Protection of Mt. Hope Environs and Water Resources

 

 

Current Status

Reno federal district court has determined that the Mt. Hope mine plan

was approved illegally by the Bureau of Land Management

The BLM signed a record of decision (ROD) in 2019 accepting the current plan of operations and right of way for the mine.  This is the second time BLM has approved the mine. GBRW challenged the original Environmental Impact Statement (EIS) and ROD in 2013 and won at the appeal level (see below) in December 2016 when the Ninth Circuit Court of Appeals vacated the EIS and ROD, directing BLM to correct the errors.  A little over two years later, BLM issued a Supplemental EIS to address the deficiencies in the original EIS and clarify its position on the federally-protected Public Water Reserves in the region.  GBRW found problems with the Supplemental EIS, so we filed again in federal court in December 2019.

On March 31, 2023 US District Court in Reno vacated the approval of the proposed Mt Hope Molybdenum. The court concluded that, “Because BLM has not prepared any analysis regarding whether valuable mineral deposits exist on the PWR 107 lands, the Court finds that it is appropriate to remand to the agency so that it can conduct the proper analysis in the first instance.” The court “vacated” (i.e. invalidated) the BLM’s Record of Decision (ROD) and Supplementary Final Environmental Impact Statement (SFEIS).

The Mt. Hope Mine was proposed as one of the largest open pit mines in the country, and would primarily extract and process the metal molybdenum. The Mine would directly disturb 8,355 acres and indirectly disturb 22,886 acres, create 1.7 billion tons of waste rock, and 1.0 billion tons of tailings waste by the end of the 44 years of ore processing. And, bury federally protected springs, know as Public Water Reserves (PWR), and the surrounding lands permanently.

President Calvin Coolidge created PWR 107 by executive order in 1926, which withdrew qualifying springs and their surrounding land “to prevent monopolization of water needed for domestic and stock watering purposes.” This withdrawn land remained subject to the Pickett Act, which provided that “all lands withdrawn under the provisions of this Act shall at all times be open to exploration, discovery, occupation, and purchase, under the mining laws of the United States, so far as the same apply to metalliferous minerals.”

The court agreed with GBRW et al that for the lands to qualify for this exception to the PWR 107 withdrawal, there must be valuable deposits of metalliferous minerals on the lands. And that the right of ‘occupation’ under the Mining Law depends on valuable minerals having been ‘found’ on the land in question. According to the decision, “the record contains no evidence that the PWR 107 springs or surrounding lands contain molybdenite ore or any other metalliferous mineral. BLM admits that it made no attempt to determine whether EML’s mining claims are valid.” The court concluded that, “Because BLM has not prepared any analysis regarding whether valuable mineral deposits exist on the PWR 107 lands, the Court finds that it is appropriate to remand to the agency so that it can conduct the proper analysis in the first instance.”

Background

The Project would be located in Eureka County, Nevada approximately 23 miles northwest of the town of Eureka, Nevada and will consist of a proposed molybdenum mine including a power transmission line, a water well field, and all associated facilities to be located on public land administered by the BLM Mount Lewis Field Office and on private land controlled by EML (Eureka Moly LLC). The Project will utilize an open pit mining method and will process the mined ore using a flotation and roasting process.  Important aspects of the mine are summarized below:

• 1.7 billion tons of waste rock would be produced by the end of the 32-year mine life and crate 1.0 billion tons of tailings will be produced by the end of the 44 years of ore processing.  Waste rock would almost encircle the open pit at a total height ranging from 750 feet to 950 feet.
• Mining the open pit would result in an excavation of approximately 2,300 feet below the existing water table, which would be approximately 2,640 beneath the natural surface.  The pit lake that is anticipated to form in the open pit is expected to fill slowly and eventually be over 1,100 feet deep.  Water quality in the pit lake is predicted to exceed federal and state water quality standards for a number of pollutants.
• Pump groundwater at a rate of 11,250 to 12,050 afy (acre-feet per year) equivalent to 3.92 billion gallons of water pumped per year.  With the predicted pumping to last roughly 43 years, this means that, in total, up to 168.8 billion gallons of water will be removed from the Mt. Hope area by the Project’s dewatering.
• The dewatering activities would lower (draw down) the water table to predicted maximum drawdown in the bedrock of the open pit area is approximately 2,250 feet, whereas in central Kobeh Valley, the predicted maximum drawdown is approximately 120 feet near the center pumping field after 44 years of pumping.
• As a result of this dewatering, the Final EIS predicts that “22 springs two perennial stream segments (Roberts Creek and Henderson Creek) and portions of four intermittent and ephemeral stream drainages” are within the area where at least a ten-foot drop in the water level will occur (the 10-foot drawdown cone).
• The Project will result in significant and irreparable adverse impacts to the springs, seeps, waterholes and streams affected by the Project’s dewatering, especially those ground and surface waters within the 10-foot drawdown cone.
• The Project, including the new powerlines and Right-of-Ways (“ROWs”) approved in the ROD, would also significantly impact the Pony Express National Historic Trail, which was officially designated by Congress pursuant to the National Trails System Act.  Portions of the Trail within the Project site have been determined to be eligble for listing on the National Register of Historic Sites.
• Other nationally-important cultural and historical sites will be either eliminated or significantly affected, including over 260 sites eligible for the National Register of Historic Places under the National Historic Preservation Act.

