Modernizing Mining Law

Santa Fe County passes ordinance to overhaul hard rock mining regulations

By Leah Cantor | Santa Fe Reporter
August 28, 2019

The room of the county building where the Santa Fe County Board of Commissioners holds its meetings was packed Tuesday evening in anticipation of the last item on the public hearing agenda: an ordinance amending the Sustainable Land Development Code (SLDC) to include the adoption of regulations for mineral resource exploration, extraction, and processing.

The ordinance, adopted on a unanimous 5-0 vote, completely overhauls antiquated mining laws and creates the first standardized regulatory procedure for evaluating new mining activity on federal lands in the county.

"This [ordinance] spells out what our options will be to regulate all mines in the future," said commissioner Anna Hamilton commented before public comments began. Commissioner Rudy Garcia asked County Attorney R. Bruce Frederick to clarify what kind of jurisdiction the county has over federal lands.

The federal government controls zoning and the ability to determine issues of land use, but the state and counties have jurisdiction over environmental regulation of mining activities that could have countywide impacts, Frederick explained. That means the county can't ban mining in general from an area, but a specific mine proposed on federal land within county boundaries must meet the regulations set by the county to get approved.

The topic on most people's minds was mineral exploration proposed by an Australian prospector near the Pecos Wilderness, only a few miles from the old Tererro mine that left a toxic legacy site upriver from Pecos communities and has caused environmental problems since it was abandoned in the 1930s.

The proposed mine has raised interest in the county's mining rules substantially. In April, the commission held a public hearing on the new regulations that was much more sparsely attended. Most who testified this time talked about the consequences of mining in the Pecos area.

"I was raised up above the Pecos in Tererro by my grandfather and my grandmother, my great grandfather homesteaded there back in the 1880s" one man, Rick Simpson, said in an emotional comment about the impact that pollution from the old mine had on his family and community over generations. "This is our land, this is the people's land … I just hope that there are enough people here that have the cojones to stand up to whoever is doing this."

Yet the county's rules are much greater than any one mining proposal. As one man representing the New Mexico Wilderness Alliance noted while expressing support for the ordinance, "the proposal in Tererro is likely only the tip of the iceberg."

According to The Diggings, a site that records mining claims on public lands throughout the country, there are 353 active mining claims in Santa Fe County alone, and 11,213 in the state of New Mexico. Based on reports by the industry, the Trump administration's pro-mining stance will likely result in an uptick in proposed developments of active mining claims.

County staff have spent nearly three years crafting additions and amendments to the county’s mining policies. The new regulations give the county greater oversight over proposed projects, enhance environmental protections and establish a standard procedure for applying regulations to all future mining activities that fall into the category of “Developments of Countywide Impact,” which include both hard rock mining and sand and gravel mines. Provisions that apply specifically to large scale sand and gravel mines were added as well.

"Extractive operations often fail to meet the terms of their permits and are organized to protect themselves from liability, as a result, local governments frequently bear the cost of clean up," a county document states. This scenario is all too common in New Mexico, where taxpayers have paid billions to clean up toxic legacy mine sites.

To avoid getting saddled with reclamation costs in the future, under the new ordinance companies applying for mining permits will have to provide background information to the county to demonstrate compliance with laws, regulations and clean-up orders on past projects. Companies also have to prove that they can pay for all aspects of the proposed project and reclamation costs, including an annual inspection fee that the county will charge the company to pay for assessments and inspections implemented by the county.

The ordinance includes other amendments aimed at strengthening environmental protections. New projects will have to provide analysis of existing environmental conditions up front and will be required to offset their greenhouse gas emissions to net zero. Projects must not result in net loss of wildlife habitats after reclamation, and must demonstrate how they will mitigate potential impacts to water sources in the area.

Enrique Romero, the staff attorney for the New Mexico Acequia Association, commended county staff for amendments that protect water quality. "I don't know how many people know this, but in January the state engineer forbid any new well permits in the area surrounding the old Tererro mine," he said, explaining that due to the concentration of toxins from past mining activities, the state issued "a moratorium in perpetuity unless [water] quality levels improve."

