the death of deborah ham

Check out this New Times article published on May 21, 1998 regarding the death of "eccentric country lawyer" Deborah Ham.

The article reports that Ms. Ham led an uphill battle to keep the Carlota copper mine out of Pinto Creek. Over 10 years after her death, the battle continues.

In the December prior to her death, Ms. Ham filed suit in federal court against the U.S. Forest Service after being approached by a local group called Citizens for the Preservation of Powers Gulch and Pinto Creek. The suit asked for an injunction to keep the forest service from authorizing any work on the Carlota Mine.

The New Times article reports that Ms Ham's efforts to stall the mine project "earned her the enmity of the mining community in Miami and Globe...But she never lost her temper or her nerve."

When questions were raised whether the creek actually flowed year round, Ms. Ham found out for herself... by hiking the 20 mile length of the creek in the month of July - No small feat in the Arizona summer.

Since the death of Deborah Ham in 1998, some say that Pinto Creek has been lost to the Carlota Mine. Indeed, the mine has had it's impact on the creek. But is there anything left worth "saving"?

Maybe it's time to repeat Ms. Ham's 20 mile walk.

devil's canyon, riparian masterpiece, threatened by a mine

The following info is reprinted with permission from the Maricopa Audubon Society.


The NEPA-exempt proposed Resolution Copper Co. land swap threatens to dewater the Devil’s Canyon’s many mile riparian treasure of Fremont Cottonwood, Goodding Willow, Arizona Black Walnut, Arizona Ash, Arizona White Oak, Arizona Alder, Arizona Sycamore, Coyote Willow, and Arizona Cypress,- studded with Black and Zone-tailed Hawk nests. That legislation would vitiate Endangered Species Act and NHPA laws protecting endangered species and Native American historic and cultural sites. Fall photo: Charles Babbitt.


Devil’s Canyon: Under siege by the proposed Resolution Copper mine land swap, is a riparian masterpiece of springs, wetlands, limpid pools and breathtaking waterfalls. Some 80-90% of Arizona’s riparian wetlands, critical to the survival of Sonoran Desert birds and wildlife, have been destroyed by dams, stream diversions, mining, groundwater pumping, and grazing. Winter photo: Lisa Fitzner

January 11, 2009 heralded a courtroom victory for protecting Arizona’s vanishing Sonoran Desert streams and wetlands from destruction by mining companies, and from keeping toxic mine pollution out of the drinking water supplies of Phoenix. The joyous news was that the U.S. Supreme Court declined to hear a 9th Circuit Court of Appeals case which upheld a lawsuit brought by environmental groups (including the Maricopa Audubon Society).

The Carlota Mine, found culpable by the federal courts, besides polluting Pinto Creek, would dry up the Haunted Canyon riparian gem. Noteworthy birds seen there include the Eared Quetzal (not to be confused with Elegant Trogon). Birdwatchers from afar came to view that rare and exquisitely beautiful Mexican species. It is found in similar canyon habitats in northern Mexico. Carlota is now dewatering and destroying that canyon’s riparian vegetation.

The mine also dewaters and pollutes Pinto Creek and its unique and threatened Sonoran Desert riparian species including the Western Yellow-billed Cuckoo.

Carlota is only a few miles east of the proposed ecologically destructive, Resolution Copper Company (RCC) mine. RCC’s proposed congressional land swap would privatize and obliterate much of some 3000 acres of USFS land. It would destroy miles of one of Arizona’s Sonoran Desert riparian jewels, namely, Devil’s Canyon. RCC’s land swap would remove National Environmental Policy Act protections, and vitiate Endangered Species Act and National Historic Preservation Act protections to a treasure-trove of endangered species, riparian habitats, and Native American historic, sacred and cultural sites.