The 80-year Mount Hope Project would have an 18- to 24-month construction phase, 44 years of mining and ore processing, 30 years of reclamation, and five years of post-closure monitoring. There would be no concurrent reclamation during the first 15 years of the Mount Hope Project. The years of operation presented in the Environmental Impact Statement are anticipated; however, there is a potential that the timing of the implementation or duration of components of the Mount Hope Project could vary. The Mount Hope ore body contains approximately 966 million tons of molybdenite (molybdenum disulfide) ore that would produce approximately 1.1 billion pounds of recoverable molybdenum during the ore processing time frame.

One of the residents in Diamond Valley nearest to the proposed mine said, “We own the closest private property to the Project in two directions.  Our ranch and farm are located close enough to Mount Hope to be adversely affected by the mining caused imparment of our air, incresed heeavy truck traffic, and the very real damage to our business from the massive pumping and resulting drawdown of groundwater.  Our water is not infinite.  Adding to our water over appropriation problem is very wrong.  I believe it is wrong to break laws that are in place to protect us, in the name of progress.”

“The Western Shoshone that toured the Mount Hope site in 2007 all agreed that the impacts to the water resources, loss of mature piñon/Juniper forest, and destruction of cultural sites to too high of a price for this mine, “ said Larson Bill, Western Shoshone Defense Project.  During the tour Western S

hoshone Elder Bernice Lalo of Battle Mountain said, “I don’t understand this attitude of destruction.”  Pauline Estevez, Timbisha Shoshone said as we passed a spring, “what is important is what is here now … that spring is our ancestor, it is a cultural site.”

 

The legal casel argues that “The Project will have immediate, irreparable, and permanent impacts to the local ranching and farming communities and families which have lived there since the 1860s and to the critical environmental, historical, cultural and wildlife resources that will be outright eliminated or significantly degraded by the Project.”

The case is based on three causes: (1) Failure to Protect Federal Reserved Water Rights and Withdrawn Lands, Unauthorized Disposal of Federal Property in These Waters and Lands, Violation of Public Water Reserve No. 107 and Related Laws (2) Violation of the National Environmental Policy Act (NEPA) (3) Violation of the Federal Land Policy Management Act (FLPMA).

Additional Details

The ground water withdrawals associated with the Project are predicted to cause many springs and/or waterholes to be eliminated or have substantially reduced flows. The BLM must ensure that these springs and/or waterholes are not impaired by the Project, particularly the dewatering. Springs and waterholes on public land in the West are reserved for public use by Public Water Reserve No. 107 (“PWR #107”), which was created by Executive Order by President Calvin Coolidge in 1926. PWR 107 provides:

[I]t is hereby ordered that every smallest legal subdivision of public land surveys which is vacant, unappropriated, unreserved public land and contains a spring or water hole, and all land within one quarter of a mile of every spring or water hole located on unsurveyed public land, be, and the same is hereby, withdrawn from settlement, location, sale, or entry, and reserved for public use in accordance with the provisions of Section 10 of the Act of December 29, 1916.

Under this Executive Order and related laws, BLM cannot authorize activities that will impair the public use of any reserved waters and/or lands. BLM’s approval of dewatering, and other activities associated with the Project, which could dry up or materially reduce springs and waterholes protected by PWR 107 is not in compliance with these requirements. BLM cannot dispose of federal property such as PWR 107 reserved water rights without congressional authorization, which authorization has not occurred here.

In addition, this Executive Order, related laws, and FLPMA prevents the federal government from allowing a mining operation to diminish any of the reserved waters. These waters are held pursuant to a federal reserved water right and are to be used (and protected by BLM) for the purposes of the reservation—i.e. public watering uses. Federal reserved water rights derive from federal reservations. Removing the water from these springs and/or waterholes, as a result of groundwater withdrawals from the Project or any other related activity, is prohibited.

Springs and/or waterholes that will be affected by the Project’s dewatering and other operations are utilized by livestock grazing on public land. Public lands at and near the Project, and public land and waters covered by the 1926 Executive Order and potentially affected by groundwater pumping, are covered by grazing allotments and permits issued by the BLM. The elimination or reduction of water flow at springs and/or waterholes would adversely affect the ability of livestock to utilize those water sources in the future. Reduction or loss of water flow in springs and/or waterholes used by livestock would result in the displacement of livestock from the site, and/or concentrating livestock at water sources not affected by dewatering. Destruction or loss of the reserved waters and withdrawn lands under PWR 107, including the location of Project facilities within the withdrawn lands, and/or the preclusion of public access via fencing, is prohibited under PWR 107, FLPMA, and the SRHA.