The ordinance also strengthens public participation requirements.

All individuals who gave public comment at the hearing supported the ordinance. The single person to raise objections was a representative of a commercial gravel company who argued that aspects of the new regulations would be overly burdensome to gravel and sand mining operations that are often far less destructive and have much slimmer profit margins than mining for precious metals and rare minerals.

In addition to this ordinance, county commissioners also passed a separate resolution Tuesday afternoon that authorizes county involvement in the state and federal proceedings related specifically to the new Tererro mine.

This article originally appeared in the Santa Fe Reporter.

Mining in the Santa Fe National Forest?

By Radio Cafe | August 5, 2019

A mining company is exploring the possibility of mineral extraction in the National Forest near Pecos. We talk to Ralph Vigil of the New Mexico Acequia Commission and the Upper Pecos Watershed Association, and Garrett VeneKlasen of New Mexico Wild about the potential consequences to our state’s land, wildlife, and water.

Listen to the full interview here.

Pecos Prospectors

By Leah Cantor | Santa Fe Reporter
August 7, 2019

Opposition mounting as foreign mining company wants to dig for gold, copper and zinc on public lands

Ralph Vigil, the chairman of the New Mexico Acequia Commission, stands at the edge of the fields of his acequia-irrigated organic farm, looking out on the national forest that stretches to the peaks of the Pecos Wilderness. It's a place where people spend weekends hiking, fishing and camping along the mountain road that also leads past the scar of the old Tererro mine. The spot is where 2 million tons of ore were excavated in the 1920s, leading to the contamination of nearby wetlands and $28 million in remediation and environmental clean-up costs partially paid by taxpayers.

Nearby, a new mining proposal threatens to repeat history.

Comexico LLC, a Colorado subsidiary of Australian mining company New World Cobalt Ltd, wants to start prospecting in the area for gold, copper and zinc. It has secured the rights to 20 federal mining claims on 400 acres in the Jones- Hill and Macho Canyon areas of the Pecos Ranger District in Santa Fe and San Miguel counties and has secured interest in 4,300 acres of surrounding national forest.

The potential consequences have Vigil and others raising red flags.

This season, the old Terrero site is a grassy hillside arrayed in wildflowers. But Vigil remembers when it was a mess of rocky debris, open mine shafts and abandoned buildings. He remembers when the Pecos River ran yellow with acidic mineral runoff after heavy spring rainstorms in 1991, killing the trout in the river and 90,000 fish at the Lisboa Springs Fish Hatchery downstream. Even today, though reclamation efforts have helped camouflage the damage, it is still a Superfund site leaching poisons into the surrounding watershed.

"We have to protect the right to clean and healthy water. I mean, that should be our most essential right other than the right to breathe, even before freedom of speech or any other freedom we should have the freedom to clean water because that's what sustains life for all of us," says Vigil, his brow furrowed as he gazes north towards the mountains where the streams that feed the Pecos acequia system originate. "It's not just about turning on a faucet, it's about where does that water come from when that fountain turns on? It's up there, it all starts up there. A lot of people don't understand that."

In June, Comexico submitted a plan of operations to the Santa Fe National Forest and the state Energy, Minerals and Natural Resources Department's Mining and Minerals Division. It also applied for an exploratory permit for core drilling operations on up to 2.2 acres on Jones Hill.

According to the investor page of New World Cobalt's website, the company hopes "that mine development [at Jones Hill] can be advanced as quickly as practicable," and has plans for "aggressively exploring" prospects in the surrounding area, including in Dalton Canyon and Doctor Creek.

The company states that drilling could begin as early as October. However, Santa Fe National Forest Service Geologist Larry Gore tells SFR by phone that's a highly unrealistic timeline, partly due to the complexities of the terrain and wildlife habitats of the area and public pushback, but also because Comexico "keeps changing their proposal," delaying the permitting process.