Witness the extraordinary diversity of broad-leaved tree species listed in the attached Devil’s Canyon photo captions. Tragically, the RCC’s proposed swap lands consist of mostly overgrazed, abused USFS/BLM inholdings. RCC’s swap proffers a mesquite forest monoculture adjacent to a dried up, non-flowing, sand-and-desert reach of the San Pedro River. The water table there is too deep for surface stream flow or for broad-leaved deciduous trees, the signature vegetation which makes the San Pedro unique for its birdlife and ecologic diversity.

Pinto Creek May Help Save the Chesapeake Bay

The following article appeared in the February 2009 issue of the Bay Journal of the Alliance for the Chesapeake Bay. It is reprinted here with permission from the Alliance for the Chesapeake Bay.

Top Court won't review ban on new discharges to polluted waters
The action could potentially prohibit a variety of permits that fall under the Clean Water Act

By Karl Blankenship

In an action that could have ramifications for the Chesapeake Bay and other impaired waterways, the U.S. Supreme Court in January declined to review an appeals court decision that prohibits new discharges into waterways that do not have cleanup schedules.

The court, without comment, refused to hear the appeal by Carlota Copper Co. which will be barred from getting a permit for stormwater discharges from a new mine into Arizona's Pinto Creek because the stream is impaired by excess copper.

The EPA had originally issued a permit for the discharge, but required Carlota to offset the increase by reducing pollution from an abandoned upstream mine. Nonetheless, the U.S. Ninth Circuit Court of Appeals in 2007 ruled that the permit violated the Clean Water Act because it would "cause or contribute" to the impairment of the waterway, which is not allowed by the agency's regulations.

The appeals court said the goal of the Clean Water Act, "is not simply to show a lessening of pollution, but to show how the water quality standard will be met if Carlota is allowed to discharge pollutants into the impaired waters."

The court ruled that permits could not be issued for new discharges into impaired waterways unless there is a cleanup plan and compliance schedule showing when the waterway would be removed from the impaired waters list. If pollution reductions from dischargers alone will not clean up the waterway, a plan must be developed to reduce enough pollution from nonpoint sources to achieve the goal.

The decision could potentially prohibit a variety of permits that fall under the Clean Water Act, including traditional dischargers, as well as permits for construction sites larger than one acre, large animal feedlots and stormwater systems.

Carlota, in its appeal to the Supreme Court, said the decision was a "de facto moratorium" on new permits for impaired waters. The National Association of Homebuilders and other trade organizations expressed similar concerts.

Nonetheless, the Supreme Court gave the Friends of Pinto Creek, who challenged the permit, a victory when it declined to hear the case Jan. 12 without comment.

That means the ruling is in effect for the 11 western states in the Ninth Circuit, and it could serve as a precedent for similar permit challenges across the country.

"It's a very important ruling on an issue that is precedent-setting because it had not been squarely addressed by federal courts," said Roger Flynn, an attorney handling the case for the environmental group, "We'll see if individual cases come up around the country where people argue that the permit can't be issued because of the Friends of Pinto Creek case."

It's up to the EPA to provide guidance about how to comply with the court decision. As the law was interpreted by the Ninth Circuit, the EPA would gain significant new leverage in forcing the cleanup of waters nationwide, where more than 40 percent do not meet their water quality standards 37 years after the Clean Water Act became law and promised to make all waterways "fishable and swimmable."

If applied to the Bay watershed, it's possible that new permits could be denied until a cleanup plan with compliance time frames were developed. While the states have developed "tributary strategies" in the past to guide cleanup efforts, they did not contain specific time frames for implementation.

But it's possible that the EPA could, as some observers have suggested, effectively reject the added authority by rewriting its regulations.

"My thought was the Bush EPA would consider-they sort of hinted at this-that they may try to change the regulation," Flynn said. That's possible if the case is viewed as a violation of EPA regulations, but not of the Clean Water Act itself.

"We argued that it violated the Clean Water Act, the statute, as well as the regulation," Flynn said. "Agencies can change their regulations, but those regulations can't violate the statute. The statute trumps the regulation every time. Whether the incoming EPA will follow through on that veiled implication from the Bush administration EPA, I don't know."

