To: U.S. Forest Service

Submitted by Nancy Freeman
188 W. Calle del Ano
Green Valley , AZ 85614
520-398-4340
January 18, 2012

We have several administrative issues with the local Forest Service's handling of the proposed Augusta Resource Corp./Rosemont Copper Mine project:

1) Adherence to 1872 mining law
2) Personnel Issues
3) Circumvention of Forest Plan Revision
4) Infractions of Travel Plan Management Rules
5) Circumvention of Conservation Projects in place by other Government agencies 

Issue One) Adherence to the 1872 mining law

The local “Foresters” claim they are obligated to follow the rules of the 1872 Mining Law, which they must have never read, and truth is, the law is hard to find. With all the devastation to our public lands being accomplished by the Government because of the 1872 Mining Law, one would think that the mining law would be posted on a Government website. An ameteur gold prospector site is the only place it can be found.

From the following, it is clear that the 1872 Mining Law does not enable this Augusta Resource Corp./Rosemont Copper Mine project and it is fallacious to insinuate that it does.

The 1872 mining states:

Claimants are to be citizens of United States :

CHAP. CL. II --- As Act to promote the Development of the mining Resources of the Untied States.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners, in the several mining-districts, so far as the same are applicable and not inconsistent with the laws of the United States .

The size of the claim is limited:

Sec.2. That mining-claims upon veins or lodes of quarts or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits heretofore located, shall be governed as to length along the vein or lode by the customs, regulations, and laws in force at the date of their location. A mining-claim located after the passage of this act, whether located by one or more persons, may equal, but not exceed, one thousand five hundred feet in length along the vein or lode; but no location of a mining-claim shall be made until the discovery of the vein or lode within the limits of the claim located. No claim shall exceed more than three hundred feet on each side of the Middle of the vein at the surface, nor shall any claim be limited by any mining regulation to less then twenty five feet on each side of the middle of the vein at the surface, except where adverse rights existing at the passage of this act shall render such limitation necessary. The end-lines of each claim shall be paralleled to each other.

The non-mineral land that is used for milling, etc. can be patented, but it is not to exceed five acres per claim.

FORTY-SECOND CONGRESS. Sess. II Ch. 152. 1872. 96

Sec. 15. That where non-mineral land not contiguous to the vein or lode is used or occupied by the proprietor of such vein or lode for mining or milling purposes , such non-adjacent surface ground may be embraced and included in an application for a patent for such vein or lode, and the same may be patented therewith , subject to the same preliminary requirements as to survey and notice as are applicable under this act to veins or lodes : Provided, That no location hereafter made of such non-adjacent land shall exceed five acres , and payment for the same must be made at the same rate as fixed by this act for the superficies of the lode. The owner of a quartz-mill or reduction-works, not owning a mine in connection therewith, may also receive a patent for his mill-site, as provided in this section.

Source: http://goldplacer.com/1872MiningLaw.htm

The General Mining Law of 1872, as amended (30 USC 29 and 43 CFR 3860, provides the successful mining claimant the right to patent (acquire absolute title to the land) mining claims or sites if they meet the statutory requirements. To meet this requirement, the successful claimant must:

1. For mining claims, demonstrate a physical exposure of a valuable (commercial) mineral deposit (the discovery) as defined by meeting the Department's Prudent Man Rule and Marketability Test.
2. For mill sites, show proper use or occupancy for uses to support a mining operation and be located on non-mineral land.
3. Have clear title to the mining claim (lode or placer) or mill site.
4. Have assessment work and/or maintenance fees current and performed at least $500 worth of improvements (not labor) for each claim (not required for mill sites).
5. Meet the requirements of the Department's regulations for mineral patenting as shown in the Code of Federal Regulations at 43 CFR 3861, 3862, 3863, and 3864.
6. Pay the required processing fees and purchase price for the land applied for. www.blm.gov/wo/st/en/info/regulations/mining_claims.html

From the 1872 Mining Law, we find four discrepancies with the current Augusta Resource Corp./Rosemont Copper Mine project:

1) Augusta Resource Directors and stockholders are not U. S. Citizens.

2) It is clear that the mining claim for the individual prospector is limited.

3) Land intended for milling, etc. is to be patented.

4) Patented land intended for milling, etc. should not exceed five acres.

In addition, the BLM website outlines statutory regulations that would nullify any permitting of the Augusta Resource Corp./Rosemont Copper Mine Mine project.

1) The company does not have clear title to the mill site. It is required by 1872 mining law that the land be patented by purchase.

2) The company must have done assessment work and/or maintenance fees of at least $500 for the life of the claim. Therefore, these claims were null and void at the time of their purchase from ASARCO. The records that show that Augusta Resource Corp./Rosemont Copper Mine has fulfilled this obligation on all their claims must be shown—except for 5 acres allowed for mill sites.

3) The company has not paid the required processing fees and purchase price for the land they have applied for to be used as waste and tailings dumps.

