage in Santa Fe County, near the Pecos River and not far from the old Terrero mine. The forest of ponderosa pine, Gambel oak, and the occasional raspberry bush surrounding the river is about an hour’s drive from Santa Fe and Albuquerque, making it a popular destination for anglers and hikers. 

But the company may have encountered a new hurdle to regulatory approval in what otherwise might have been a business-as-usual federal permitting process.

New hard rock mining regulations for Santa Fe County signal county officials’ interest in vetting such projects before they move forward. Those regulations were drafted with other projects in mind, but approved last August as Comexico’s application wends its way through the state permitting process.

The new regulations require, in part, county-issued permits before exploratory drilling or mine construction moves forward. The ordinance also requires a description of the project including methods of mineral extraction, target minerals, and total acres disturbed, a map of all mine structures from processing facilities to waste rock piles, and reports on environmental mitigation measures and on baseline conditions on vegetation, wildlife, cultural and archaeological sites, and surface water and groundwater. 

In neighboring San Miguel County, officials have voted to seek Outstanding National Resource Water protections through the New Mexico Environment Department for the Pecos River in direct response to Comexico’s mining plans just upstream. That status would shield the river from increased pollution, according to the county resolution.

The state Environment Department clarifies that activities that might affect water quality, including a construction site’s stormwater runoff, would need additional permits. County Commissioners are drafting mining regulations similar to the Santa Fe County hard-rock mining regulations, as well. At a public meeting considering a six-month moratorium on conditional use permits for drilling in the county, they heard testimony from Pecos residents as well as from Jemez Pueblo members concerned about the possible effects on water, air, and wildlife in a place sacred to their community. 

“We don’t have to have economic development in our graveyard, in our church, in our water,” said Roger Fragua, a member of the Jemez Pueblo and executive director of the Flower Hill Institute, which seeks to preserve indigenous traditions.

Local business owner Frank Adelo added, “Each of these claims could have potential lethal consequences on the water they’re next to.”

These moves at the local level set up a collision of powers, as federal and state staff and environmental attorneys disagree on how much authority counties have over what occurs on federal land. 

For those in San Miguel County, like Varela, there’s an urgency to the question. What happens in a watershed is important to downstream communities that depend on it for municipal, domestic and agricultural use, including feeding the local acequia system. The river buttresses the local outdoor recreation economy, too. 

Pecos-area residents remember a 1991 breach at the historic mine, which spilled into the river that fed the fish hatchery near town, where 90,000 fish died. Some talk about going up after rainstorms, when intermittent streams formed and ran “yellow sludge” into the river, with buckets to scoop up dead fish to eat, Varela said. The area has since seen a multi-million-dollar restoration effort.

There are other prominent examples of mine pollution around the region. North of Pecos in the Sangre de Cristos, a stretch of the Red River below a molybdenum mine is recovering from years as a “dead river” amid ongoing work to remediate that Superfund Site. Events like the 2015 Gold King Mine spill, in which 3 million gallons of water flooded into an Animas River tributary and turned the river orange, highlight the more visible effects of accidents around historic mining operations. The river ran orange when it was filled with oxidized iron—rust—but lead and arsenic perpetually leach into it from old mines. Lead is a probable carcinogen and arsenic a confirmed carcinogen, according to the U.S. Environmental Protection Agency. That mine drainage poses an ongoing concern for watersheds around the West.

So even with 35 percent of the village of Pecos (and 29 percent of San Miguel county) living below the federal poverty level and the promise of work for 30 people now and as many as 500 if the mine advances, there’s hesitation around reviving mineral extraction.

“For what? The benefit of a handful of jobs in the short term?” Varela asked. “I don’t think we’re willing to risk our river. We are poor people and we need jobs, but not at that cost.”

The policies working in favor of the mining application range from the General Mining Act of 1872 to an executive order from the Trump administration in 2017 calling for expediting mineral development. Mike Haynes, CEO of New World Cobalt, said they’ve heard support from people who understand that daily life utilizes minerals like lead, silver, and gold, and that obtaining such minerals requires mining operations. They’ve also heard some opposition. 

Their mining claims total 4,700 acres, but it’s unlikely minerals will appear throughout that acreage, according to Haynes. Were a mine to move forward, it would occupy a small share of those acres. And much, he argued, has changed since the area was mined a century ago.

“The broad community understands there is considerably more regulatory oversight of exploration programs and mining operations than there was even 20 years ago—and that such activities are, today, routinely implemented with negligible impact on the environment,” Haynes, who is based in Australia, wrote in an email. He added that he would like to better inform people who oppose the mine about the company’s intentions, modern practices and regulations, and the benefits of these activities. 

“We engage scientists and other qualified, technical experts to ensure our activities will be implemented to the highest standards and that these activities will have minimal impact on the environment,” he continued. “And we will ensure any disturbed areas will be fully reclaimed on completion of our activities.”