John Mueller, an attorney with the Chesapeake Bay Foundation, said the ruling bolsters his organization's claim in a separate suit that the EPA has not exercised its full authority to clean up the Bay. In the Bay watershed, he said, some dischargers have already begun objecting to nutrient discharge limits set in their permits by the states, and are seeking increases.

"I think that's where you apply the Pinto Creek principle that you can't continue to pollute into already impaired waters," Mueller said. "And we've got major tributaries that are impaired by nutrients, and where the heck is EPA?"

Karl is the Editor of the Bay Journal.

Pinto Creek and its tributary Haunted Canyon have long been known for their unique riparian values

Since the early 1990’s the Sierra Club has worked to prevent a mine from being built in the middle of the Pinto Creek. The news as of February 2009 is certainly mixed.

Last month, Carlota owners announced that construction of the mine was complete and production of copper had begun. The site is visible on the north side of Highway 60 just past the Top-of-the-World community and before the Pinto Creek bridge.

Downstream from the mine is the Pinto Creek Bridge

At about the same time that this announcement was being made, the US Supreme Court denied Carlota’s petition to review the 9th Circuit Court of Appeals decision from 2007 that struck down the mines’s Clean Water Act permit. This permit issued by the EPA, known as the National Pollutant Discharge Elimination System (NPDES) permit, allows the mine to discharge pollutants into Pinto Creek. After years of litigation, a decision has been made and it is now resolved that new pollution cannot be added to already polluted streams - waterways have to be cleaned up. Pinto Creek exceeds the standard for dissolved copper, most likely due to numerous abandoned mines in the area.

The implications of the court decision are not entirely clear, but it appears that if production is to continue Carlota will now - at a minimum - have to upgrade its mine to a zero-discharge facility and produce a compliance schedule to clean up the rest of the creek.

Also, while all this has been happening, Carlota announced an agreement with the nearby Pinto Valley Mine to obtain up to 200 gallons of water per minute when that mine has an excess. While the agreement might provide only intermittent low-quality water, there is now some hope that the effects of groundwater pumping on vegetation at the confluence of Pinto Creek and Haunted Canyon might be reduced if the wellfield can be pumped at less than what was originally planned. Despite a mitigation system designed to restore lost flows into the creek, numerous trees in Haunted Canyon have already died due to lower groundwater levels.

What will happen next is unclear. The sudden recession and low copper prices have caused many layoffs and some closures in the industry. The Sierra Club and our conservation partners will continue to monitor events in Pinto Creek and Haunted Canyon in the hope that this spectacular waterway remains so for a long time.

carlota: the mine that should not have been built

Reprinted with permission of Friends of Pinto Creek
January 16, 2009

Quadra Resources, present owner of the Carlota Mine, announced in December 2008 that construction of its project some 50 miles east of Phoenix was complete and production of copper had begun. The announcement may have closed a chapter in the fate of one segment of a special place called Pinto Creek, but the fight to protect the remainder of the waterway and its tributaries continue.


Pinto Creek, January 9, 2009

Pinto Creek has its origins high on the western slopes of the Pinal Mountains and flows some 31 miles through the Tonto National Forest crossing Highway 60 near the town of Miami, Arizona, and continuing northward until it empties into Roosevelt Lake. Lower Pinto Creek, along with one of its tributaries, Haunted Canyon, have long been known for their outstanding scenic, riparian, and ecological values. An 8-mile stretch of perennial Pinto Creek, beginning at the confluence of a tributary named Horrell Creek, has been found potentially eligible for Wild and Scenic River designation. Similarly, a segment of Haunted Canyon also has permanent water, and its interlocking canopy of alders, cypress, and sycamores have fascinated hikers and biologists for decades.