Julie Anne Overton, the Officer of Public Affairs for the Forest Service, is also quick to point out that the 1872 Mining Act prohibits the Forest Service from stopping any mining activity on federal land. Overton says the Forest Service is in the process of deciding what level of assessment will be required for the new Terrero mine site.

The Upper Pecos Watershed organization is leading a coalition in the hopes of stalling the process if not stopping it altogether by demanding the most rigorous environmental and cultural review assessments called for by law under the National Environmental Policy Act.

The coalition includes Pecos residents and business owners, environmental advocacy groups, and traditional land users such as Vigil and members of the Pecos, Tesuque, and Jemez pueblos whose lands could be affected by the mine.

At the proposed mine site on Jones Hill, Garrett VeneKlasen, the northern field coordinator for New Mexico Wild, points out the little pink prospecting flags that mark out the possible locations of 30 drill holes, each 500 to 4,000 feet deep, that the company will use to assess mineral deposits.

"I really could not think of a worse place for a mine," says VeneKlasen, explaining that the mountain is at the headwater for four distinct watersheds and is home to endangered and threatened species, including the spotted owl, Rio Grande cutthroat trout and the flowering Holy Ghost ipomopsis, a plant only found wild in the Holy Ghost Canyon of the Santa Fe National Forest.

Part of the problem, he says, is that Comexico is planning to contract third-party analysts to conduct required assessments.

"The Forest Service has no plans to conduct its own surveys and is relying on experts who are getting paid by a foreign company that stands to make millions if not billions of dollars," VeneKlasen says. "How can they not see this as a clear conflict of interest?"

Overton confirms that the agency often relies on biological and archaeological surveys done by third-party contractors when they "don't have the available staff to conduct surveys internally." However, both Overton and Gore say outside consultants, even if hired by the mining company, must be reviewed by the department and meet Forest Service standards.

Though counties have no jurisdiction over federal land, in June the Board of Commissioners of San Miguel County passed a resolution in opposition to Comexico's application. The Santa Fe County Commission is set to discuss it soon, a spokeswoman tells SFR.

Tribal concerns are geared more toward the possible disturbance of cultural sites of the Pecos and Tesuque pueblos located in the area, says Roger Fragua, a member of the Jemez Pueblo and a descendant of the Pecos Pueblo.

Fragua is careful to clarify that his role in the coalition is as a member of Climate Advocates/Voces Unidas (CAVU), an environmental media organization covering the mine, and not as an official representative of any of the impacted pueblos.

"This is an opportunity for the federal government and industry to do the right thing. We are still early enough in the process for proper [tribal] consultation to occur," he says.

The permit process going forward could take months, Forest Service officials tell SFR. The next step is scoping public opinion.

This article originally appeared in the Santa Fe Reporter.

Wilderness rangers, preserving New Mexico forests

July 28, 2019
By Robert Nott | Santa Fe New Mexican

The abandoned campfire Doug Campbell found not far off of the Winsor Trail was “barely legal.”

It was also unsightly, unnecessary and unattended — sitting just past the gate leading to the wilderness section of the trail in the Santa Fe National Forest. The campsite was circled by at least a dozen large rocks, outside of which sat two very long logs.

Those who built it left trash behind too — glass, a bungee cord, burned pieces of silverware.

Campbell and a fellow wilderness ranger, Kat Deutsch, set about dismantling the site in hopes of discouraging others from using it. And then, not far away, they found another, even trashier campsite, including badly singed liquor bottles.

Dismantling and downsizing such campsites is just one of many tasks performed in the Wilderness Ranger Program, a partnership between the U.S. Forest Service’s Southwestern Region (Arizona and New Mexico) and the nonprofit New Mexico Wilderness Association. It is one of several initiatives designed to provide “on the ground” oversight of the state’s forests.