Marjorie Childress

Waste from the El Molino mill just outside Pecos was impounded in Acomitos creek, an upstream tributary of the Pecos river. In 1973 the tailings dams failed, dispersing the waste downstream which caused ongoing contamination. In 1991, spring runoff led to the killing of 90,000 trout, sparking a reclamation effort, which included reconstructing Acomitos creek.

The Forest Service’s June announcement of Comexico’s plan cited the General Mining Act as evidence that it can’t bar such development. The agency can only request provisions to protect at-risk species, which include endangered Mexican spotted owls and a wildflower, the Holy Ghost ipomopsis. The company has hired a third-party contractor to conduct hydrogeologic, biological, and cultural surveys as part of its application to drill. Additional permits and surveys would accompany an application to construct a mine.

Those applications will include public hearings, said David Ohori, supervisor and senior reclamation specialist with New Mexico’s Energy, Minerals, and Natural Resources Department. The U.S. Forest Service is currently taking written comments. If public comments raise scientific concerns, Ohori said they’ll take those to the applicant to address but public opinion can’t override a technically and legally sound application.

“We base our decisions on facts and science, and of course on the law,” he said.

State agencies and the Forest Service have a memorandum of understanding to align permitting processes and jointly bond financial assurances, according to Ohori, but counties haven’t been included in that agreement.

“Although we coordinate with them to share information, the situation could occur that the Mining and Minerals permit could be approved, but yet a project could not go forward because Santa Fe County requirements were not met,” he said. 

Santa Fe County’s land development code now states applicants interested to pursue mineral exploration need to submit a conditional use permit, including a reclamation plan. The ordinance also expressly states that it applies, with some exceptions, to development on federal land.

“It’s, simply put, another permit, but really it’s an important step for the county to make sure its interests are protected, and it has a role in protecting its interests,” said Logan Glasenapp, an attorney for the New Mexico Wilderness Alliance. “As long as a county or a city is … acting under its authority to protect its citizens, to protect its climate and environment including its natural resources like water and air, it can have a say in activities that happen within its political boundaries even though it might be on federal land.”

But Tracy Parker, the Forest Service’s regional director for land and minerals, has a different read: “Federal law sort of rules here on federal land.”

Paul Robinson, research director for the Southwest Research and Information Center, a nonprofit that studies natural resource and cultural issues and offers technical assistance to communities, said judicial precedent has ruled otherwise.

“Counties have the authority to address land use in a manner that uses their authority to protect public health, safety, and welfare,” he said. “Zoning ordinances, land use protections, programs that protect public health, safety and welfare have been upheld.”

Haynes, with New World Cobalt, said their staff is working on federal and state requirements, and is “aware of Santa Fe County requirements and have held discussions with their staff.”

He also stated that all of the potential mineralization is in Santa Fe County. San Miguel County’s resolution on protecting the Pecos River from potential pollution sources includes a map showing some of the claims cross the county line.

Marjorie Childress

The mining company seeking an exploratory drilling permit posted public notice at the Terrero General Store, along with several other locations.

Santa Fe and San Miguel counties aren’t alone in their effort to have some say over nearby mining. Around the West, communities are trying a number of tactics to set priorities that differ from federal goals for mineral extraction. 

In Gardner, Montana, a gateway community for Yellowstone National Park, landowners, ranchers, nonprofits, and outfitters persuaded elected officials to add the Yellowstone Gateway Protection Act to the sweeping public lands package that passed Congress in March. The bill protected 30,370 acres of public land from a proposed gold mine less than a mile from the national park, though a smaller operation could still move forward on private land. 

When Glenwood Springs, Colorado, a destination for hiking, rafting, skiing, and soaking in hot springs, was faced with the expansion of a limestone mine from 20 to 321 acres overseen by the Bureau of Land Management, county officials imposed a six-month moratorium on new or amended mining and gravel projects to develop a comprehensive plan. The private company running that operation has sued the county, claiming it doesn’t have authority to contradict the BLM’s authorization, and that case is working through the court system. 

A judge reviewing the Rosemont Mine copper mine near Tucson ruled that the mine can’t dump waste piles on mining claims, and can only use those claims for extracting minerals. It’s a technicality, but one that hinders a mining company’s ability to do business. Again, Parker, with the Forest Service, said he doesn’t see that decision applying to the exploratory drilling being considered in New Mexico.

The old mine site is camouflaged by a cap of soil and replanted grass, but Varela said she drives up there after rainstorms and during spring snowmelt, and watches orange water bubbling into the Pecos River. 

“It’s still visible if you’re looking for it, and I do,” she said. “And that’s the best they could do—cover it up. But it’s still percolating.”

Still, she sees a silver lining. 

“Thirty years ago, it was just myself and a handful of people complaining about it, and marked as troublemakers for it,” she said, but this time, “There are a lot of people who are awake and not happy about this — and not just the environmentalists in Santa Fe. … Regular citizens are saying hell no — not just no, but hell no, you can’t have our river.”

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