Haunted Canyon, January 9, 2009

In the early 1990's, a Canadian gold mining company named Cambior purchased about 300 acres of patented land that contained old copper diggings and announced to stunned environmentalists and wary federal regulators that it was planning a large open pit mine that would swallow up a mile long stretch of Pinto Creek. The site of the pit was just a few miles upstream of the possible W&SR portion of the creek. To make matters worse, the water supply for the mine was to be pumped from under the Haunted Canyon/Pinto Creek confluence and the leach pad for the mine was to be in Powers Gulch, a small tributary of Haunted Canyon. To government agencies credit, an extensive Environmental Impact Statement was prepared to analyze damage to natural resources from the mine.

Published in 1997, the EIS acknowledged much of the risk associated with the project. Pinto Creek was to flow through a man-made channel on a backfilled portion of the pit. To prevent subflows from going into the pit a cutoff wall was to be constructed upstream of the pit was to intercept water and divert it into the channel. Huge dams were to be built in Powers Gulch to prevent acidic waste from the leach pad washing down into Haunted Canyon, and a diversion channel was needed to channel Powers Gulch flows around the pad. Among the greatest risk was Haunted Canyon itself. Early pump tests quickly determined that surface flows and alluvial waters were immediately reduced when deep underground pumps were turned on, indicating direct hydrologic connectivity and thus imminent death of riparian vegetation when mining commenced. In addition, rock dumps would be located near the west side of Pinto Creek, close to the site of the Pinto Valley Mine rock dumps on the opposite side of the creek where massive spills have occurred in the past.

The Environmental Protection Agency reviewed the EIS and promptly rated it EU-3 (Environmentally Unsatisfactory/Inadequate Information), the lowest rating it assigns to projects. The EPA, along with other agencies and environmental groups, questioned a water mitigation plan that Cambior had agreed to that would pump additional water and irrigate Haunted Canyon to try to keep it alive. All agreed that other sources of water should try to be secured and brought in rather than pump from under the creek, and Cambior assured everyone that it was working toward that end and listed other potential water supplies. Dozens of other concerns were raised, including the inevitable effects of liner leaks under the leach pad, inability to neutralize the acidic leach pad after mining, impacts on air and water quality, and inadequate bonding for reclamation and accidents. Nonetheless, the EIS was approved and permits were issued, the Forest Service stating that it had to abide by the General Mining Law of 1872 which stated that all valuable mineral deposits belonging to the U.S. were to be free and open to exploration and purchase.

Thus began the battle to litigate over the future of Pinto Creek, a fight which carries on to this day. A lawsuit brought by environmental groups that argued that the Forest Service decision was wrong was easily overturned, with the Courts holding that an EIS only needs to divulge impacts to the environment, it does not have to prevent them. A second lawsuit challenging the air quality permit also failed - the Court ruling that sulfuric acid mist and emissions from ore trucks do not count in overall calculations and therefore the mine need not be licensed as a major emitter. But a third suit met with more success. Originally filed in 2000, a suit challenged the Environmental Protection Agency's Clean Water Act Permit, known by its long title the National Pollution Discharge Elimination System Permit (NPDES). After years of challenges and counterchallenges, the 9th Circuit Court of Appeals finally ruled in 2007 in favor of the plaintiffs - polluted water cannot be added to a stream that is already in violation of water quality laws. That decision stands to this day - on Jan 12, 2009 the US Supreme Court refused a request by Carlota to review the decision.

To date, none of this has deterred the current owner of the mine. After purchasing the mine from Cambior in 2005, Quadra immediately began construction trying to capitalize on the soaring price of copper. Now, to resolve its litigation problems, Quadra may try to upgrade the mine to a more expensive zero-discharge facility, negating the need for NPDES permit. And the mine owners have another tactic: if you can't meet water quality standards, get the standards changed. Attempts have been underway for several years to raise the allowable amount of dissolved copper, blaming high levels on natural background conditions instead of man-made disturbances and leaking abandoned mines that dot the landscape.