“We used to have wildlife management rangers all around the country, but that doesn’t really happen as much anymore because of a cutback in funding,” said Will Ribbans, who oversees the Wilderness Ranger program for the New Mexico Wilderness Alliance.

“It’s about being out here, being in the forests, walking the trails — how it used to be,” he said.

Wilderness rangers, preserving New Mexico forests
The Santa Fe Ski Basin is visible from Winsor Trail. Gabriela Campos/The New Mexican

The ranger teams work in eight-day shifts, often spending most of that time on multiday sojourns deep in the forest. They assess trail conditions, catalog invasive species, help visitors and backpackers out on the trail, plus inventory, disband or downsize campsites.

They also engage volunteers — including youth — in forest stewardship programs.

Most of the time, they traverse rarely or never-used trails, even finding some that nature has reclaimed. Last week, Campbell and Deutsch covered the more popular Winsor Trail as light rain from an oncoming storm fell . They found the two campsites — one of which Campbell considered barely legal because it was just about 50 feet off the closest trail.

It’s their job to inventory campsites and enter information into an app on an iPhone for data collection and analysis purposes.

Campbell, Deutsch — a North Carolina college student serving as a summer intern for the program this year — and the other Wilderness Rangers also carry saws to cut up large trees that fall over trails.

Wilderness rangers, preserving New Mexico forests
Kat Deutsch, Wilderness Ranger intern, helps dismantle a large campfire left just off the entrance to the Pecos Wilderness. The ranger program, a partnership between the Forest Service and New Mexico Wild, was created to increase wildness stewardship through trail assessment and clearing, campsite rehabilitation, public outreach and more. Gabriela Campos/The New Mexican

Finding and reporting on invasive species, such as bull thistle, is another job. Ribbans said while the rangers want to let nature “do its thing,” they also want to know the full extent of such species and what sort of impact they have on the environment.

Cleaning up and hauling out trash, if possible, is another duty. So is letting hikers know which trails may not be accessible because of flooding, snowfall or other obstacles. While it’s not the Wilderness Rangers’ job to focus on fire prevention, they report any fires, Ribbans said.

While Campbell said he’s never seen anything dangerous or unusual in the forests, he has come across human-made benches, chairs, huts and even shelves made out of wood.

He often sees elk and other nonthreatening species. He recently came upon a mountain lion burying a recent kill along one trail. He stopped long enough to figure out what to do before the cat noticed him and took off in the other direction. Campbell took a photo of the prey, a deer, half-buried nearby.

The program includes a volunteer component, in which the rangers rely on the help of one or two hardy people willing to go out on the trail for a day or two, or utilize the efforts of a group of volunteers for a specific one-day job, such as chopping up fallen trees. Next month, they will work with a band of some two dozen students from United World College outside Las Vegas, N.M., on such a project.

The program is funded with Forest Service grant money on a year-to-year basis, said Bjorn Frederickson, an acting supervisor with the Santa Fe National Forest who helped initiate the Wilderness Rangers project in 2015. The program costs $200,000 a year to cover the costs of the rangers, who work roughly May-to-September, he said.

While all parties in the project are happy with the program, he said there’s not a lot of certainty about what will happen next regarding funding. Nationally, the Forest Service’s proposed budget for fiscal year 2020 is $5.14 billion, some $800 to $900 million less than the previous year’s allocation.

“Our hope is that we can continue to provide a presence in the forest … so people can see our organizations work out there,” Frederickson said. I think the public is appreciative of seeing someone working in a professional capacity to provide direct service and contact with them.”

Sisters Storm and Darion Dorrough, who encountered Campbell and Deutsch on the Winsor Trail on Monday, agreed. Storm, who said she has been hiking the forests for about a year and a half, said it was the first time she had encountered a ranger on the trail.

“It makes me feel a lot safer to see other people around,” she said. “It’s awesome to get directional help out here, and you kind of expect to see a ranger on the trails.”

This article originally appeared in the Santa Fe New Mexican.