When approving the Project, BLM did not ensure that the lands would be kept and held open to the public for watering purposes. At a minimum, the lands at and around the PWR 107 springs that will be buried or significantly compromised have not been held open as required. This is true for those lands/waters directly buried and adjacent to the mine facilities, but also any such lands/waters where access will be precluded by the Project’s fence.

NEPA requires the BLM to fully analyze all mitigation measures, their effectiveness, any impacts that might result from their implementation, and consider all direct, indirect, and cumulative environmental impacts of the proposed action. Overall, BLM failed to take the required “hard look” at the Project’s direct, indirect, and cumulative impacts, as required by NEPA.

For example, BLM failed to analyze any mitigation (let alone its effectiveness) for the pit lake water quality violations and ground water impacts/loss as well as many of the air pollution emissions. The purported analysis of “mitigation” (and its effectiveness) for surface water rights, was also inadequate. The mitigation “treatment plan” for impacts to historical and cultural resources, as admitted by BLM, was also not analyzed in the draft EIS (DEIS) or final EIS (FEIS), nor subject to public review during the NEPA process. It was impossible for the public to review and comment upon this plan, as it has a right to do under NEPA, when it was only produced by the company after the FEIS was completed.

NEPA requires that BLM review, and the public have the opportunity to review and comment, on all material aspects of the Project and its impacts before decisions are made and before actions are taken, including before issuance of the FEIS. That has not occurred in this case. For example, the FEIS disavows any consideration of the impacts from the “toll roasting” of concentrates/ores at the Project. There is no mention, let alone analysis, of the impacts from these off-site mines, or a full analysis of the transportation and other impacts from the mining, hauling, and roasting of these ores. Thus, BLM failed to review the direct, indirect, and cumulative impacts associated with the toll roasting.

The Financial Guarantees (FGs) for reclamation, water and other mitigation were also not subject to the mandated public process under NEPA. The public never had the opportunity to review or comment upon the FGs, which violates NEPA’s mitigation requirements, as well as the even more fundamental requirement that the public be involved in the review of all aspects of the Project under consideration by BLM.

As noted by EPA, in urging BLM to comply with NEPA in the review and establishment of the FGs:

The Draft EIS states that drain-down solutions from the tailings storage facilities are expected to contain aluminum, antimony, cadmium, fluoride, manganese, molybdenum, and sulfate concentrations that exceed water quality standards, and will become acidic over time. Waste rock seepage will contain high concentrations of aluminum, arsenic, cadmium, fluoride, manganese, nickel, zinc, copper, iron, lead, beryllium, thallium, selenium, sulfate, and total dissolved solids. If tailings and waste rock disposal facilities, fluid collection systems, and evapotranspiration cells are not properly managed over the long-term, the project could result in significant and long-term degradation of surface water and/or groundwater quality, as well as wildlife exposure to these waters. – March 28, 2012 EPA letter to BLM.

And in in its November 13, 2012 letter to BLM EPA stated, the FEIS failed to comply with NEPA, as did the Draft EIS:

With regard to a number of other important issues, EPA finds that the Final EIS does not contain revisions responsive to the comments provided on the Draft EIS. In particular, the discussion regarding post-closure financial assurance requirements remains far too general and the EIS continues to lack a quantitative discussion of the trust fund requirement. As a result, the Final EIS does not adequately disclose information critical to determining the project’s long term environmental consequences. For this reason, EPA finds the Final EIS to be unresponsive to our comments and we continue to recommend that the EIS be formally supplemented to address our previous comments.

In their comments on the Draft EIS, the Eureka County Commissioners highlighted the Project’s severe impacts on ground and surface waters and BLM’s failure to fully review and protect these resources:

The affected natural resource that pervades the entire project and its surrounding environment is water. The DEIS’s failure to treat this resource with requisite attention, detail, and quantification affects the sustainability of this resource on its own; but perhaps more importantly, the failure to protect water produces a failure to protect resources critical to Eureka County agriculture and recreation and the health and wellbeing of the County’s residents. The County highlights as an example the superficial treatment of proposed dewatering of Roberts Creek (including the corollary of increasing groundwater extraction to pipe that substitute supply into the creek as a mitigation measure). The County questions the DEIS’s assertion that reduction in creek flow will not become significantuntil the stream is completely dewatered; and the corollary suggestion that expanding groundwater extraction, beyond that already specified for direct application to mining operations, and lacing the landscape with pipes, would provide worthy or effective mitigation. – February 28, 2012 letter from Eureka County to BLM.

GBRW comments on the project and legal briefs:

GBRW comments on the Final EIS

GBRW Letter to the BLM state director requesting reconsideration of the Record of Decision

GBRW initial legal filing  – Reno Federal District Court

GBRW legal filing  – Ninth circuit Court of Appeals

Ninth Circuit Ruling