As for outside sources of water, it was never found. To this day, the mine is completely reliant on groundwater pumped from under the Pinto Creek/Haunted Canyon confluence, approximately 600 gallons per minute for the next 15 years. Sadly, parts of Haunted Canyon did not even survive pumping tests conducted in 2007 and now the irrigation system has been running overtime in an attempt to keep the Canyon alive.

A chapter may have closed, but the story is far from concluded. Laws written to protect water quality are now gaining new teeth, and long discussed mining law reform which would give agencies discretion to say no to overly destructive projects continues to move forward. Until that time, every effort should be made to protect special places like Pinto Creek.

supreme court rejects carlotta case

Reprinted with permission from the Sierra Club

Friends of Pinto Creek, Citizens for the Preservation of Powers Gulch and Pinto Creek, Maricopa Audubon Society, Sierra Club-Grand Canyon Chapter, Western Mining Action Project

For Immediate Release: January 12, 2009

Contacts:
Don Steuter, Sierra Club - Grand Canyon Chapter, 602-956-5057 or 602-253-8633
Roger Flynn, Lead Attorney, Western Mining Action Project, 303-823-5738
Tom Sonandres, Friends of Pinto Creek, 623-583-6764

Big Win for Clean Water: Supreme Court Refuses to Review Case That Struck Down Open Pit Copper Mine Permit

Downstream from the mine is the Pinto Creek Bridge

(Phoenix, AZ) Today, the United State Supreme Court denied an industry petition to review a decision by the Ninth Circuit Court of Appeals which struck down a Clean Water Act permit issued by the U.S. Environmental Protection Agency (EPA) to the Carlota Copper Company (Carlota). The permit would have authorized Carlota to release significant levels of copper and other toxic pollutants into Pinto Creek, a tributary to the Salt River, which provides a portion of Phoenix’s water supply. The Carlota Copper Project is a proposed open pit copper mine covering over 3,000 acres near the small mountain town of Globe, Arizona, about two hours east of Phoenix.

“This is a great victory for clean water and for protecting Pinto Creek,” said Don Steuter, Conservation Chair for the Sierra Club’s Grand Canyon (Arizona) Chapter. “This project’s discharges of toxic metal would have further polluted Pinto Creek, which has been listed as one of nation’s most endangered rivers due to the threat posed by the Carlota Project.”

The Ninth Circuit was the first federal court to rule on the key issue presented by the case, specifically whether the EPA or a state can issue permits for new pollution discharges into streams that already have too much pollution. These waterways are known as “impaired waters.” The EPA, the State of Arizona, and Carlota had argued that such new discharges are allowed. The Court agreed with the local and state conservation groups (Friends of Pinto Creek, Citizens for the Preservation of Powers Gulch and Pinto Creek, Maricopa Audubon Society, and the Grand Canyon Chapter of the Sierra Club) that new pollution is not allowed until the agencies address the deficiencies in the old permit as found by the 9th Circuit Court.

“The Supreme Court recognized the legal soundness of the Ninth Circuit’s decision,” said Roger Flynn, the Colorado attorney with the non-profit law firm, Western Mining Action Project, who argued the case. “The Ninth Circuit’s decision is simple: the public deserves cleaner water, not more polluted water. This case sets a national precedent to protect waters that need less pollution, not more,” said Flynn.

As recognized by the late Arizona Senator Barry M. Goldwater: “Maybe we need copper, but we also need exceptional places like Pinto Creek. We’ve lost a lot of little gems like Pinto Creek in Arizona over the years for various reasons. How many more can we afford to lose?”

"This victory is significant," said Friends of Pinto Creek coordinator, Tom Sonandres. "It should help protect Pinto Creek and Haunted Canyon as well as other rivers and streams in Arizona and throughout the country."

Sandy Bahr
Conservation Outreach Director
Sierra Club - Grand Canyon Chapter
202 E. McDowell Rd, Suite 277
Phoenix, AZ 85004
Phone (602) 253-8633
Fax (602) 258-6533
sandy.bahr@sierraclub.org