Issue Two: Personnel Issues

The appointment of a Forest Supervisor of the Coronado National Forest who knows nothing about mining is a questionable matter. What is the wisdom of putting a forester with no mining experience into the middle of a DEIS process? Who made the decision? What were their motives? Mr. Upchurch has been involved in lawsuits throughout is career:

1988 John Muir project vs USDA

1994 Samuels vs Forest Service, Jim Upchurch, Forester

2009 Ursack, Inc., Jacqueline Florine, Gary Fisher and Phoenix Vamvakias vs Sierra Interagency Black Bear Group, National Park Service, United States Forest Service, Craig Axtell, Michael Tollefson and Jim Upchurch

In addition, the geologist, Beverly Everson, on the project knows nothing about mining. She saw a mine for the first time when she visited Sierrita four years ago. She has no knowledge to question and analyze the data presented by Augusta Resource Corp./Rosemont Copper Mine personnel.

Issue Three: Circumvention of Forest Plan Revision

The Forest Service has circumvented an on-going (4 year) process on a revised Forest Plan. The plan that has been going through a public process has never mentioned mining. So why was the Amendment to the Forest Plan stuck into the Augusta Resource Corp./Rosemont Copper Mine DEIS with no prior public notice as the Mining Plan had been accepted by the Forest Service in 2007. The Forest Service had plenty of time to bring up their intent during 2008 to 2010. The Forest Plan should have been revised before the mine was even considered.

The current Forest Plan does not provide for mining in the proposed area. The Forest Plan contributors were most concerned about disturbance by ATV riders, while the Forest Service intends to permit haul trucks, which will have to pass through designated Forest Service land that is not on Augusta Resource Corp./Rosemont Copper Mine's property holdings.

A description of the six alternatives considered in detail in this DEIS is provided in this chapter. Only the no action alternative (alternative 1) is consistent with the management direction contained in the “ Coronado National Forest Land and Resource Management Plan,” as amended (forest plan) (U.S. Forest Service 1986). The action alternatives (alternatives 2 through 6) would require a programmatic amendment that would permanently alter the Coronado 's forest plan for the area covering the proposed project area, along with the associated plan components for that area. (pg.44) www.fs.fed.us/r3/coronado/documents/DEIS-ch2Vol1.pdf

No public notice of a new Amendment proposed in page 89 in Chapter 2 has been given. The DEIS cannot serve as a Public Notice for an Amendment because this Public Notice was not given with the release of the DEIS. A notice tucked into the back of a chapter of a 1,000 page document does not qualify under the NFMA. I have been participating and receiving notices on the Forest Plan by e-mail. I received no notice.

We are dealing with a Forest Service personnel that states “a preliminary review of the proposed amendment indicate that it would likely not be a significant amendment to the Coronado Forest Plan.” (DEIS, pg. 95) A toxic pit lake of one mile diameter forever and the destruction of 6,000 acres of forest forever that includes 33,000 mature trees is not significant? We deserve better.

Issue Four: Infractions of Travel Plan Management Rules

There are Augusta Resource Corp./Rosemont Copper Mine company contractor drill trucks on the Forest Service roads now that are not allowed according to the current Travel Management Plan, which was created by a public process.

At the present time, large drill trucks that take up the whole road in the Rosemont Junction area are a danger, much greater than ATV's. I, personally, had to replace a practically new tire because of damage from having to pull off the road into and area with sharp rocks to let a wide truck pass.

Augusta Resource Corp./Rosemont Copper Mine company water trucks were using a wash on Forest Service land as road to haul water to their Hidden Springs Ranch in a total infraction of Forest Service rules. It appears the Forest Service has stopped them, but what penalty did the company pay for their violation of rules. The back-country off-the-road vehicles pay an annual fee to ride in this area. What fees are the large industrial trucks of Augusta Resource Corp./Rosemont Mine paying? And the recreational rides pay fines for using tracks and washes not designated for travel in The Plan.

Issue Five: Forest Service circumvention of Conservation Projects in place by other Government agencies 

The Forest Service is ignoring the fine work that Pima County has done in planning for and choosing the best areas for conservation. This mine will unduly impact the water supply to this conservation project. www.pima.gov/cmo/sdcp/reports/d29/BarVReport.pdf

The Forest Service is ignoring the fine work done by BLM in the Las Cienegas National Conservation Area. This mine will unduly impact the water supply to this conservation project.
www.blm.gov/az/st/en/prog/blm_special_areas/ncarea/lascienegas.html

Issue Six: Congressional pressure to speed-up processl

The last mine to be permitted in Arizona was at Safford. It was an Arizona company with a decent environmental record, actual money in the bank, and no opposition to the mine project. The permitting took ten years. Where as Augusta Resource Corp./Rosemont Copper Mine has no environmental record (except for their Environmental Manager, who has a bad mining record in Arizona), no money in the bank [See:  http://azstarnet.com/business/local/rosemont-seeking-m-in-construction-loans/article_c35ffe32-2a97-5a2b-82dd-a898c109b870.html ] and has a lot of opposition to the mine: 18,000 persons signed a petition that they do not want mining in the Santa Ritas.

Distribution List:

Tom Tidwell, Chief USDA
Leslie Weldon, Deputy Chief USDA
Corbin Newman, FS
Dianne Guidry, FS
Jim Upchurch, FS
Senator Kyl , AZ
Senator McCain , AZ
Senator Flake, AZ (Received $6,000 in campaign donationsfrom Rosemont Copper employees)
Rep. Giffords , AZ
Rep. Grijalva , AZ  

HOME